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Patents - An Alternative View
Monday, October 11 2004 @ 07:27 AM EDT

Almost everyone agrees that the current patent system isn't working well, but the question is, what do we do about it?

I received an email from Craig A. James, a software architect, who wishes to express an alternative view on patents. Because he believes it is unrealistic to ask that there be no software patents, he suggests alternatives. His reform proposals make some sense if you posit, as he does, that there are inevitably going to be software patents, so I agreed to publish his article, even though I personally hold the view that software patents are not a good thing.*

Craig specializes in software design and architecture for scientific systems. His best-known project was a special-purpose database specific to chemistry that revolutionized the cheminformatics industry. This link takes you to the meat of the matter. He has developed software that received a patent, U.S. Patent #4837434, in mass spectroscopy for high-performance detection of chemical compounds, and normally he is writing articles with titles like "CHORTLES: A Method for Representing Oligomeric and Template-Based Mixtures," but he sees that the current system needs reform.

I asked him what his patent does, and here is his reply:

"The patent is for an algorithm to collect data in a quadrupole mass spectrometer two to ten times faster than was previously known, without modifying the hardware. (That's 'quadrupole', not 'quadruple'.) Since mass spectrometers start at about $50,000 for the 'cheapies' and go way up from there, scientists value the speed and sensitivity of the instruments highly. This algorithm gave them huge improvements in both with no increase in cost."

If his sensible suggestions for patent reform were applied, the worst abuses in the current system would be ameliorated, but ideally, no patents on software would be, in my view, the better choice.

Concern about software patents is growing, particularly in the wake of the Sun-Kodak settlement. You might find this thoughtful Information Week article of interest. It says that the settlement covers not only Sun but anyone who licenses from them. HP, IBM and Microsoft already have licenses from Kodak:

"Just how far the settlement will protect all Java users isn't clear. Large companies--heavy users of Java for internal applications--typically don't seek a license from Sun. Also, Java is a hidden component in an increasing number of products and services, from cell phones to truck-scheduling systems. Deciding where a given company makes commercial use of Java might depend on how aggressive Kodak plans to be going forward. Kodak declined to comment on the possibility of more Java-infringement lawsuits. . . .

"Some point to the U.S. Patent & Trademark Office as a big part of the problem. The Patent Office's process of issuing software patents has all the virtues of an 18-wheeler with no brakes, says John Rymer, an analyst with Forrester Research. While the government agency is charged with protecting innovation through patents, it's issuing patents on software code that applicants claim are unique software processes without much basis in fact. 'Process patents are fairly easy to get,' Rymer says. 'There's no rigorous standards for issuing them. The result is you have conflicting and overlapping patents that aren't worth much.'"

Since there seems to be consensus that the patent process is broken, the question is, now what do we do about it? Craig has some ideas he would like us to consider.

* [Note that I altered the wording in the article to make it clear that I have not changed my views on software patents, after receiving some email asking me about it. I never intended that publishing this article be viewed as a change in my position. That is why the title is "An Alternative View", meaning alternative to mine. I hope the clarification makes it crystal clear where I stand, and I'm sorry if I gave you a fright. It isn't always possible to predict how your words will sound to others, and in this case in particular, I didn't write clearly at all.]

*************************************

Patents - An Alternative View,
by Craig A. James

Groklaw and other FOSS sites have recently advocated essentially abandoning patent protection for software, either by getting rid of software patents altogether, or by exempting FOSS from patent enforcement. This seems like a case of throwing the baby out with the bath water.

Software patents are being abused, but patents are important and useful, and with sensible reform to patent laws, patents could encourage innovation, which is the fundamental purpose of patent law.

The problem with current patent laws are many, but to list a few:

  • Patents are granted frivolously.
  • Litigation is heavily weighted in favor of large corporations; in fact, individuals and small companies simply can't litigate.
  • It is almost impossible for an innovator to know if there is a patent already covering his/her innovation.
  • Patents can be used to block use of an innovation rather than encourage its use.
  • Holders of "submarine" patents can deliberately lurk, predator-like, waiting for honest, unsuspecting innovators to invest huge amounts of time in already-patented technology. Straightforward and fair changes to patent law would completely change the landscape of patent litigation and innovation.

Suggestions

1. Require publication and public review of all software patent applications prior to issuance, regarding the key elements of a patent -- prior art, innovation, "non-obvious" technology, and that it's an actual invention.

2. Change the law, so that individuals and small businesses can investigate and rectify actual infringements with modest legal fees, and so that wealthy corporations can't force a settlement simply because their victims can't afford to litigate.

3. Shift the burden of discovery of patent infringement to the patent holder. A patent holder must actively monitor products and technology, or forfeit his/her patent rights.

4. Prohibit damages in arrears. If a patent holder discovers infringement, royalties could only be collected once the infringer has been notified and given reasonable opportunity to remove the infringing code, or enter into a royalty agreement with the patent holder. The exception would be when it can be shown that the infringer must have known or did know about the patent.

5. Require that a patent holder use the technology or lose the patent. A patent could not be simply held indefinitely. This would put an end to both "submarine" patents, and to "patent holding companies", both of which stifle innovation and impede commerce. It would also end the practice of obtaining a patent to block technology -- patents could only be used to develop and create products. Patents could not be used as a speculation commodity, and innovators would be free of unknown and unknowable legal traps.

6. Shorten the life of a software patent compared to traditional patents, to reflect the nature of the business itself. Seventeen years (now twenty) may have been appropriate for the color TV tube, but it's an absurdly long time for a software innovation. Some of these would be tricky, and surely require more careful definitions. For example, what constitutes "use it or lose it"? Guidelines would help, for example three years might be a "grace period" where the presumption of a valid patent is with the patent holder, but after three years with no product on the market, the burden of proof of ongoing activity would shift to the patent holder.

Patents have historically served an important need. Huge investments in research are often required, whether in semiconductors (the transistor), electronics (the color-TV tube) the drug industry, and many, many other industries. Including software -- I myself received a software patent for an invention that required months of research and years of development. Once the product was on the market, anyone could have copied it.

Ironically, I am also the victim of one of the most notorius software patents: The infamous "XOR Cursor" patent, #4,197,590, filed in 1978 and granted in 1980. Way back in 1976, while a student at UC Davis, I built a computer terminal for NASA that used an XOR to move the cursor around the screen. The work was published in an obscure NASA journal. Only recently did I learn that Cadtrak has collected large sums of money and successfully defended patent #4,197,590 against a number of claims, on something I invented as a sophomore computer-engineering student. Talk about "obvious to anyone versed in the art." Had our work for NASA been more widely published, or if I'd worked in a job where I might have run into the Cadtrak controversy, Cadtrak would probably have lost the patent. Instead, I only found out about the XOR patent last year, after it had expired.

There is no doubt that software patents are being abused.

But to throw the proverbial baby out with the bathwater is to ignore the critical role patents have played in some of the greatest inventions in history. Take one example: Zantac, sold by GSK (formerly Glaxo). Zantac was said to be the single most lucrative product in the history of commerce in the world (it may have been passed by ibiblio by now...) Before its invention, stomach-removal surgery was the most common surgery in the United States, because bleeding ulcers were often uncurable and fatal. Now surgeons hardly remember how to perform the operation - it's only done for morbid obesity. Zantac is a virtual miracle drug, vastly improving millions of peoples' lives. And we're not talking about headaches here. We're talking life or death.

Zantac would not have been developed without patent protection. The cost to bring a drug to market is measured in the hundreds of millions to billions of dollars.

Unfortunately, the drug industry is abusing the patent process. For example, they often file ten bogus patents for every bona-fide patent, in an attempt to obfuscate what they're really working on. They file blocking patents to prevent new drugs that would compete with their lucrative products. They've been accused of using their monopolistic position for a particular disease to reap huge profits, to the detriment of society and sick individuals.

A software invention doesn't require the same massive investment as a drug, but it's not free, either. A true innovation, one that's worth patenting, should come from hard work, insight and genius. And the inventor should be able to reap the benefits of his or her invention, by receiving some period of exclusive use.

While I sympathize with those frustrated by the abuse of software patents, I believe it is naive to think any legislative body would vote to eliminate software patents. Reform requires realistic goals and sensible proposals. If we want to be ignored as the left-wing fringe, then we can keep on advocating an end to software patents. But if we want to be taken seriously, we should propose and lobby hard for reasonable changes to patent laws.


Biography: After dropping out of college at the age of 17, four years pounding nails in the hot sun and teaching sailing to Silicon Valley executives convinced me college wasn't so bad. I'm a graduate of UC Davis (BSEE/CS, 1978), and Stanford (MS Computer Science, 1985). My professional career has been devoted to scientific software. I am currently self employed, consulting on cheminformatics and molecular-modeling software, and I have partnered with a colleague in the UK to work on chemical-registration systems that store detailed information about the millions of chemicals that a pharmaceutical company must track. I live near San Diego, California with my wife and teenage children, and enjoy music, juggling and bicycling. My wife and I also are semi-professional screenwriters.

This article is released into the public domain by the author.


  


Patents - An Alternative View | 483 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
This is a bridge...
Authored by: Anonymous on Monday, October 11 2004 @ 11:15 AM EDT
...Trolls hide under here.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 11:15 AM EDT
Seems like common sense to me.

[ Reply to This | # ]

I agree
Authored by: Anonymous on Monday, October 11 2004 @ 11:16 AM EDT
Probably because there are some mild similarities between my career and yours.

Though the last time *I* argued we need to be reasonable to get results, I was
told I was a troll (& worse).

I hope you fare better, and posters will be constructive...

[ Reply to This | # ]

Patents - An Alternative View
Authored by: MplsBrian on Monday, October 11 2004 @ 11:20 AM EDT
Ok, Europe. Take this and run with it. If a reasonable patent process is
implemented in the EU, maybe the US will wake up & address the issues with
the current laws.

[ Reply to This | # ]

OT and links
Authored by: overshoot on Monday, October 11 2004 @ 11:21 AM EDT
You all know how to make them clickable.

[ Reply to This | # ]

One funamental problem
Authored by: Anonymous on Monday, October 11 2004 @ 11:25 AM EDT

There is a fundamental problem: Software Patents are patents on Mathematics and CANNOT be limited.

There just isn't enough mathematics around for patents.

See Link

Rob

[ Reply to This | # ]

Nice Idea but Impractical
Authored by: Anonymous on Monday, October 11 2004 @ 11:30 AM EDT
1. Require publication and public review of all software patent applications
prior to issuance, regarding the key elements of a patent -- prior art,
innovation, "non-obvious" technology, and that it's an actual
invention.


If you publish before you are granted protection, you are opening the
door for someone to take it and use it without your permission. Since most
publications are international, there isn't much keeping someone in another
country from taking it. Also, WHO decides if the prior art raised is correct
(excepting the obvious)? The USPO, which is mostly clueless in software.

2. Change the law, so that individuals and small businesses can investigate and
rectify actual infringements with modest legal fees, and so that wealthy
corporations can't force a settlement simply because their victims can't afford
to litigate.


LOL, Tort Reform is what you mean. That's a real hot potato, as many in
Congress are lawyers. This is a good idea but it would be shot down quickly. In
places where Tort Reform has been passed (such as on malpractice claims) it
seems it is continually being challenged in court. Unless you can make this a
Federal requirement then the plantiff (if a big company) can just seek a state
where the laws favor their side.


3. Shift the burden of discovery of patent infringement to the patent holder. A
patent holder must actively monitor products and technology, or forfeit his/her
patent rights.

OK, WHO is going to bear this cost? Many companies with large patent
portfolios so this already. But how does Mr/Ms Progranmmer do this when they
don't have access to the Source Code of a product to see if their patent was
infringed. There could be millions of infringing products but you could never
identify them all.


4. Prohibit damages in arrears. If a patent holder discovers infringement,
royalties could only be collected once the infringer has been notified and given
reasonable opportunity to remove the infringing code, or enter into a royalty
agreement with the patent holder. The exception would be when it can be shown
that the infringer must have known or did know about the patent.

This one I can support. Only damages from the time the use was discovered and
the infringer notified.


5. Require that a patent holder use the technology or lose the patent. A patent
could not be simply held indefinitely. This would put an end to both
"submarine" patents, and to "patent holding companies", both
of which stifle innovation and impede commerce. It would also end the practice
of obtaining a patent to block technology -- patents could only be used to
develop and create products. Patents could not be used as a speculation
commodity, and innovators would be free of unknown and unknowable legal traps.


Disagree. This limits pure R&D and research at places like
Universities. A PhD at University X is not going to use his patent on a product,
nor is his University, they are going to sell the idea to a busines who then may
or may not use it. Raising barriers (fairly)to competition is an important part
of keeping a business going.


6. Shorten the life of a software patent compared to traditional patents, to
reflect the nature of the business itself. Seventeen years (now twenty) may have
been appropriate for the color TV tube, but it's an absurdly long time for a
software innovation. Some of these would be tricky, and surely require more
careful definitions. For example, what constitutes "use it or lose
it"? Guidelines would help, for example three years might be a "grace
period" where the presumption of a valid patent is with the patent holder,
but after three years with no product on the market, the burden of proof of
ongoing activity would shift to the patent holder.

This is the best idea of the bunch. Limiting the term allows recoup of
investment and some profit via protection. Making the patent "public"
because it was idle is a bad idea, it could be idle for many valid reasons, a)no
funds to develop it into a product b)no demand for the idea to be used c) the
idea is ahead of it's time. Also, again, who monitors this time period? YOu want
to put MORE work on an already overworked patent system.

By the way, I too am a Software Architect with about 22 yrs practice, and hold
an MBA from a top 20 school. There has to be a balance between making everything
available to everyone for nothing and allowing the business/individual some
profit for thier labors.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: muswell100 on Monday, October 11 2004 @ 11:35 AM EDT
I''m not so sure I'm convinced that this is the Answer. A minor improvement on a
faulty concept, certainly, but the concept itself remains faulty nonetheless.

If, say, I were to come up with an algorithm - entirely independently - to
collect data in a quadrupole mass spectrometer TEN to TWENTY times faster, I
would still run up against patent law since the whole 'idea' would be protected
under patent law, even if my algorithm proves to be an improvement over the
original. Copyright law protects the written composition making up the codebase
of whatever invention is involved without putting a premium on ideas themselves.
Patenting 'ideas' is patenting 'thought', which should be wholly unacceptable in
any society that values any form of freedom, intellectual or otherwise.

For my own part, I dearly hope that Europe gives software patents - however they
may be dressed up to look like - a very, very wide berth.

[ Reply to This | # ]

Well argued, but stil wrong IMHO
Authored by: Anonymous on Monday, October 11 2004 @ 11:38 AM EDT
I agree that the proposed changes would reduce the damage, if they were themselves practicable. In reality, many are not. Take, for instance, "Change the law, so that individuals and small businesses can investigate and rectify actual infringements with modest legal fees". How, pray, is this to be achieved? Legal aid for patent litigation?

The argument advanced as to why patent protection is needed is that after "years of development" anyone could instantly replicate the software's functionality as soon as it was made commercially available. I do not buy that. If paranoid, keep the source closed. If the process is so complex that it involves years or development, reverse engineering is not going to easily reveal the algorythm.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: RealProgrammer on Monday, October 11 2004 @ 11:40 AM EDT
While the ideas of public disclosure and active use are brilliant, I disagree with:
3. Shift the burden of discovery of patent infringement to the patent holder. A patent holder must actively monitor products and technology, or forfeit his/her patent rights.

A small company or individual inventor with one patent can follow the field, barely. If they have five or six patents, the universe of possible infringement gets pretty big.

---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

Patents - An Alternative View
Authored by: tknarr on Monday, October 11 2004 @ 11:43 AM EDT

Thought: two things would really help the system.

  1. Any program which the patent holder claims infringes and which was performing the allegedly-infringing operation in the same way prior to the patent being applied for automatically becomes valid prior art for patent purposes. No wiggle room, if the patent hold claims it infringes then it's presumed to do what his patent claims to cover (because if it didn't then he wouldn't have grounds to claim infringement).
  2. No selective enforcement. If a patent holder sues one entity for infringement and that entity can provide evidence that one or more other entities are infringing, then the patent holder must either take action against all of them or drop his claims against all of them.
The second one would prevent the current practice of a patent holder going after the small fry who can't afford to defend themselves first to establish precedent before moving on to the larger targets. Combined, the two would make it difficult or impossible to successfully grab something that was already being done (the XOR patent being a good example).

[ Reply to This | # ]

Provide code?
Authored by: Liquor A. on Monday, October 11 2004 @ 11:48 AM EDT
Maybe software patents should be forced to give example code?

One of the most annoying things (to me as a layman/programmer trying to read
them at least) about many software patents is that they patent something like 'A
method of fooing bar' and in the description of how they are implemented it just
says 'software that foo's bar' or gives 'foo bar' as an instruction, but does
NOT explain in sufficient detail how to perform a 'foo' operation, or esactly
what 'bar' actually consists of (or could be limited to).

It seems to me that most patents on physical implementations describe exactly
how to create the patented device. Software patents all seem to just describe
what it is supposed to do, and rarely (except when an algorithm is being
patented) provide any real description of how the function can actually be
implemented.

This is probably because either the algorithm is so simple that most programmers
could generate it without reference to the patent, or because the algorithm was
too complicated for those applying for the patent to actually implement. (I
suspect in some cases, both cases apply - this is not an XOR)

In my opinion, the patent submission should include some proof that the
applicant has actually implemented the 'invention'.

Now if sample code were to be given, the patent could be limited to the
functions performed by that code - regardless of the attempts in patent
submission to cover the sun, moon and stars in the claims.

But then again, IANAL etc.

---
Liquor A.

[ Reply to This | # ]

unconvincing arguments
Authored by: Anonymous on Monday, October 11 2004 @ 11:50 AM EDT
This article of Craig A. James brings up lots of ideas how the patent system can
(and should) be improved. However I have some objections about the remaining
arguments.

"I myself received a software patent for an invention that required months
of research and years of development. Once the product was on the market, anyone
could have copied it."

No, definitely wrong! Not anyone. The copyright still prohibits the simple copy
of such code. Every single incarnation of a similar algorithm would have to
prove that it was not copied from the original source in any way. As far as I
understand it, it is only possible to come up with a similar idea if it was
totally written anew.

Moreover if the idea and code is not published, how would anybody else know how
this code works? If neither is published, everybody else would have to do the
same effort to come to a similar result. So the patent brings simply -- nothing.
On the contrary: getting a patent requires publishing the idea, so exactly by
publishing it via the patent, the risk of copying was increased!

Or was it work on an Open Source project, where publication could not be
avoided?

"Zantac would not have been developed without patent protection."

How would you know? There is no world without patent laws, so why do you think
the world wouldn't develop required and needed stuff if there were no patents?
Why do you think necessary inventions that cost lots of money are only possible
with patents? This is simply an assumption that is neither true nor false. It
has no basis at all. We simply can't tell what would be. I can also say the
world would have developed ten times as many and better drugs if there were no
patents. This is as true or false as your argument.

"A software invention doesn't require the same massive investment as a
drug, but it's not free, either. A true innovation, one that's worth patenting,
should come from hard work, insight and genius."

If I'm a mathematician then I may also require hard work to do some proof. The
result is probably also useful to mankind and provides innovation and genius.
But should we allow mathematics to be patentable? I think no. So what is the
difference to software?

Many people write books. And I'm talking about fiction as well as scientific
books. They invest lots of time and maybe money to investigate their stories.
Should we make books and stories patentable? No!!!

Virtual, immaterial, abstract things like thoughts, language, mathematics,
algorithms, etc. should never be patentable!

Everything that can easily be mapped to a number by a strict mathematical
process should not be patentable. And software can be mapped to numbers, for
example by concatenating the 2-digit hex or 3-digit decimal ASCII values of the
characters that the software source code consists of. If we do this mapping, we
get a simple number that *is* teh software. And now the world allows (US) or
tries to allow (Europe) patenting numbers!!!

This is insane!

"And the inventor should be able to reap the benefits of his or her
invention, by receiving some period of exclusive use."

Every author of a book, every musician, every actor in a movie is able to reap
benefits of his or her "work", even if it is not called an invention,
even if it is not covered by a patent but "only" by copyright. So why
do you think a patent is the only valid way of protecting the benefits?

Sorry, these arguments can not convince me at all.

Hagge

[ Reply to This | # ]

Bleeding Ulcers
Authored by: Anonymous on Monday, October 11 2004 @ 11:55 AM EDT
"Before its invention, stomach-removal surgery was the most common surgery
in the United States, because bleeding ulcers were often uncurable and
fatal."

Although it was later revealed that most ulcerations were caused by Helicobacter
Pylori, which is cleared by a 2 week course of antibiotics. Very bad example,
as zantac was overprescribed as a panacea, and doesn't actually treat bleeding
ulcers, but it's actually a H2 histamine.

You may have noticed the sharp falloff in advertising for such things. BTW, it
was 'endoscopy' that really turned things around...

Helicobacter -> http://www.gicare.com/pated/ecdgs30.htm
Bleeding Ulcer treatments ->
http://www.umm.edu/patiented/articles/how_bleeding_ulcers_treated_000019_10.htm

Drac

[ Reply to This | # ]

Anachronistic or not...
Authored by: Groklaw Lurker on Monday, October 11 2004 @ 12:02 PM EDT
Well, I may be an anachronism (or a purist), but I continue to believe that
software patents are just a bad idea. Software is a written work, just like a
book or magazine article and should always be copyrighted, not patented.
Software is a written creative expression, which is exactly what Earnest
Hemingway, J.R.R. Tolkein and Robert A. Heinlein produced. Should their works
have been patented? Of course not, they ejoyed copyright protection and justly
so, not patent protection.

If Tolkein had patented the fantasy genre, we would be without many great and
fascinating works of fantasy today. The world is vastly richer for these other
fantasy contributions to society just as it is for the contributions made by the
computer programming community, both proprietary and Open Source. Forbidding
other, independent working programmers from solving a software problem due to
possible patent infringement is simply wrong and will retard or even bring to a
halt the great advances being made in computer software today.


---
(GL) Groklaw Lurker
$ echo "Darl" | sed "s/arl/ick/"

[ Reply to This | # ]

Wrong answer - didn't do homework
Authored by: Anonymous on Monday, October 11 2004 @ 12:07 PM EDT
We have open patent applications now. We've had that since March 2001. Search and read them here.

[ Reply to This | # ]

A very wrong view
Authored by: dyfet on Monday, October 11 2004 @ 12:13 PM EDT
Software patents are not just flawed but fundimentally incorrect for they wish to take a boundless and abstract concept, which any given software represents and communicates, and treat it as it it were a physical object that could be bound and partitioned or otherwise personally and exclusivily owned. Ideas simply cannot be owned as property, for to do so would be as inhumane and disgusting as physical slavery. To own ideas is to claim the right to tell people what they are permitted to think and do with what they know. Forget the notion of fixing patents, for the idea is fundimentally monsterous, and humanity would be far better served without software, business method, or other forms of inhumane exclusive rights on what others may think. Software, in particular, is already subject to copyright protection, in many cases trade secret law, and even common contract law even though the latter should constitute misuse of copyright. Software patenting is not just morally and socially wrong and an offense against basic human rights and dignity, it is also completely unnessisary.

On the question of patent reform, outside of the scope of software, business methods, etc, many of the ideas here have practical merit to patenting in general. However, what we need in software is not software patent reform, but rather software patent repeal.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: eamacnaghten on Monday, October 11 2004 @ 12:24 PM EDT
I am a software developer, and I do not agree with all the views expressed in the article, here is, what I hope to be, my contribution to the debate. I suggest...
  1. Patents were invented to encourage people to inovate, and to publish their inovations so they could be replicated elsewhere. If the patent claim does not give clear instructions on how to replicate the invention then it should be denied. For software patents it is reasonable to assume the requester should include source code of an implementation of the invention. These should take care of the broard conceptual patents that have no technical merit.
  2. Every time a case is bought about for patent infringement the patent itself should be examined regarding it's validity automatically. This should be done at an early stage of the procedings.
  3. Formats and protocols should not be patentable. These are simple implementations, they are not inventions.
  4. Patents exist so that the populus can benefit from the inovations of inventors. If a patent is found to be (used for) holding back technological advancements and deployments then the patent should be voidable.
  5. If there is financial insentives for the Patent Office to grant patents quickly then these should be removed. It should be just as beneficial to the Patent Office to not grant a patent than it is to grant one.

Web Sig: Eddy Currents

[ Reply to This | # ]

A few more suggestions...
Authored by: Anonymous on Monday, October 11 2004 @ 12:25 PM EDT
Apologies if someone else has already stated these:

* Strictly enforce prohibitions against "black box" patents. A
working implementation or simulation must be shown; covering all elements of the
patent. Patents should only be granted for HOW, and not WHAT.

* Likewise, reject "application patents" (i.e. "use of existing
technology X to solve problem Y" when that particular application has
previously not existed) as insufficiently novel. Simple aggregation of things
should never be the basis for a patent.

* Modify the law such that "the best defense is ignorance" no longer
applies. Right now, the best advice for someone who is curious if his/her
software is infringing is "don't ask, and don't try to find out",
because if you do--then you may be on the hook for willful infringement. This
aspect of the law actually encourages people to act in bad faith.



[ Reply to This | # ]

I still prefer the Canadian Solution
Authored by: kawabago on Monday, October 11 2004 @ 12:29 PM EDT
We grant patents on software if it is part of a new machine and the patent only
protects that software on that machine. If you want to do something else with
it, the patent doesn't stand in your way. I think that is one of the best
solutions but it doesn't allow for the couple of years the doctor worked on his
project. On the other hand it would take considerable time for someone to
reverse engineer the product so he would still have a period of exclusivity in
which to establish his product as the market leader. So I think pure software
patents are still not necessary.

---
Just Believe.

[ Reply to This | # ]

Have to respectfully disagree
Authored by: Anonymous on Monday, October 11 2004 @ 12:29 PM EDT
Craig - that's a nice, reasoned article, but I feel it still doesn't address the
fundamental problem I see with patents, per se, which is this: they prevent a
second inventor from using their own idea, simply because someone else had the
idea first.

For example:

Person A invents something, and patents it.
Person B also *independantly* invents the same (or very similar, thus
infringeing) thing.

Both A and B have invested huge amounts of work and money in their inventions,
but only A can benefit. How can this be right?

I understand that patents were intended to prevent the *theft* of ideas but what
they actually do, in my view is to introduce an "I was here first"
veto, and even if they aren't *abused* they *still* restict innovation - person
B will probably have "run out of steam" by the time they find out that
their life's work has already been patented by someone else; they may not have
the time or money to continue on to further innovations, and their spirit will
be so battered that they may no longer have the inclination to try. Without
this barrier, they may have built upon their ideas to come up with far more
useful ways of using them, and have later produced even greater and more
beneficial inventions than person A.

Who is to say that A is the better inventor? We may never know how good B is
because they may just give up! What a loss to humanity.

Why should someone have the right to stop a real innovator from using their
ideas? What makes that *right*?

When we look at software, here we have probably the most concentrated substrate
for this kind of situation to arise; with a finite number of ways of achieving
results, different programmers are practically *bound* to independantly come up
with similar solutions to similar problems, simply by the very nature of the
problem domain within which they work. It's just *too* *easy* to
"invent" an algorithm that someone else has already patented.

I can understand an inventor's desire to profit from all their hard work - this
is only natural, but why should they stop someone else (who has worked equally
hard) from benefitting from their idea, just because it's similar? They put no
effort into the second person's invention - and the person B may have arrived at
the invention through an entirely different route than person A - it's just that
the eventual methods are "the same".

If person B had actually spied on person A during their development of the
invention, that would of course be a different matter. That may be hard to
prove, but it *is* essentially wrong.

In fact, the very XOR Cursor patent you cite - which I *did* know about, kind of
underlines the point; how can the Patent Office know for sure that no-one else
has already invented, or is currently working on something that will result in
the same "invention"? How can they know how "obvious" it is
- particularly if the effectively jsut rubber-stamp most software patents
anyway, because they're over-loaded?

At the time that the first patent laws for inventions were introduced, the ideas
behind them were probably ground-breaking and even contraversial; I'm sure there
was much debate and protest. In the world of the time, the idea that was
settled on was probably the best they could come up with.

I think the goal-posts have moved a bit now; the question is, how could we do a
better job, given that we now know the weaknesses of the incumbent system? How
would a system that allowed genuine inventors to benefit from their ideas
regardless of whether or not someone else had independantly already invented
something similar, but prevented simple rip-offs being made work?

I think that's the crux - how do we stop rip offs? Anybody ever heard of
copyright? ;-)

respectfully,
-cybervegan

[ Reply to This | # ]

Patents - An Alternative View
Authored by: minkwe on Monday, October 11 2004 @ 12:33 PM EDT
Just because you thought about it first does not mean that anyone else that
independently thinks about it should pay you. You just can't say it is
impossible for somebody else to independently come up with the idea. Nor can you
say with a straight face that anyone that does, should not be allowed to benefit
from it.

Any patent system that does not address this issue is still doomed for abuse.
His proposal does not address this issue.

Secondly, the idea that the patent holder should bear the cost of discovery
during patent litigation will still favor a big company that infringes a small
company's patent.

To me:
1. If you really want to benefit from your invention and prevent others from
benefitting to the same degree, keep it as a trade secret closed source.

2. If you really want your invention to spark innovation and benefit the
society, release it as public domain knowledge.


---
"Corporate views on IP law might be described as similar to a 2-year-old's
concept of who gets to play with all the toys regardless of who brought them" --
PJ

[ Reply to This | # ]

Patents - An Alternative View
Authored by: blacklight on Monday, October 11 2004 @ 12:36 PM EDT
Craig A. James has utterly failed to convince me that opposing sofftware patents
is a bad idea: issues should be evaluated on their merits and their merits
alone, not on what the forces of the status quo will or will not go for. The
only arguments that Craig A. James makes that have any traction with me are
those he makes in justifying why some inventions must be patented, again because
he is arguing on the merits of the issue. To an extent I understand the
rationale behind some of Craig's points in favo of patents, but that
understanding in no way detracts from my hard core opposition to software
patents.

[ Reply to This | # ]

Publication already Occurs
Authored by: Anonymous on Monday, October 11 2004 @ 12:44 PM EDT
Publication of patents ALREADY occurs before they are issued.

See the USPTO and click on "Published applications"

or go to

http://www.uspto.gov/patft/index.html

the right side is for issued patents. The left is for publications. THEY AREN'T
issued yet, and you are free to file objections.

The rest of the world has been doing the publication thing for awhile.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: AllParadox on Monday, October 11 2004 @ 12:53 PM EDT
Observations added below:


... [P]atents could encourage innovation, which is the fundamental purpose of
patent law.
{Our current USPTO patent system discourages software
innovation. Software innovation happens in spite of
the system, not because of it.}


The problem with current patent laws are many, but to list a few:

* Patents are granted frivolously.
{Unfortunately, this is true of the great majority of
software patents today.}


* Litigation is heavily weighted in favor of large corporations; in fact,
individuals and small companies simply can't litigate.
{Litigation will always be expensive, and rightly so;
custom piece-work by well-paid experts (attorneys)
cannot be inexpensive. The current system, however,
is punitively ineffective.}


* It is almost impossible for an innovator to know if there is a patent
already covering his/her innovation.
{There are a number of causes: the sheer number of
frivolous patents, software and non-software, and
the inherent difficulty of describing, indexing,
and organizing such inherently creative work.}


* Patents can be used to block use of an innovation rather than encourage
its use.
{That's the idea: allow innovator-investors to profit
by blocking the use. I prefer not to second guess
the stupid business decisions of innovators.}


* Holders of "submarine" patents can deliberately lurk,
predator-like, waiting for honest, unsuspecting innovators to invest huge
amounts of time in already-patented technology. Straightforward and fair changes
to patent law would completely change the landscape of patent litigation and
innovation.
{I do not see intentionally "lurking" submarine
patent holders as a big problem. The problem, as I
see it, is that the USPTO is currently overwhelmed
with current filings, due in part to wholesale
granting of meritless patents. The unfortunate
result is that meritorious patents are often delayed
ten or fifteen years.}


Suggestions

1. Require publication and public review of all software patent applications
prior to issuance, regarding the key elements of a patent -- prior art,
innovation, "non-obvious" technology, and that it's an actual
invention.
{I could not agree more. Software patents are so new
that our current patent and legal system simply
cannot keep up with the challenges of the new
concepts. Public review would go a long way toward
exposing the real current problems with the system.}


2. Change the law, so that individuals and small businesses can investigate and
rectify actual infringements with modest legal fees, and so that wealthy
corporations can't force a settlement simply because their victims can't afford
to litigate.
{Sounds fantastic to me. How, exactly, do you suggest
we do this?}


3. Shift the burden of discovery of patent infringement to the patent holder. A
patent holder must actively monitor products and technology, or forfeit his/her
patent rights.
{It might be better to add some caveats here. An
infringer that actively hides his infringement would
not get the benefit of his duplicity. An innocent
infringer, who shows good faith effort not to violate
a patent, and who publicly exposes his work and makes
it available for infringement evaluation, would get
the exemptions.}


4. Prohibit damages in arrears. If a patent holder discovers infringement,
royalties could only be collected once the infringer has been notified and given
reasonable opportunity to remove the infringing code, or enter into a royalty
agreement with the patent holder. The exception would be when it can be shown
that the infringer must have known or did know about the patent.
{See response to 3.}


5. Require that a patent holder use the technology or lose the patent. A patent
could not be simply held indefinitely. This would put an end to both
"submarine" patents, and to "patent holding companies", both
of which stifle innovation and impede commerce. It would also end the practice
of obtaining a patent to block technology -- patents could only be used to
develop and create products. Patents could not be used as a speculation
commodity, and innovators would be free of unknown and unknowable legal traps.
{I question the effect on submarine patents and
patent holding companies. Still, "use it or lose
it" has a seductive appeal. Because of the
complexity of some chemical patents, in particular,
nobody has any real idea of what is patented.}


6. Shorten the life of a software patent compared to traditional patents, to
reflect the nature of the business itself. Seventeen years (now twenty) may have
been appropriate for the color TV tube, but it's an absurdly long time for a
software innovation. Some of these would be tricky, and surely require more
careful definitions. For example, what constitutes "use it or lose
it"? Guidelines would help, for example three years might be a "grace
period" where the presumption of a valid patent is with the patent holder,
but after three years with no product on the market, the burden of proof of
ongoing activity would shift to the patent holder.
{And: software products sold with the patent lose
their copyright protections on the date the patent
expires.}


{7. Patent examiners handle patent applications, and
communications about the applications with two very
distinct rules.
A. All communications are strictly confidential.
B. All cases are handled on a first-in, first-out
basis (The next thing in the queue gets handled,
period. Mail comes in and is added to the end
of the queue, strictly on the basis of arrival.)

New rule: Applications for software patents may be
made public, at the applicants specific, written,
irreversible, request. When that happens, the entire
file and proceedings become public, just like any
regular courthouse file.
Publicly open application files get priority
over sealed application files.}

Patents have historically served an important need. Huge investments in research
are often required, whether in semiconductors (the transistor), electronics (the
color-TV tube) the drug industry, and many, many other industries.
{At the same time, judges often have no concept of
how the inventive process works. Often, literally,
they have the cartoon image of the inventor and
the thought balloon over his head with a light
bulb in it, recalling Thomas Edison. They are
wholly unaware of the thousands of versions or the
tens of thousands of experiments required to make
it a useful commodity.
This is not to disparage Federal judges. Their
world just does not include people that work in the
creative laboratories, developing these things.}




---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Naive
Authored by: Anonymous on Monday, October 11 2004 @ 12:57 PM EDT
What incentive is there for the entities that currently have the power that the
current patent system provides to give that power away? And why wouldn't those
same entities use their wealth to fight this kind of reform tooth and nail?

Only if faced with total abolishment of the current system would the ideas
expressed in this article be considered as a compromise solution and every point
would be argued individually - possibly resulting in a patchwork of reform that
would be little better than what exists today.

Still, the only reasonable starting point for reform has to be abolishment.
That is the only way to get compromise solutions on the table.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: ujay on Monday, October 11 2004 @ 12:58 PM EDT
Patents protect inventors of physical articles from unscrupulous individuals or
companies duplicating and selling the invention. They do not prohibit someone
from creating a product that does the same thing, but uses a different design.
It is the prohibition on duplication that fosters innovation, as the competing
products have to be different.

With software patents, the redesign does not matter, as any impementation of the
basic principle is disallowed. This takes away the incentive to redesign or
enhance an existing product and create active competition.

This is where the patenting of software fails the constitutionality test, by
actively discouraging innovation and enhancement of any patented software
process.

Retain copyright protection for software, yes, but that protection needs to be
limited to a reasonable amount of time in the software life cycle, probably no
more than 3 years. Remove software from patent protection entirely.


---
Windows - How do you want to be exploited today.

[ Reply to This | # ]

Patents - A Constructive View
Authored by: rsteinmetz70112 on Monday, October 11 2004 @ 01:09 PM EDT
I think these are constructive suggestions. I would suggest they don't go far
enough.

What is needed is some method of raising the bar for granting of a software
patent and some menthod of weeding out the bad ones without full scale
litigation.

Perhaps some sort of pre-trial hearing on validating a patent, prior to an
infringment trial. Possibly a special administrative review prior to filing any
suit.

I don't know, just thinking out loud.

I think there is concensus that the system is broken, therefore some
modifications may be possible to tighten up the issuance of patents. That is a
first step in the US< geting software patents cmpletely denied is probably
out of the question in the US for some time.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Faulty premises
Authored by: PolR on Monday, October 11 2004 @ 01:25 PM EDT
This whole aarticle is based on false premises.

- It is not true that software patents are needed for innovation. Most software
in history was developped without patent protection. Bringing examples from
other industry is off-topic. We talk about software here.

- It is not true that not having software patent is irralistic. Software patents
are not a fatality. They have been put in place by people and people can undo
them if they want to. The question of why there should be software patents in
the first place is in dispute and must be debated. It can't be pushed under the
rug.

- The debate is not a matter a finding a middle ground between reasonable people
having diverging views. Software patents are being pushed by vested interest for
the purpose of putting a lock on the market. The vested interest are not looking
for a reasonable proposition. They are looking for world domination. These
vested interest actively try to game the system to lock competition away.
Resonable sounding positions will be used and perverted to further that goal.

[ Reply to This | # ]

I disagree
Authored by: Anonymous on Monday, October 11 2004 @ 01:27 PM EDT
Software should be patentable, but the same rules should apply to software
patents as to any other patent. The three common criteria for a patentable idea
are as follows:
- The idea must be new (as oposed to 'previously known to man')
- It must be implementable ('Be capable of industrial application')
- Must involve a inventative step (i.e. do something differently than previous
solutions)

For example, apply these criteria to the Microsoft VFAT patents:
VFAT specifies how to associate long file names to an existing file (i.e. longer
than the original 8.3 notation). This is not done by REPLACING the 8.3 notation,
but instead associates a longer file name to an existing FAT entry.
The long file name is a type of metadata, which is associated with a file in a
filesystem.

+ The first person who invented a file system could have been granted a patent,
since it met all the three common criteria.
+ The first person who came up with the idea of adding metadata to a file in a
filesystem should have been able to patent that idea.
+ Microsoft failed to meet the common criteria, since both filesystems and
metadata where previously in existence. The fact that they associated a specific
type of metadata (the long file name) to the existing file does NOT meet the
common criteria, since the idea of associating metadata is not new, the way of
adding this metadata is not new or inventative and the metadata that they
associated is not new (text as metadata is not an invention).

And this is where the whole reasoning goes wrong in the current debate: Software
patents are absolutely OK as long as they are issued based on the same set of
rules as other patents. Unfortunatelly there are very few new inventions in the
area of software, and therefore very few patents should be granted. It should be
the burden of the applicant to prove the common criteria, not the other way
around.

[ Reply to This | # ]

Craig James is a troll
Authored by: Anonymous on Monday, October 11 2004 @ 01:28 PM EDT

Just because he too invented the XOR cursor doesn't make him an authority.

Unfortunately, PJ got sucked into his kingdom under the bridge.

Look how productive this troll has been.

[ Reply to This | # ]

Could we abolish software patents on constitutional grounds...?
Authored by: Groklaw Lurker on Monday, October 11 2004 @ 01:30 PM EDT
From the United States Constitution, Section 8, Clause 8:

"To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries;"

The problem with software patents is that they do not 'promote the Progress of
Science and useful Arts' but rather, stifle innovation, hinder progress and are
unjustly biased towards the wealthy over the destitute.

To wit, I submit that software patents are in fact, unconstitutional. They do
not pass the constitutional test and thus should be ruled invalid, all of them.

---
(GL) Groklaw Lurker
$ echo "Darl" | sed "s/arl/ick/"

[ Reply to This | # ]

Patents - An Alternative view
Authored by: Anonymous on Monday, October 11 2004 @ 01:34 PM EDT
"The patent is for an algorithm to collect data in a quadrupole mass
spectrometer two to ten times faster than was previously known, without
modifying the hardware. (That's 'quadrupole', not 'quadruple'.) Since mass
spectrometers start at about $50,000 for the 'cheapies' and go way up from
there, scientists value the speed and sensitivity of the instruments highly.
This algorithm gave them huge improvements in both with no increase in
cost."

1/ Did the patent use the existing software of the quadrupole mass spectrometer,
or did it replace it.
2/ Did it use the existing interface to the spectrometer sensors.

If the answer to either of these questions is yes then it would seem that the
patent is actually only an improvement to an existing scheme, and perhaps should
not have been granted. Malipulating data by software should not, in my opinion
be patentable because as others here have pointed out there are only a finite
number of ways it can be done.

Also, did the patent involve using information provided by the spectrometer
manufacturer? How did they feel about the situation?

Having obtained a patent what incentive is there for the 'inventor' to further
improve his software product? He already has the scientific community over a
barrel?

IMHO this case proves that software patents are a bad thing.

[ Reply to This | # ]

Need to justify first, then improve
Authored by: sphealey on Monday, October 11 2004 @ 01:34 PM EDT
> But to throw the proverbial baby out with the bathwater
> is to ignore the critical role patents have played in some
> of the greatest inventions in history.

The world of computer software got along just fine without patents until 1995.
Plenty of innovation too, including that pesky "Internet" thingy.
Prior to explaining how to fix softare patents, I think it would be best to
start with explaining exactly why we need them now as opposed to, say, 1970,
when much seminal software work was being done?

sPh

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 01:38 PM EDT
3. Shift the burden of discovery of patent infringement to the patent holder. A patent holder must actively monitor products and technology, or forfeit his/her patent rights.

OK, WHO is going to bear this cost? Many companies with large patent portfolios so this already. But how does Mr/Ms Progranmmer do this when they don't have access to the Source Code of a product to see if their patent was infringed. There could be millions of infringing products but you could never identify them all.

If there are millions of infringing products then your application was obviously trivial and thus not patentable. If you accept that patents should not be overbroad and trivial, then monitoring the market for competing products with similar technology should not be much of a problem. As a sensible patent holder you will do that anyway, even under the current legislation.

TToni

[ Reply to This | # ]

Dilema et al...
Authored by: tizan on Monday, October 11 2004 @ 02:06 PM EDT

I think we all agree the rip off's have to stop but there are
a few points made in this article which touch some points we (at least I ) have
not a straight answer for

1) Software is so near to math and algorithm are just that...
and why do we need to patent it ....then do we patent Math proofs etc...
too....where do we stop or what is patentable?

2) I agree that people (companies) that put money into research need to gain
from their research but on the other hand do we charge $1500 to Africans (who
have life savings of $10) with AIDS because of that or tell them to die
otherwise. How do we deal with life and death and money making or investment
recovery ?


As a human (intelligent) society how do we make the
balance...money...incentive...v/s not closing opportunity...life etc.


---
tizan: What's the point of knowledge if you don't pass it on. Its like storing
all your data on a 1-bit write only memory !

[ Reply to This | # ]

Item 7
Authored by: Anonymous on Monday, October 11 2004 @ 02:06 PM EDT

Without commenting on 1-6, I am dismayed at the omission of anything like item 7 below:

7. Specifically prohibit any claim that broadly pertains to communications protocols, interface protocols, storage organization, application program execution interfaces, or other communications, interfacing, or storage matters.

The right of people to use machines to communicate, run application programs, and store and retrieve their data should transcend IP law entirely.

Wally Bass

[ Reply to This | # ]

Patents - An Alternative View
Authored by: fred fleenblat on Monday, October 11 2004 @ 02:11 PM EDT
A software invention doesn't require the same massive investment as a drug, but it's not free, either. A true innovation, one that's worth patenting, should come from hard work, insight and genius. And the inventor should be able to reap the benefits of his or her invention, by receiving some period of exclusive use.

This is the heart of the matter, but where the argument turns is that software patents are accepted with very broad wording so as to cover every possible implementation of a good idea, not just the particular implementation that occurred to the inventor.

For something like a medical patent, it's certainly not possible to invent something like "cure for cancer", patent it and cover all future cures for cancer just because you've found one way to treat it. There is much work and value in finding other cures for cancer.

Software patents on other hand are often on the idea itself not the implementation. The work in implementing even a fairly good software idea is often not that much. Once a competent programmer is made aware of the idea of doing foo, they can whip out some sample code for it in a matter of a couple hours. They might choose to implement Amazon's infamous one-click patent in a completely novel and unique manner, but the software patent covers all cures, not just the one Amazon came up with.

[ Reply to This | # ]

A good start, but incomplete
Authored by: billmason on Monday, October 11 2004 @ 02:13 PM EDT
Sure, the bath water is scolding hot, but the baby has a machine gun and is
starting to fire. The baby has to go.

One thing in particular jumped off the screen and begged to be noticed:
"The exception would be when it can be shown that the infringer must have
known or did know about the patent."

This is a bad idea. It's well-intentioned, since it theoretically keeps people
from gaming the system, but all it would really amount to is a problem we have
already: a huge incentive for everyone, no matter what their intentions, to do
no patent searches.

I suppose if the burden of this was placed on the patent holders, this isn't as
much of an issue, but I still think it's a bad idea to force inventors into a
state where they just cross their fingers and hope that all their hard work
isn't already covered by another patent, and wait with baited breath for a
litigant to come knocking on their door. That's not a conducive environment for
invention.

As for being ignored as a "left-wing fringe," I don't know if anyone
was around less than a decade ago when all of open source was ignored as a
left-wing fringe. Now the likes of IBM and Novell are basing their entire
business models on it. There's something to be said for extremism. It's
better to ask for what you really want, the end of software patents, and have to
fight harder for it, than to ask for less than what you really want, reform, and
get it.

[ Reply to This | # ]

Funny you should mention it -
Authored by: J.F. on Monday, October 11 2004 @ 02:22 PM EDT

Ironically, I am also the victim of one of the most notorius software patents: The infamous "XOR Cursor" patent, #4,197,590, filed in 1978 and granted in 1980. Way back in 1976, while a student at UC Davis, I built a computer terminal for NASA that used an XOR to move the cursor around the screen. The work was published in an obscure NASA journal. Only recently did I learn that Cadtrak has collected large sums of money and successfully defended patent #4,197,590 against a number of claims, on something I invented as a sophomore computer-engineering student. Talk about "obvious to anyone versed in the art." Had our work for NASA been more widely published, or if I'd worked in a job where I might have run into the Cadtrak controversy, Cadtrak would probably have lost the patent. Instead, I only found out about the XOR patent last year, after it had expired.

This is what killed the Commodore Amiga computer. In 1993, Commodore was up to its neck in debt after developing the next generation of computer hardware. They needed to sell a few hundred thousand units over the Christmas holiday to stay afloat. Unfortunately, they couldn't afford to pay Cadtrak their license fee on the XOR patent. Rather than let Commodore sell their computers so they could pay it, Cadtrak got an injunction preventing their sale. Commodore was forced to declare bankruptcy and the rest is history.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 02:26 PM EDT
As someone who has done a lot of prior art searching and has acted as an expert
in patent litigation,I would like to offer my 2 cents. One of the big problems
I see with patents (and this has been partially touched on above) is that the
claims are much broader than the specification. So for example it does not
invalidate a patent to have no concrete embodiment of the claims or to show that
the embodiment in the specification doesn't work. So in my view, there is no
sense in which software patents "teach" the "innovation"
protected by the claims. Secondly, the embodiment doesn't limit the claims
except when the claims are worded in a particular way (method claims). So the
inventor gets to exert a monopoly against anyone who implements something
covered by the language of the claims, even if the means of so doing is very
different. You might argue that this is balanced by the fact that prior art
also can be brought up that meets the broad language of the claims, not merely
the specific implementation, but in practice it is very hard to invalidate a
patent because there is a presumption of validity. And the invalidating art is
actually held to a very strict standard of comparison in practice.

[ Reply to This | # ]

Patents and Copyrights should be mutually exclusive...
Authored by: Groklaw Lurker on Monday, October 11 2004 @ 02:52 PM EDT
It should not be permissable for any work to enjoy both patent and copyright
protection simultaneously. Anything that enjoys copyright protection should not
be patentable.

Applying both patent protection and copyright protection to software renders it
the most protected and regulated work product ever created.

Software is copyrighted automatically the moment you write it, thus excluding it
from patent protection should be equally automatic.

Copyright is reserved for written works of creative expression. Software is a
written work of creative expression.

Patents apply to inventions. Software is not invented, it is written by
programmers in one or more specific programming languages and as such deserves
only copyright protection.

---
(GL) Groklaw Lurker
$ echo "Darl" | sed "s/arl/ick/"

[ Reply to This | # ]

CADTRAK
Authored by: blacklight on Monday, October 11 2004 @ 03:12 PM EDT
Let's be careful about whom we call trolls. I don't think Craig James is a troll
for the following reasons: (1) Craig James' credentials far exceed those of a
troll; (2) Craig James put his name on his opinion, and he is willing to take
the negative feedback for his opinion and have his opinion taken apart. So let's
take his opinion apart without taking him apart.

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Me? A troll?
Authored by: cjames on Monday, October 11 2004 @ 03:25 PM EDT
Sorry, I may be 6'5" tall, but I'm way too skinny to be a troll!
Craig A. James

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Problem with "use it or lose it"
Authored by: Anonymous on Monday, October 11 2004 @ 03:33 PM EDT
I understand and approve of the goal, but I'm not sure if that's the way to do
it. The problem is that, if I can tie the inventor up for (say) 3 years, I can
"steal" his patent.

Say I have a fundamental patent, and someone tries to get a patent on a
refinement or advance on it. He can't use it without my permission. Let me
see... licence it for the next 17 years, or stonewall for three (while I get my
version developed, debugged, and ready to flood the market with my entrenched
position)... decisions, decisions... Hey, Dogbert, what do you think I should
do?

Some of the other points are goals and aims, not concrete proposals for how to
achieve those goals. The current system is an attempt to "promote the
progess of science and useful arts"; the problem is achieving that goal,
not the desirability of it.

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Patents - An Alternative View
Authored by: eibhear on Monday, October 11 2004 @ 03:39 PM EDT
Hi,
2. Change the law, so that individuals and small businesses can investigate and rectify actual infringements with modest legal fees, and so that wealthy corporations can't force a settlement simply because their victims can't afford to litigate.

While I still mull over the whole proposal from the position of not liking software patents, I would propose that a better expression of this would replace "modest legal fees" with "modest administration fees". If, indeed, the patent system is reformed so that...

  1. It is easy to apply for a patent
  2. Patent applications and descriptions are required to be precise and clear (e.g. an XML document?)
  3. It is easy to search for a patent with confidence in the comprehensiveness of the result (i.e. not missing patents that cover the technology you're interested in)
  4. It is easy to defend against a bullying infringement claim....

Then removing all the laywers from the above would follow quite quickly. Instead of paying lawyers, you pay for the administration involved in investigation and rectification.

The more routine the job, the less the requirement for laywers and their fees.

Éibhear

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A few comments from the Author
Authored by: cjames on Monday, October 11 2004 @ 03:49 PM EDT
A couple more thoughts.

Many of you missed a key point: Even if you hate software patents, they aren't
going away. Let's be realistic, and propose reforms that will help. I'm not
going to argue about abolishing software patents, not because the issue isn't
important, but because it's a waste of time.

My software patent is unusual in that it controls an instrument. Even if HP had
guarded the source code perfectly, an engineer with an oscilloscope could have
hooked it to the mass spectrometer and seen the method in action. And there
would have been no doubt that it was unique and clever -- no mass spectrometer
had ever been run that way before.

And finally (even though it's a waste of time ;-)... Two innovators in the auto
industry each work hard for years, and through their hard work and expertise,
each invents a new methods of improving fuel economy. One, a mechanical
engineer, invents a better fuel-injection system. The other, a thermodynamics
expert, invents an algorithm that changes the way the fuel/air mixture is
controlled by the engine's computer.

Why should the mechanical engineer get a patent, but not the thermodynamics
expert?

Craig A. James

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No. Software patents must go.
Authored by: Anonymous on Monday, October 11 2004 @ 03:56 PM EDT
You over-praised these shallow suggestions.

2. Change the law, so that individuals and small businesses can investigate and rectify actual infringements with modest legal fees, and so that wealthy corporations can't force a settlement simply because their victims can't afford to litigate.

Change the law how? Legislate fixed, low fees for lawyers? I don't think so. If not that, then what?

3. Shift the burden of discovery of patent infringement to the patent holder. A patent holder must actively monitor products and technology, or forfeit his/her patent rights.

What? The burden is already with the patent holder. The patent holder has to bring a lawsuit and prove violation.

5. Require that a patent holder use the technology or lose the patent. A patent could not be simply held indefinitely. This would put an end to both "submarine" patents, and to "patent holding companies"

"Use" - meaning what exactly? Have a product offered for sale which uses the technology? That's not very difficult. This requirement is so weak as to be null. You can place an ad occasionally for $100.

... three years might be a "grace period" where the presumption of a valid patent is with the patent holder, but after three years with no product on the market, the burden of proof of ongoing activity would shift to the patent holder.

But as I already pointed out, getting "a product on the market" is so easy it's a non-requirement. You just put a tiny ad in a magazine. Your product is then "on the market". Now, getting your product sold in significant quantity is a completely different matter. But it has little to do with the originality of the idea behind the product, and more to do with (1) your company's relationship with a big distributor like Ingram Micro, (2) the quality of your marketing people, (3) your advertising budget (probably in that order).

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A few notes about suggestions
Authored by: Anonymous on Monday, October 11 2004 @ 04:26 PM EDT
Obviously lowering the cost of litigation is a great idea, but damned if I can
think of a way of doing it. And if it can be done, for heaven's sake lets do it
for all areas of law!

I'm sad that the author hasn't addressed the issue of patent thickets. I think
the patent thicket issue is the most problematic and pernicious of all the
problems in software patents. That said, I can't think of a way to fix it.

I know the following suggestion won't work, but someone please fix it up:
extend the notion of unclean hands so that a company is prohibited from suing
over patent violations if it has ever, at any time, been found of infringing on
a patent (even if they settle). Perhaps give some rights to the defendents to
audit plaintiff software during discovery. For small companies patents become
an offensive weapon and for big companies they are only defensive and rarely
anti-competitive. By the way, this change would also mean that people start
carefully reading patents again.

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Patents - An Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 04:38 PM EDT
Another thing we need is to perrmit independent invention.

Eg A and B both invent widget X; A is first to patent it. If B invents it
independently, then A should not be able to sue B. This has 2 cases:

1)B invents X before A patents it.
2)B invents X after A patents it (but without knowledge).

I think that B should be protected in both cases.

A should *only* be able to sue B if A can prove that B has reverse-engineered an
X made by A.

That said, I think we deperately need weaker "IP" protection in all
cases. I'd favour banning all patents with the possible exception of
pharmaceuticals.

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Patents - An Alternative View
Authored by: pawn on Monday, October 11 2004 @ 05:11 PM EDT
AFAIK, the reasoning behind patents is to promote disclosure of inventions. The
reason behind this would be to allow others to benefit from these inventions.

So unless the reasoning behind patent laws has changed (I guess it has in the
US), the only way that I could even consider software patentable would be if
it's source was made publicly available (a working model), that software using
the patent would contain the list of patents and pending patents (so that
someone interested in the invention could have a reasonable chance of finding
the patent in question) and that either (a) a patent license be available under
a reasonable flat fee to everyone or (b) the life of the patent be VERY reduced
- say 5-7 years.

Nevertheless, even if those rules were adopted, I'd still be skeptical. For
example, I haven't read the Kodak patents used against Sun but I find it ironic
that the people that are potentially responsible for popularizing the
"invention" (Sun) are the people that infringed on the patents whereas
the "inventors" did nothing to promote this "invention."

So far, I have heard a lot of people who are for patents claiming that they have
patented such a useful algorithm. I have yet to see ONE comment that details how
some programmer searched the patent office for ways to implement their software,
found a great "invention" and then decided to purchase a license from
the "inventor" to produce their own derived software.

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Sorry PJ, I have to *strongly* disagree
Authored by: Anonymous on Monday, October 11 2004 @ 05:16 PM EDT
I worked on similar measurement systems, and related devices such as gamma
spectrometers, pulse height analyzers, and specifically quadrupole and
conventional mass epectrometers, back in the 70's. The ideas espoused in his
patent are little more than a continuation of work that was done then, with some
new twists to be sure (but, having been out of that work for a few years, I'm
not convinced that his patent is truly unique).

Like so many other misguided patent winners, he apparently thinks that he's the
only guy who knows how to innovate. Or add "new" value. Or whatever.
He's flat out WRONG.

In other words, he's seeking special treatment for growing HIS ideas on the
IDEAS of others. That is NOT what patents are for (and with a couple pending
myself, I believe I'm qualified to say that). He's misleading you, at best.

The current software patent system is seriously broken and needs to be
abolished. Period. There can be no freedom to innovate, if people can try to
lock up ideas: theirs, or those that they derived directly from the work of
others.

This is about freedom, and freedom to innovate. His patent, and others like it,
are a thinly veiled attempt to shutdown the very base of ideas that they
themselves used to promote their own careers and patents. They should be
shunned like the plague that they are.

Just so you're clear: I *VERY* strongly disagree. Software patents are a BAD
idea, and no amount of fudging will make them better.

Period.

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Ahh - finally
Authored by: PJ on Monday, October 11 2004 @ 05:16 PM EDT
Sorry, Dr. Zee,

Apologizing for bad language doesn't save a comment.

: )

If you repost without the language, that would be great. Thanks.

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Patents and the Public Good
Authored by: rharvey46 on Monday, October 11 2004 @ 05:23 PM EDT
1) Patents have another benefit - to establish standards. Note that the Open
Source community frequently has the same exact goal. For this reason the patent
should not be able to be used against the open source community or people
implementing or using a patented standard.
2) A company may not use a patent against a standard - especially if the company
knowingly promoted the use of the patent to establish a standard.
3) A company or inidivudal that establishes a patent and/or standard can not use
the patent against companies, individuals or the public at large once the patent
and/or standard has been established across a large portion of the community.
This is especially true when a patent is based on prior art by the time that the
patent has been granted (not applied for).
4) If a standard or patent becomes widely spread, it can not be infringed upon
any longer - it now has become either a public patent or public domain
(whichever makes more sense). Unfortunately, it may be difficult to determine if
it is widely enough spread. The Kodak patents used against Sun had already been
widely spread.
5) If a company ignores prior art that is in the public domain, commonly used or
a standard, the patent should be made invalid.

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Ahh - finally
Authored by: Anonymous on Monday, October 11 2004 @ 05:24 PM EDT
Lets do this one by one.

The EU dont do SW patents. Canada only allows thm if they are part of a machine.
There is a lot of SW writtten in both places. These restriction or rather
freedoms on SW mean any one can go about thier lawful business of developing SW
without fear of being hit on the head by a blunt instrument (law suit).

China and India have shall we say a more flexible apporach to patents (and even
copyright). India has a lot of programmers. China is getting up to speed there.


Lets do numbers on this: EU ~450 million. Comparable to the US in wealth. (The
US is better off per head - note the comparable). India ~1 billion people. Maybe
200 million can afford a computor. China 1.2 billion. Bit tricky here because of
censorship on computors etc. Unlikely to be <100 million who can afford a
computor. We will ignore the Middle East and Africa even if they do have
countires with lost of SW eg Israel.

Lets next assume that code output is roughly proportional to the number of
programmes who in turn is a fraction of those who have a computor. This is a
very big assumption and almost certainly wrong in detail. But bear with me for a
minute.

We now have a pop total of circa 750 million (+ Canada with 25 million) with
access to computors. The US has maybe 250 million with access to computors.


Now the US patent office means every compuor shop big or small will have to
worry about being mugged by a patent. That is NOT good for productivity.

++++++++++++

People here worry about the small developer etc. Let the small developer patent
something and then sell it onto a company specilizing in patent law suits. Even
better the fund may pay for the patent in the first place. The fund cannot be
sued for patent violations - they dont have any assets other than the money and
the patents and dont develop anything so no possible patent violations.

Get a big enough portfolio in order and even IBM will pay out.

Anyone still think "stand alone" SW patents are a good idea?

--

MadScientist

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Lovely to see someone using a proper license
Authored by: Anonymous on Monday, October 11 2004 @ 05:33 PM EDT
Rather than the mealy mouthed by-nc that PJ insists on.

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Patents - A Hardline View
Authored by: Dormouse on Monday, October 11 2004 @ 06:10 PM EDT

The more I read about software patents and how they contrast with "real patents", the more I am convinced that the whole patent system needs scrapping. I am coming to the view that software patents are not an exception to be treated differently, but that it is just more obvious that the patent system is broken when one applies the concepts of patents to software.

Several people have cited the transistor as a good example of a "real patent". Do you still hold that view after reading this story? Not so much a protection for the inventors, more a battle between them. Also note that the transistor was developed incrementally, 1948 was when enough of the problem had been solved to demonstrate a working device. Two of Bell Labs patent applications were rejected on the basis of twenty year old prior art. The transistor continues to be developed to this day.

The CRT was developed over a period of 76 years before the first commercial TV tube appeared in 1931. The CRT has also continued to be developed in small steps to this day.

Notice how both of these examples represent incremental improvements of previous ideas?

---
use Disclaimer qw( :IANAL :IMHO :IIRC );

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Patents - An Alternative View
Authored by: marbux on Monday, October 11 2004 @ 06:17 PM EDT
Currently, there are three ways in the U.S.A. to protect software intellectual property: [i] patents; [ii] copyrights; and [iii] as trade secrets. I want to bounce a few thoughts for feedback.

For the broad stroke of a change, what if a software developer had to elect to use one of those methods for a given software product and couldn't use the others? In other words, if you get patent protection, you can't rely on copyright or trade secret protection, etc.

Under such a regime, only software relying on trade secrecy could remain closed source. And nothing would stop anyone from developing equivalent code so long as they don't steal the source. No changes required in trade secrecy law.

For software copyrights, require that copyright can only be claimed if the source code is published. No further changes needed for copyright law.

For software patents, require that source code be submitted with the patent application in as many programming languages as the developer is claiming patent protection. The same patent would not protect against coding in any other programming language, and source code submitted would only be protected to the same extent as under software copyright law, but for a shorter period. A publicly available database of source code submitted with patent applications would make it far simpler for developers to research potential infringements and to design software around relevant patents.

This may not be the right solution, but I think that any reform of software property rights must require disclosure of source code insofar as patents or copyright are allowed. Otherwise, patents and copyrights are grossly unfair to other developers.

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Patents - IP Monopoly
Authored by: Anonymous on Monday, October 11 2004 @ 06:26 PM EDT
Monopoly is bad, we all know, as it does stop innovation. But what can we do?

We need fair terms for patents.

- Nobody should be able to ask arbitrary high fees for a patent. At least no
more than 30 times more than the effort to investigate. The more you want for a
patent, more expensive the fees. So a man in his house can pay small fees, and
obtain some money, while microsoft, if they want really big bucks, they will
need to pay (and they should invest more time in this big patents)

- There must be a patent revision public organism. No more expensive lawers.

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How far can you see?
Authored by: Anonymous on Monday, October 11 2004 @ 07:11 PM EDT
I do not like the idea of Mathematics being patented
and that is what patenting an algorithm is.
Algorithms are mathematical formulas that are "DISCOVERED", they are
not "INVENTED", they were there all along, just waiting for someone to
find them.
Sir Isaac Newton
(remember him, he invented gravity...oh yeah and calculus too!)
is famous for saying:
"the reason we have seen so far, is that we have stood on the shoulders of
giants"

I wonder whose shoulders Mr. James stood on to see what he saw??

sspfunk

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  • Nitpick - Authored by: Anonymous on Tuesday, October 12 2004 @ 07:16 AM EDT
    • Nitpick - Authored by: Anonymous on Tuesday, October 12 2004 @ 01:36 PM EDT
      • Are you sure? - Authored by: Anonymous on Tuesday, October 12 2004 @ 05:15 PM EDT
        • Are you sure? - Authored by: Anonymous on Tuesday, October 12 2004 @ 06:38 PM EDT
Maybe
Authored by: dtfinch on Monday, October 11 2004 @ 07:25 PM EDT
It's not what I would have proposed, but it does alleviate my worst fears
hindering my innovation. I'd still like to see some protection for free
software, as you can't squeeze blood from turnips, but you can sure smash them
with a hammer, which does not serve innovation.

[ Reply to This | # ]

Patents & Copyright are NOT interchangeable
Authored by: Anonymous on Monday, October 11 2004 @ 07:26 PM EDT
I had read a lot here on the problem with regard to that software can be both patented and copyrighted, and that one solution people are suggesting would be to allow someone to choose either patents or copyright on a given software work. Unfortunately, that kind of solution would not be workable since patents and copyrights differ greatly in scope.

Consider a simple example; say I write a word processing program called "anonymousword". Yeah. Copyright protects fixed and specific expression. If it's copyrighted, I can certainly prevent others from making a very similar "anonymousword" if I choose. How similar another work may be before it is infringing is subject to changing interpretation of copyright law, but for example, Microsoft word would certainly not be infringing, nor would "johnword", or any other indipendently created word processor program.

Now lets say instead I take the idea expressed here of exchanging copyright for a patent. A software patent does not operate on the fixed expression of the specific code, but on the underlying ideas behind it. My patent would not be on "anonymousword" but on some conceptual aspect of it. Say the patent office is generous and accepts my claim of a patent on some aspect "word processing"! Consider, I can actually now prevent "johnword" from being written, even force it out of the market if it had been. Maybe I could even bite Microsoft for Microsoft word! What a nusiance I can be!

This difference in scope, particularly when implied to intangible ideas, is part of why the two are fundimentally not interchangable.

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Patents - other options that might fix the problem
Authored by: Anonymous on Monday, October 11 2004 @ 07:43 PM EDT
Here’s a suggestion for you all.
Premise 1: Patents and patent enforcement exist so that research and development
do not go unrewarded. If you couldn’t make a profit on R&D, you wouldn’t do
it.
Premise 2: It is the government’s job to enforce property rights, including
patents.
Premise 3: It is also the job of government to regulate, break up, or otherwise
restrict monopolies, so that a normal free market, with fair competition can be
maintained.
Premise 4: Software patents require relatively little in the way of capital
investment when compared to such things as nuclear reactors, or prescription
pharmaceuticals. Despite this low development cost, software technologies are
widely used, suggesting that an economy of scale can resolve our problems if
properly applied.
Conclusion: allow software patents, but put a cap of 10 times the development
cost on the patent. Once your company has made back 10 times the estimated
initial investment from licensing fees, the patent automatically goes to the
public domain. Additionally, you must accept money from someone if they wish to
contribute to a particular patents buy out. If you use your patent to try to
force competitors out of business, they can band together to buy out your
patent, even against your will. This proposal ensures that you can be fairly
compensated for your intellectual property, while still protecting those like
the open source community from predatory practices by monopoly powers. The
process of declaring a patent to be invalid due to prior art should also be
streamlined.
This proposal comes from the principles of economics. Monopolies have been shown
to be capable of amassing vast wealth, and patents currently have the ability of
creating monopolies, therefore everyone abuses the system to the fullest extent
possible. If we remove the ability to use patents to drive competitors out of
business and/or charge them arbitrarily high prices, we will remove the
incentive to file invalid patents by the thousands. We can then return to using
patents as just a protection of the innovator, and not a way to stifle
innovation.
Feel free to pass this proposal on to others, especially your senator, or
congressman. I certainly intend to.
Sincerely -Jason

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Software patents -- longish
Authored by: Anonymous on Monday, October 11 2004 @ 07:49 PM EDT
(somewhat wandering rant)

I am a practicing patent attorney. My initial degrees were in Computer Science. I spent about a decade and a half working in industry, developing software and hardware, before going to law school. I write and prosecute patent applications in a number of arts, including computer software, and computer-assisted systems.

About patent attorneys and patent agents -- to become a patent agent or attorney, you have to pass the USPTO's test. You do not have to be an attorney to take the test; if you pass, you become a patent agent, and can legally hang out your shingle and collect $$ from people for writing and prosecuting patent applications before the PTO.

What you do need to take the PTO's test is a PTO approved degree in science or engineering. When I took the PTO exam (in 1985), "computer science" wasn't considered science or engineering by the PTO! Luckily, I'd been a physics major most of my undergrad years, so I had enough real classes to satisfy them and take the test.

This shows the bias the PTO had and still has to a somewhat lesser degree against software and people with software skills -- for many years, they didn't accept people with computer science backgrounds as patent examiners, thus guaranteeing that when you filed a patent application involving software, it would be examined by someone with little or no knowledge of software and/or computer science.

The PTO also has very limited access to what people in the computer business or computer science would consider prior art. Communications of the ACM? Whazzat? Donald Knuth? Who he? They may be getting better, but for the most part, the examiners in the software arts don't know software, computer science, or the history of the business, other than what they pick up during the course of their employment.

The art they have to search consists mainly of issued patents. Yes, PTO groups such as the group responsible for computer software have their own libraries and sets of reference materials, but for the most part, these materials cannot be searched on line by examiners.

Why is this important? It's important because examiners in the PTO work on a piecework basis. Their future with the PTO depends on how many cases they can move across their desks, by either allowing them, or rejecting them. From what I see coming across my desk as a patent practitioner, this means only citing what they can find in their on-line searches. Put simply, they don't have the resources or the time to do a good job.

Yes, there are exceptions to this rule. About one office action out of twenty I see gives me some hint that the examiner actually read the application, rather than merely glossing over the abstract and the claims, and doing a search for matching words.

And what happens when the examiner can't find something with matching words? Well, some times they stretch what a reference covers. Actually, they seem to do that a lot. But a good practitioner rubs their noses in it, and gets them to admit they don't have good prior art. Then the application issues.

So because the PTO doesn't have access to good prior art, or people who know where to look or have the time to look for it, wild things get through (not just in the software arts -- look at biotech for some really scary patents).

The PTO has tried to minimize the damage it causes by giving what practitioners consider to be nonstatutory rejections "it's too broad" on cases, forcing practitioners (patent attorneys and their clients) to either narrow the focus of their claims, or go through lengthy appeals (which practitioners usually win.)

But again, because the PTO folks don't know software, how it works, or how things fit together, occasionally they'll let a whopper through. Looked narrow enough to them at the time, right?

What can we do?

Learn what the rules are. I'll be going through a patent with a group of engineers and one (or more) will scream, "But that's obvious!" I'll smile and ask them to find me a printed reference describing it, one published more than a year prior to the filing date of the patent. It may be obvious to them, but to make it obvious in terms of patent law, you need the prior art reference.

Watch published patents. Already mentioned in this thread. If you have good prior art, consider sending it to the PTO (a separate large discussion goes here on the value of prior art and what to do with it). Send it to Greg Aharonian? Another big debate.

Get things published in technical and semi-technical journals! Build the body of printed prior art! You don't have to have a Journal of the ACM publication or a Ph.D. thesis to qualify as prior art. Mad Magazine has been cited as prior art by the USPTO!

Raising a stink when the PTO issues a whopper also helps. But you need to do it in specific terms, not just "software patents are evil." You need to raise a stink that the PTO issued this particular whopper because it didn't take into account THIS prior art, and THIS prior art, and THIS OTHER prior art going back to Corbato and Multics.

I'll also mention that PTO examiners are underpaid and under a great deal of pressure. Some art units have extremely high turnover, increasing the problem.

Yes, the system has problems, especially with respect to software patents, but it's better than no protection at all.

Respectfully submitted,

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Patents - An Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 08:12 PM EDT
Nice try, but no dice.

It's not true that you can patent any innovative discovery, or that you should.

You can't get a patent on abstraction, even major innovations.

It's for the same reason you can't get patents on mathematical calculations,
even innovative ones. You can anticipate that somebody might have a patent on a
discovery that shows us something new about the forces of nature. But to say
that an abstract process should be only available to one person to
"manufacture," is unreasonable.

What's happened is, we now all have generic logic devices. Those devices are
unique in that they provide automated *logical* functions to everyone.
Therefore, instructions designed for such a machine are inherently abstract.
All that's needed to straighten out the patent system is to remember the
principles.

All you need to do is require patent applications include a short statement
saying that their claim does not cover instruction sequences designed for
execution on a general purpose logic device.

Then, even if mistakes occur and a patent is granted on something that is
nothing more than logic, there would be no confusion. The code contained in the
claim would not be covered, and would not be presumed to be covered.

[ Reply to This | # ]

Yea... He's wrong...
Authored by: BitOBear on Monday, October 11 2004 @ 08:19 PM EDT
The simple fact of the matter is that the level of complexity of software is too
high; and software is, by its nature, too derrivative for this to be an even
vaguely useful perspective. (In My Humble Opinion, anyway. 8-)

I cannot speak to to what he developed and how it (hopefully) worked out well
for him.

I can speak to the exceeding probability that his patent, as described in its
claims probably doesn't protect him from being picked appart from underneath.

So he came up with his "much faster" data collection algorithm. But
he has to communicate with the device; his algorithm runs in some context; the
data is stored somewhere; the data is used to display and print things. So if
someone has patented his file system (FAT patent, disceased) or database or
language feature (Sun vs Kodak) or whatever else, there are eight or ten weeping
holes from which a letigous foe can use to sap away his value into their own
coffers.

To a great extent his suggestions are "shorten terms", treat software
patents like trademarks "use and defend them, or lose them" and, most
critically, "everybody play fair and be honest."

It is the "fair and honest" part that will not happen. Consider that
Communisim would be "the perfect system of government" if only people
were not involved. Sadly they are, and so it isn't.

The reason Copyright exists (IMHO of course 8-) is because the literary
confluence of ideas is dependent and derivitave. Just like software. The rules
for copyright have been worked out over time and are pretty good for (applicable
to) software.

Software is just a huge exercise in precise metaphore. I'm not making that up,
it is implicit in the entire experience. You computer screen presents you with
a "desktop" and you have never done a thing with a computer that you
havn't already done or imagined fully in real life.

Finding a new way to pack data isn't any different than finding a better way to
pack a box.

It is not that these efforts to pack a better box, reduce data overhead, present
better and more menaingful pictures, or whatever are without value. It's just
that when they are expressions as anything other than code (e.g. patent claims
etc) they are insufficent to describe the activity. The spesific code is
spesific the spesific expression. The "gist" of the code is too vague
an aproximation for someone to own.

It always and finally comes down to what is being expressed.

From Mr James patent abstract (just the abstract, to keep this theoretical)
"...system implements a scan strategy in which each full range scan
alternates between a normal measurement mode and a survey mode based on a
block/gap map made during the previous scan. Survey mode is used within regions
that were determined in the previous scan to lack signal above a predetermined
threshold..."

(Unfar and gross simplification follows...)

Ok, so he now owns "going back to look only at the questionable parts
instead of the whole thing" when performed on this device. Really, how can
someone expect to own "just rechecking the questionable parts". Thats
just the way things are done. You don't look for mice in the middle of the
room, you look in th corners and baseboards, and you check for freying at the
edges of cloth. It is instrinsic that you look for variations in boundry
conditions and you study what is barely and porely seen. You don't keep
repeating what you already know well. That is his patent.

Sure, there was more to it than that. Effort was expended and code was written.
But a court, who doesn't know a mass spectromiter from a hole in its collective
head, will not be able to tell *HIS* means of "going back" from anyone
elses, even if they are subtly but significantly different.

So, since he has "more" than the copyright to his program, but instead
owns "all the possible programs like his original" nobody can come in
and make something that is "just" 1% better in some way. At least not
witout infringing. But a percent here and a percent there has real, cumulative,
public-good value.

Too bad. so sad. Craig James owns it for 20 years. Pay now, or come back in
2009, if you want to get that 1%...

Since software is derrivative of its peers AND the fundimental nature of thought
and communication, it cannot be owned without hideous negative consequence.

There is no "better" version of software patents that doesn't
necessarily involve everyone being "naturally honest". But if
everybody was "naturally honest" you wouldn't need patent, trade mark,
trade secrets, or copyrights as peopel would already be doing the right thing.

The whole "I'm still using it" metric is unrealistic. "Duke
Nukem III" has been "almost ready for release" for years now.
The "I'm building it, I own it, but they beat me to market so they have to
give me their profits" model is no better that just "I own it and they
owe me money" model. It's the same thing but with a differing degree of
set dressing.

I will give Mr. James credit for seeing how to elliminate ineffecencies in the
way this device worked, or communicated, or whatever. I cede that he should
benefit from that. But the instant his right to benefit *prevents* the next guy
from seeing inefficencies in the way *his* improvements work and in turn
benefiting from *that*, Mr James' rights should be considered exhausted.

Either that or we just have an "invention fair" every 20 years and
outlaw progress in the meantime. That's basically what software patents do,
just not all at once.

[ Reply to This | # ]

Finding a Solution Isn't the Problem
Authored by: Anonymous on Monday, October 11 2004 @ 08:32 PM EDT
Nice try, but no dice. The legal solution isn't the problem. The problem is
all political. All these concepts have been suggested before, and they all just
reflect basic, fundamental misconceptions what can be patented.

All you need to do is require patent applications include a short statement
saying that their claim does not cover instruction sequences designed for
execution on a general purpose logic device. That would cover code in any form,
just defined in terms of the fact that it's abstract instructions for a machine
designed to be abstract.

Then, even if mistakes occur and a patent is granted on something that is
nothing more than logic, there would be no confusion. The code contained in the
claim would not be covered, and would not be presumed to be covered.

What's happened is, we now all have generic logic devices. Those devices are
unique in that they provide automated *logical* functions to everyone.
Therefore, instructions designed for such a machine are inherently abstract. All
that's needed to straighten out the patent system is to remember the
principles.

It's not true that you can patent any innovative discovery, or that you should.
You can't get a patent on abstraction, even major innovations.

It's for the same reason you can't get patents on mathematical calculations,
even innovative ones. You can anticipate that somebody might have a patent on a
discovery that shows us something new about the forces of nature. But to say
that an abstract process should be only available to one person to
"manufacture," is unreasonable.

The difficulty is just getting people to look at what is appropriate subject
matter for patents, and remember that you can't patent abstraction.

The solution is not difficult; what's difficult is just the overtaking of
politics by interests that think protection should be extended to anything at
all. That's all. When we're talking with policymakers instead of them, the
answers are self-evident. So just get to that point once again, that's all.

[ Reply to This | # ]

Patents - A Topic for Open Legislation?
Authored by: Anonymous on Monday, October 11 2004 @ 08:56 PM EDT
Folks,

Whether or not you agree with the points raised in this article, it does serve as a basis for some affirmative action. Software patents are a malignancy that need to be operated on; and preferably sooner than later.

Would it not be more productive if someone on this forum started an 'open legislation' project that addressed the problems?

James' article is the first one I've seen that proactively tackles the issue. I think it's got a long way to go, but nonetheless it's a pretty good starting point.

Any takers?

[ Reply to This | # ]

Patents - No Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 09:13 PM EDT
Patents are locking away more then just the ideas and developments they cover,
they are locking away information and thinking.

As more use mathematics as they use programming languages to create their work,
parts, large parts of these tools of thought to create are being locked away for
profit. A given programming language has only so much function to go around, if
large cuts of it are removed by patents, soon the programming language has no
value as a tool.

The largest threat is to our young that will learn what ?; maybe there will be a
license required to learn math, science, for learning how to use a computer or
the home tv remote-control. The question is when are patents going to stop
before they stop us.

Limited or closed schools, libraries and bookstores, without the license to sell
or use information as simple as turning a door knob to the right, because
someone else has the patent on turning it to the left, and because of the
cross-license agreement between the two, the schools, libraries and bookstores
are subject to be sued or closed down if they do not obtain all required
licence.

Alternative View ?.

[ Reply to This | # ]

Alternative to publication?
Authored by: Anonymous on Monday, October 11 2004 @ 09:18 PM EDT
Hi all,

I mostly agree with the original post. One area where I worry is the
suggested public review. Public review is great as long as the public is
actually reviewing. It requires the public to act as unpaid patent examiners.

Does a patent become worthwhile simply because noone from the public is
looking?

The other problem with public review is the issue of what is obvious. The
history of science is littered with ideas that were 'obvious' once pointed out,

but it took a genius to point them out in the first place.

One possible alternative to publication is to delay all patent applications for
2
years. Anything developed in those two years can be considered prior art. If
this post-hoc prior art is not developed in two years, then the patent can be
considered non-obvious.

The effect of this is that you can only patent something if it is genuinely a
large advance (you are at least 2 years ahead of the competition). If you
simply have a small improvement, or you are the first to develop an idea
whose time has come, then you do not get a patent.

This suggestion also has its problems, but I thought I'd mention it...

[ Reply to This | # ]

Affirmative Action Against Software Patents
Authored by: Anonymous on Monday, October 11 2004 @ 09:22 PM EDT

In Europe, they need to hear from us. Their law is already on our side; the
legislators in Europe and the foolish patent lawyer interests at the European
Patent Office need to hear us talk shop, straight up with them. Find a country
and send them comments, both from pure principle, and based on the American
experience:

http://kwiki.ffii.org/LtrConsSend0406En
http://kwiki.ffii.org/ShortIntroEn

Just tell them to honor the law; they had a clue in the 1970's when they passed
their law. Tell them to quit trying to weasel around it in the name of enabling
patents on abstraction. The second link above is a very good, pretty simple
account of where they're at.

For the legally-curious, here's a link to a case to read, to see how outrageous
they've let themselves get:

http://legal.european-patent-office.org/dg3/biblio/t970935eu1.htm

Here's a link naming one of the main guys responsible for the idiocy.

Teufelian logic: http://swpat.ffii.org/akteure/teufel/index.en.html

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Dashing Leech on Monday, October 11 2004 @ 09:40 PM EDT
Finally, someone with some common sense a good head. Every time I try to argue the "baby with the bathwater" point I only getting grief. But Craig is much more eloquant in his presentation and positive suggestions.

Though I can see some refinement will be necessary on these suggestions, they are a good starting point. It's certainly a big step in the right direction.

[ Reply to This | # ]

Richard Stallman's Testimony to the PTO Hearings
Authored by: Anonymous on Monday, October 11 2004 @ 09:40 PM EDT
Read any of the writings or text of Stallman's speeches!

Here is a good one! (oh - get firefox and all these urls become clickable
links)!

Stallman's Testimony to the PTO Hearings
http://lpf.ai.mit.edu/Patents/rms-pto.html

Software Patents (overdone and done well at MIT)
Think first and here is the method to the maddness!
Check this site out for all the all about software patents!
Software Patents
http://lpf.ai.mit.edu/Patents/patents.html





[ Reply to This | # ]

Patents - Why not to abandon the call for abolition
Authored by: Anonymous on Monday, October 11 2004 @ 09:56 PM EDT
As someone who has researched the legal basis (or rather lack of one) for
software patents for months, I feel that I must respectfully disagree with the
author. There is no realistic possibility of swpat "reform" on the
scale proposed.

For example amongst the proposals is a shorter lifespan for swpats vs. other
patents. You cannot do this under TRIPS which says that all patents must last 20
years. Software is not even supposed to be subject to patent law as it is as I
keep saying a "literary work" under these treaties without prejudice
to the author.

Why abandon a valid legal argument to scrap swpats on the grounds of
international law violation, only to persue the arguement that software should
be patentable and then argue that it needs reform which is not allowable under
international law anyway?

The idea that just because swpats are granted in the U.S. and more recently in
the E.U. that we have to accept them as an unalterable fact of life even though
we all know that they are legally and logically abhorrent makes no sense to me.

I wrote an in depth paper on this subject that puts across many of the points
touched on in this thread, but in legalese where I looked in detail at the law
at national and international level available at:

http://www.beauprez.net/softpat/defence.html

Sorry to use this as a platform but I would like you all to raise awareness of
this paper as it took a lot of research to complete.

[ Reply to This | # ]

  • Dont be sorry - Authored by: Anonymous on Tuesday, October 12 2004 @ 07:23 AM EDT
Patents - An Alternative View
Authored by: Anonymous on Monday, October 11 2004 @ 10:12 PM EDT
I think the public review idea might work. Perhaps the USPTO can offer a bounty
of say $1000 to anyone that can provide any prior art for any given patent. If
the patent holder was then liable for that, maybe companies might think twice
about registering patents that most likely are invalid.

[ Reply to This | # ]

The reality of drug companies and patents
Authored by: Anonymous on Monday, October 11 2004 @ 10:45 PM EDT
Tell us, Mr. James, what you know about the lavish spending by drug companies? Will it be an honest response? Patents are meant to do one thing: secure wads and wads of cashflow so the company executives can live lavish lifestyles. Marketing and sales are a second priority. Developing products (in this case, new drugs) is an even lower priority. I am not aiming to pick on drug companies, because I believe most US corporations are inherently dishonest. The public interest is rarely the motive; profits are. And with higher profits come executive bonuses, a huge motivator for the patent greed. Let's not avoid some of the ugly facts, Mr. James. Here's a reality check for those interested in a different viewpoint:


http://www.aflcio.org/aboutaflcio/magazine/0503_bigfix.c fm

Working families and seniors may worry about skyrocketing prescription drug costs, but big pharma executives are not likely to be choosing between blood pressure medicine and buying groceries: The five most highly paid drug company executives pocketed more than $183 million in compensation in 2001, with the top 25 pharmaceutical execs averaging nearly $6 million in annual compensation in 2000. That compensation does not count stock options, which can add millions of dollars to a CEO’s income. In 2000, Greider reports, the chairman and CEO of Bristol-Myers Squibb held unexercised options valued at $227.9 million."

http://www.mercola.com/fcgi/pf/2002/mar/9/do ctor_payoffs.htm

"A week ago last night, about two dozen doctors gathered for cocktails and dinner at the Plaza Hotel in New York, guests of a pharmaceutical company that planned to solicit their "advice" and "feedback" on the treatment and management of depression.

The doctors didn't have to rush home after dinner. Forest Laboratories Inc. treated them to an overnight stay at the Plaza, where even the least desirable rooms -- those without Central Park views -- go for about $250 a night.

Saturday morning, after a free breakfast, the doctors participated in a four-hour discussion about depression, which can be treated with Forest's best-selling product, Celexa. Then, after a free lunch, each doctor was offered a token of Forest's appreciation: a check for $500."

http://www.familiesusa.org/site/PageServer? pagename=media_press_2001_drugceos

"Washington, D.C. - A new report by the consumer health organization Families USA refutes the pharmaceutical industry's claim that high and increasing drug prices are needed to sustain research and development. The report documents that drug companies are spending more than twice as much on marketing, advertising, and administration than they do on research and development; that drug company profits, which are higher than all other industries, exceed research and development expenditures; and that drug companies provide lavish compensation packages for their top executives.

The report comes on the heels of a recent Families USA analysis that found prices rose more than twice the rate of inflation last year for the 50 most-prescribed drugs to seniors.

Among the nine pharmaceutical companies examined in the report - Merck, Pfizer, Bristol-Myers Squibb, Pharmacia, Abbott Laboratories, American Home Products, Eli Lilly, Schering-Plough, and Allergan - all but one (Eli Lilly) spent more than twice as much on marketing, advertising, and administration than they did on research and development, and Lilly spent more than one and one-half times as much. Six out of the nine companies made more money in net profits than they spent on research and development last year."

http://www.usatoday.com/news/health/2001-05-16-perk s-usat.htm

"Physicians don't seem to be making the connection between the exorbitant prices for drugs and what is spent to lure them into prescribing," says Gerstein, director of pharmacy services for Tufts Health Plan in Massachusetts.

That's nonsense, says the drug industry. Its trade association says the $14 billion spent annually on marketing efforts mainly serves to inform doctors and consumers of the risks and benefits of new and existing drugs, with half that cost being to provide samples for doctors to give their patients.

"The (sales reps) will provide detailed information about the medicine," says Jeff Trewhitt of the Pharmaceutical Research and Manufacturers of America. "At that point, it's up to these doctors, the vast majority of whom are fiercely independent, to make a judgment."

Marketing tactics aren't new, but they're escalating in value as well as frequency:

- Since 1996, the number of sales representatives hired by drug firms has doubled, from 41,800 to 83,000 last year, according to industry tracking firm Scott-Levin.

- The drug industry spent $5.3 billion last year on advertising in physicians journals and sending sales representatives on office visits, up 10% from 1999.

- The drug industry sponsored more than 314,000 physician "events" last year, ranging from catered lunches in hospital conference rooms to getaway weekends at resorts, nearly double the number held 4 years earlier, Scott-Levin reports. The tab? Nearly $2 billion.

http://www.impactrx.com/presscenter/releases/ 2002-0617.asp?on=articles

Some consumer advocates believe that doctors routinely profit from the spread between what they pay drug firms and what they charge patients for drugs that must be administered in a physician’s office, the only class of drug that Medicare now covers. Johnson & Johnson is defending itself against two suits from consumer groups involving doctors’ profits from samples of its expensive arthritis drug, Remicade.

Meanwhile, Pfizer is under inquiry from both federal investigators and several state attorneys general for the promotion to doctors of Neurontin, an epilepsy drug it acquired with Warner Lambert in 2000. Here the issue centers on whether salespeople broke federal rules by marketing the drug to doctors for the treatment of diseases for which it had not been approved by the Food and Drug Administration.

[ Reply to This | # ]

Released to public domain? Cool!
Authored by: Anonymous on Monday, October 11 2004 @ 11:12 PM EDT
Here's an article *I* wrote a couple days ago about reforming the patent system.
As you'll see, my ideas are insightful and practical. It's also a bit
fictional because I make some false claims about inventing things that I did
not. But otherwise, *I* wrote this article.

------------------


Patents - An Alternative View,
by Anonymous User

Groklaw and other FOSS sites have recently advocated essentially abandoning
patent protection for software, either by getting rid of software patents
altogether, or by exempting FOSS from patent enforcement. This seems like a case
of throwing the baby out with the bath water.

Software patents are being abused, but patents are important and useful, and
with sensible reform to patent laws, patents could encourage innovation, which
is the fundamental purpose of patent law.

The problem with current patent laws are many, but to list a few:

* Patents are granted frivolously.
* Litigation is heavily weighted in favor of large corporations; in
fact, individuals and small companies simply can't litigate.
* It is almost impossible for an innovator to know if there is a patent
already covering his/her innovation.
* Patents can be used to block use of an innovation rather than
encourage its use.
* Holders of "submarine" patents can deliberately lurk,
predator-like, waiting for honest, unsuspecting innovators to invest huge
amounts of time in already-patented technology. Straightforward and fair changes
to patent law would completely change the landscape of patent litigation and
innovation.

Suggestions

1. Require publication and public review of all software patent applications
prior to issuance, regarding the key elements of a patent -- prior art,
innovation, "non-obvious" technology, and that it's an actual
invention.

2. Change the law, so that individuals and small businesses can investigate and
rectify actual infringements with modest legal fees, and so that wealthy
corporations can't force a settlement simply because their victims can't afford
to litigate.

3. Shift the burden of discovery of patent infringement to the patent holder. A
patent holder must actively monitor products and technology, or forfeit his/her
patent rights.

4. Prohibit damages in arrears. If a patent holder discovers infringement,
royalties could only be collected once the infringer has been notified and given
reasonable opportunity to remove the infringing code, or enter into a royalty
agreement with the patent holder. The exception would be when it can be shown
that the infringer must have known or did know about the patent.

5. Require that a patent holder use the technology or lose the patent. A patent
could not be simply held indefinitely. This would put an end to both
"submarine" patents, and to "patent holding companies", both
of which stifle innovation and impede commerce. It would also end the practice
of obtaining a patent to block technology -- patents could only be used to
develop and create products. Patents could not be used as a speculation
commodity, and innovators would be free of unknown and unknowable legal traps.

6. Shorten the life of a software patent compared to traditional patents, to
reflect the nature of the business itself. Seventeen years (now twenty) may have
been appropriate for the color TV tube, but it's an absurdly long time for a
software innovation. Some of these would be tricky, and surely require more
careful definitions. For example, what constitutes "use it or lose
it"? Guidelines would help, for example three years might be a "grace
period" where the presumption of a valid patent is with the patent holder,
but after three years with no product on the market, the burden of proof of
ongoing activity would shift to the patent holder.

Patents have historically served an important need. Huge investments in research
are often required, whether in semiconductors (the transistor), electronics (the
color-TV tube) the drug industry, and many, many other industries. Including
software -- I myself received a software patent for an invention that required
months of research and years of development. Once the product was on the market,
anyone could have copied it.

Ironically, I am also the victim of one of the most notorius software patents:
The infamous "XOR Cursor" patent, #4,197,590, filed in 1978 and
granted in 1980. Way back in 1976, while a student at UC Davis, I built a
computer terminal for NASA that used an XOR to move the cursor around the
screen. The work was published in an obscure NASA journal. Only recently did I
learn that Cadtrak has collected large sums of money and successfully defended
patent #4,197,590 against a number of claims, on something I invented as a
sophomore computer-engineering student. Talk about "obvious to anyone
versed in the art." Had our work for NASA been more widely published, or if
I'd worked in a job where I might have run into the Cadtrak controversy, Cadtrak
would probably have lost the patent. Instead, I only found out about the XOR
patent last year, after it had expired.

There is no doubt that software patents are being abused.

But to throw the proverbial baby out with the bathwater is to ignore the
critical role patents have played in some of the greatest inventions in history.
Take one example: Zantac, sold by GSK (formerly Glaxo). Zantac was said to be
the single most lucrative product in the history of commerce in the world (it
may have been passed by Viagra by now...) Before its invention, stomach-removal
surgery was the most common surgery in the United States, because bleeding
ulcers were often uncurable and fatal. Now surgeons hardly remember how to
perform the operation - it's only done for morbid obesity. Zantac is a virtual
miracle drug, vastly improving millions of peoples' lives. And we're not talking
about headaches here. We're talking life or death.

Zantac would not have been developed without patent protection. The cost to
bring a drug to market is measured in the hundreds of millions to billions of
dollars.

Unfortunately, the drug industry is abusing the patent process. For example,
they often file ten bogus patents for every bona-fide patent, in an attempt to
obfuscate what they're really working on. They file blocking patents to prevent
new drugs that would compete with their lucrative products. They've been accused
of using their monopolistic position for a particular disease to reap huge
profits, to the detriment of society and sick individuals.

A software invention doesn't require the same massive investment as a drug, but
it's not free, either. A true innovation, one that's worth patenting, should
come from hard work, insight and genius. And the inventor should be able to reap
the benefits of his or her invention, by receiving some period of exclusive
use.

While I sympathize with those frustrated by the abuse of software patents, I
believe it is naive to think any legislative body would vote to eliminate
software patents. Reform requires realistic goals and sensible proposals. If we
want to be ignored as the left-wing fringe, then we can keep on advocating an
end to software patents. But if we want to be taken seriously, we should propose
and lobby hard for reasonable changes to patent laws.

[ Reply to This | # ]

Patents - An clear View
Authored by: Anonymous on Monday, October 11 2004 @ 11:25 PM EDT
From the USTPO: Patent 6,802,029
The person in the link below, is named in the patent, and works for the Oracle
corp.( or did ).
http://www-cs-students.stanford.edu/~jianzh/


The patent: Operating system and data protection:
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&am
p;u=/netahtml/search-bool.html&r=3&f=G&l=50&co1=AND&d=ptxt&a
mp;s1='linux'&OS=%22linux%22&RS=%22linux%22

Attention, a search for Terms linux, & windows, brings up this very same
patent 6,802,029 in the results of both. The claim in another post, that this,
as well as other patents are specific to linux is not correct. Please, the word
linux only came up once, with many other OSs, in the patent 6,802,029 document,
only in the section about what OSs this patent is "geared for".

If you are to fight patents, be clear on the facts as what patent is or is not
about linux. The attacks on PJ are wrong, if you feel you cannot read here then
IMHO don't; but do not attack PJ just because you do not agree.

[ Reply to This | # ]

Patenting system is fundamentally flawed
Authored by: morsch on Tuesday, October 12 2004 @ 12:02 AM EDT
Similarly to Dormouse's "hardline view", I also have increasingly
doubts about the patent system in general. I consider myself a bit as an
inventor, so I understand why the patent system has been created and why people
feel the need to be able to protect their idea. Idea people are often forgotten
once others come on board or even "steal" the idea with no
compensation.
Unfortunately the whole patenting process is fundamentally flawed:
- Patents are not fair nor can they ever be fair. First come first serve
ignores how ideas and concepts get developed. If I am not a citizen of a well
developed country, I am at a disadvantage.
- Inventors and innovators who do not want to take part in the system are
punished. They are always on the defensive and under the threat of having to
prove prior art to someone else.
- The current system is beneficial to large corporations, not the individual
inventor or small company. Small orgs and individuals cannot delegate patent
writing and defending to someone else. Patenting will always eat up a
disproportionate amount of time and resources.
- Who will pay license fees in the end if the big corporations all have mutual
patent agreements?
- The system is beneficial to those who can afford a patent specialist to
broaden the claims.
- The patenting is increasingly abused by patenting discoveries (biotech, GM,
pharmaceutical ind), too broad claims, patenting despite knowledge of prior art
etc. Because the system works in such a way that de facto a patent is
"enforceable" unless someone challenges it. And what is cheaper,
paying a wrongful claim or going through years of uncertain legal proceedings?
- Patenting approval process is a joke. There are too many applications and it
is humanly impossible to check them all.
- With todays specialisation, patenting experts (lawyers, approvers etc) must be
all supermen to understand the requests and claims.
- If the patent offices cannot cope with the number of patents submitted (not
counting the software ones), how can we expect the court system to be the
ultimate instance? Again this is an invitation to request the granting
fraudulous and frivolous patent. The chances of getting caught are reduced.
- The "late starters" and the developing countries cannot but silently
or openly encourage their people to "ignore" IP , copyrights and
mainly patents. Otherwise they might never succeed in catching up with the
west, as an ever increasing part of their investment would go directly to
western patent holders. (see Huawei and Cisco, BTW even Siemens is partnering up
with Huawei, as they seem the only ones who can break the Cisco monopoly)

And now think of China and India in 20 years. Either they will then own a large
number of the patents. The western world wouldn't like that and the patent
system would be abandoned by it's parents, otherwise the pure economical weight
of China alone will crush innovation in the western world. Or China and India
will ignore the patenting system at which time their economical power would make
our patenting system meaningless.

So lets start thinking about alternatives.

[ Reply to This | # ]

nice try, but no cigar
Authored by: unsubtle on Tuesday, October 12 2004 @ 01:00 AM EDT
i think there are some good and some bad ideas in this article, but none of them would significantly reduce the massive harms that s/w patents are likely to cause. i won't attempt to restate what rms has already put much better than i could. it is not a sensible strategy to settle for something (these proposals) that neither solves nor significantly reduces the problem.

the comparison with drug development is beside the point. drug development costs so much money that there's a real problem of why anybody would choose to do the development at all. patents may or may not be the best solution to that problem, but they are a solution to a problem. for s/w development, there is no similar problem: s/w patents are the problem.

it's also entirely wrong to suggest that only left-wing people would oppose s/w patents. i take it that the underlying idea is that right-wing people are strong supporters of property rights. well, s/w patents conflict with the rights of s/w authors. you don't (magically) get more IP rights: you have to choose which IP rights are more important, copyrights or s/w patents. also, all IP rights (== intellectual production rights) confict with genuine property rights, since they restrict what people can do with their own property (e.g. copyright restricts what i can do with my copy of the latest harry potter book, my scanner, my printer, etc.). the correct way to defend property rights is to minimize IP rights.

some responses to the individual proposals:

1. Require publication and public review of all software patent applications prior to issuance ...

this would only eliminate a very few s/w patents. who pays for the review, or does it rely on (appropriately skilled) volunteers? potential volunteers would mostly do far more good by instead volunteering to (a) actually do creative work e.g. write s/w; and (b) campaign to end s/w patents.

2. Change the law, so that individuals and small businesses can investigate and rectify actual infringements with modest legal fees ...

affordable litigation would be very useful (though it would not remove most of the disadvantages of s/w patents) in not just patent law, but also most areas of civil law. but you don't say how to achieve it! which is fair enough, because it's a difficult problem. my point is just that you're not actually offering a solution here, just restating a problem. i'm not offering a solution here either; i'll quote shakespeare instead: "first, we'll hang all the lawyers".

3. Shift the burden of discovery of patent infringement to the patent holder. A patent holder must actively monitor products and technology, or forfeit his/her patent rights.

unlikely to help at all. also, patent holders would have to go through a more complicated/expensive process. big companies could do this, but it would be even harder for little people/companies to use patents; so the big-company bias of the patent system might get even worse. also, this would make patent law more complicated, so it would be counter-productive on point 2.

4. Prohibit damages in arrears. ...

i agree.

5. Require that a patent holder use the technology or lose the patent. ...

doesn't help at all. patent holders could, if necessary, launch a product solely in order to comply with this requirement. then there would have to be a new legal issue about whether a use of a patent was "real" or merely an attempt to get round this requirement. sometimes there wouldn't be an clear right answer. like point 3, this point would make patent law even more biased towards big companies, and make the law more complicated (counter-productive on point 2).

6. Shorten the life of a software patent compared to traditional patents ...

i agree ... to 0. :-) seriously, whether some large-ish new progam written in 2020 infringes 200 or 50 or 20 s/w patents would make very little difference. in any case, the program couldn't be deployed at all (except by a company with a huge s/w patent portfolio who could cross-license patents, thus shutting out all individuals and small companies from (non-trivial) s/w development - i.e. bill gates' dream).

[ Reply to This | # ]

Author's final comment
Authored by: cjames on Tuesday, October 12 2004 @ 01:41 AM EDT
I am amused, impressed, and sometimes saddened by the responses. A few more
comments, then I'll leave this alone.

First of all, thanks to everyone for a lively discussion, especially those of
you who gave thoughtful responses, whether you agree with me or not. I'd like
to especially thank those who proposed concrete ideas and proposals. Anyone can
cut down the ideas of others, but it takes real thought to make specific
suggestions.

A number of you castigated me as a supporter of the pharmaceutical industry. Go
back and re-read my article please. I'm the first one who pointed out abuses by
the pharmaceutical industry. The reason I chose Zantac was because it
illustrates the double-edged sword of patents. They're both necessary to
protect the research, AND they're widely abused, all in the same industry. Just
like software patents.

A number of you argued that software inventions are different than
"regular" inventions. I have yet to see a cogent argument why this
should be (and don't tell me about current law, I'm talking about what's right
and wrong). Either we protect inventions, or we don't. Inventors whose medium
is software shouldn't be singled out as second-class citizens, with their
intellectual property rights stripped away. If you want to argue that ALL
patents should be abolished, I'll take you more seriously.

Arguments that software is somehow easier, faster, shorter-lived, don't sway me.
Those are difference in detail, not differences in kind. The fact is, there
are genuine inventions in software, and if inventions deserve protection, then
software inventions should be included.

All this stuff about "software is mathematics" is drivel. Hardware is
physics, too (as JohnPettigrew and others pointed out), and you can't patent
physics. It's the invention that's patented, not it's specific embodiment as
computer instructions.

And I'm disappointed that some of you felt personal attacks were appropriate
(his patent is trivial, he's a Microsoft shill, he's a troll...). My essay was
thoughtfully and earnestly written, and your personal attacks only show your
lack of respect for the debate process. The truth is, I'm on your side. I'm a
strong proponent of individual property rights, which includes FOSS as well as
for-sale software. I'm a UNIX specialist, and have been using UNIX since the
early 1980's, before some of you were born. I'm a fierce opponent of
Microsoft's dominance and inferior product, 'tho I'm forced to use it because of
Microsoft's monopoly. I'm no Einstein but I'm proud of my patent because it was
non-obvious and was a genuine invention. And no, it didn't just "come to
me" -- I worked hard on dozens of variations before I discovered the right
way.

In spite of my original article, it's a complex question, both technically and
socially. Let me offer a counter-argument to my own.

A fellow musician who sat next to me in the Santa Fe Concert Band was writing
software at Los Alamos before the first computer was actually available in World
War II. Imagine that software patents had been granted starting in 1945. Every
algorithm in Knuth could have been the subject of a patent. Hash tables,
queues, linked lists, quicksort, bubblesort, B-trees, various numeric methods
such as Newton's method ... all might have been patented. Where would we be
today?

Let's not forget one important fact: Every single person who responded agrees
that change is needed.

Craig A. James

[ Reply to This | # ]

One thing we really need
Authored by: eric76 on Tuesday, October 12 2004 @ 01:53 AM EDT
Patents should be protection against copying an idea, not from independtly
reinventing the same idea.

If a person or company independently comes up with an idea and develops it, it
should never be declared to infringe upon another's patent.

[ Reply to This | # ]

Well-written, but the drawbacks not clearly stated
Authored by: Anonymous on Tuesday, October 12 2004 @ 02:23 AM EDT
This is a well-written article, and is at least an aid to discussion. If there must be software patents, then this at least is an improvement, though I'm not sure how some of these points would actually be implemented.

But the arguments here isn't as convincing on the most basic question: is there so little innovation in the software field that a government-granted monopoly is absolutely necessary to gain innovation? A patent is actually an extreme measure: you're granting a monopoly for a lengthy period of time. The U.S. Constitution only permits such monopolies if they serve the public interest (I've forgotten the exact phrase); the purpose of patents is not to enrich a patent-holder, exactly, but to encourage innovation.

And here, there's no evidence of a need. In fact, there's strong evidence that software patents have inhibited, not aided, innovation. Clearly, software innovations occurred in the decades before software patents were allowed. Since there is no need for software patents, and they have clear drawbacks, they really shouldn't even be allowed as a Constitutional matter.

Software is not at all the same as medicine. In medicine, the costs of getting that first approved dose is considerable. The typical costs of innovation in software are quite small in comparison. Also, software already has a legal protection system: copyright. There's no need for two legal systems to protect software; you can't copyright medicines, for example. The government has a responsibility to edge its nose into commerce only when absolutely necessary to protect public interests; it is very unwise for governments to meddle unnecessarily. Software patents are basically unnecessary government meddling; they grant a monopoly for an idea, without there being sufficient cause to grant such monopolies in the first place.

It also ignores some serious practical issues. Today's software is millions of lines long, containing probably 100,000 to 300,000 ideas... and they're getting longer. Usually only a few patents apply to a medicine. Software simply isn't limited by physical scales, and thus becomes an amazing collection of different parts. The result: it simply isn't practical to even do a patent search to the same thoroughness as in other fields. Fundamentally, good software must build on previous ideas, just as in science, ideas build on previous ideas. Inserting a 10-20 year delay for each idea would slow down innovation to a crawl - as it is already doing in software.

This is an interesting set of proposals. But it tries to make mild adjustments to a system that really needs dismantling.

[ Reply to This | # ]

The Iron Standard
Authored by: muswell100 on Tuesday, October 12 2004 @ 03:40 AM EDT
I recently re-discovered a Science Fiction author I had read quite some years
ago - one Henry Kuttner. He wrote a short story called 'The Iron Standard' back
in the 1940's about a party of astronauts who land on Venus (OK - remember this
is early 20th century fiction, right?) and find a society that has become
sociologically and technologically stagnant, controlled by all-powerful unions
called Tarkomars that maintain control over society by - among other things -
patents.

In one instance, our astronauts attempt to survive by trying to barter with the
Venusians, but find that they have nothing to offer that doesn't require either
membership of a closed-shop trade union, or that doesn't infringe on a patent
held by the Tarkomars. (they try to sell an X-ray machine, but are told that
machines employing vibration impinge on patent 'three-gross two-dozen and seven'
- and light is a form of vibration).

The point being made is that patents are being used in this instance as a form
of control over the whole of society. Patents reward the patent holder by
granting ownership of 'concepts' and denying anyone else from 'thinking along
the same lines', however independently.

If this simple notion was obvious to Kuttner in the early 20th century, how is
it that people have lost sight of it in the early 21st?

[ Reply to This | # ]

(on Final Comments) No, you're still trying to patent abstraction.
Authored by: Anonymous on Tuesday, October 12 2004 @ 03:54 AM EDT
Both physical laws and mathematical laws are abstract. They are designed to be
generalizations, principles that are generally applicable, not particular
concrete methods.

Algorithms are logic. You can't patent abstract logic, because abstractions are
abstracted from any particular concrete implementation. That's what you bottle
up when you patent sequences of instructions controlling a generic logic device.
It doesn't matter what form you put it in, on paper, in RAM, FPGA, whatever --
if it's instructions being provided to a logic processor, it's inherently
abstract logic itself.

You clearly desire to have credit for a logical innovation expressed in the form
of a patent, but that's not any more appropriate than a patent on a
mathematical, physical or other abstract rule.

Why bother with trying to convince people that somehow we have to allow for
software patents, when the nature of it is inappropriate, and in fact we see the
prospect to reestablish the right principle? Why try to convince the world that
we need all sorts of other measures put in place, when it's just a matter of
getting the people who don't understand why abstractions aren't appropriate
subject matter, out of the room, so we can tell the policymakers that it's
really very simple.

The easiest solution -- unless you insist on false dichotomies that are off the
point, such as the hardware/software dichotomy, or just insist on your personal
wish to get a patent bonus for yourself -- is just to have patent claims, no
matter what they're made up of, include a simple statement that no sequences of
abstract instructions for a generic logic device are included, or if they are,
they are not covered by the patent.

That would keep the abstraction exactly where it should be, and it would keep
things clear, so patent examiners don't have to worry about that aspect, and if
there's a mistake there's no presumption that code is covered by patent.

Simple. You just have to see the principle.

Another thing: one pervasive misconception these days, that comes out of the
bizarre entitlement-at-all-costs concept that people have assumed lately, is the
idea that since copyright doesn't cover underlying ideas, that's what patents
are for. That's not true. The truth is, even patents aren't supposed to cover
abstract ideas, except in the very esoteric sense of an innovative concrete
implementation of an abstract idea. A *concrete* idea that is also innovative is
sufficiently esoteric that we can allow people patents on that. The abstract
principles embodied in an invention might include things like the law of gravity
-- that's not covered, even if you're the first to discover the law of gravity.

Logical algorithms are nothing but pure and abstract.

No, abstractions are just inappropriate for exclusive rights. You can't have
either a free society or innovation, unless you recognize and are willing to
respect that principle.

Granted, there are a lot of people like you who just don't want to hear it . . .

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Tuesday, October 12 2004 @ 04:04 AM EDT
"Instead, I only found out about the XOR patent last year, after it had
expired."

Sorry to be rude, but this doesn't inspire confidence that the author is fully
on top of the subject of patents.

[ Reply to This | # ]

Patents - Radical Alternative (limit number)
Authored by: Anonymous on Tuesday, October 12 2004 @ 04:40 AM EDT
I don't know if this idea is new or not, but why not limit the number of patents
per legal entity (person/company/.org)?

A few patents can maybe help SMEs to survive startup, but not if big companies
abuse their large portfolio and financial power. If a large company can have at
most 5 patents, they'll make sure they have only their most important ideas
under a patent, if they want to patent something new, they have to release an
older patent. If they want to have a competitive advantage, they'd better keep
their ideas secret ;-)

I think this would be more in line with the original intention of patents to
help innovation and protect newcomers on the market.

It would also reduce the load on the patent offices quite a bit.

/Simon

[ Reply to This | # ]

A simpler approach
Authored by: Anonymous on Tuesday, October 12 2004 @ 06:16 AM EDT
I've sometimes thought about another way of attempting to limit the damage of
patents. It's a fairly blunt approach, but it has the considerable advantage of
procedural simplicity and unambiguity:

Suppose software (and everything else) can be patented for up to 20 years (say),
but the patent must be renewed every (say) 3 years to remain valid. Each
sucessive renewal requires an increased fee - say doubling each time.

The idea is that it creates market pressure to weed out poor patents. A patent
which isn't bringing in enough revenue to fund another renewal probably isn't a
good enough idea to deserve further protection. It should remain cheap enough
for small players to enter the sytem, while making it prohibitively expensive to
maintain a vast patent portfolio.

It's not perfect, but it is relatively resistant to being weasel-worded around,
which might happen with explicit restrictions on "software" patents.

The same idea could also be applied to copyright (with suitably expanded
timescale), where it neatly deals with the problem of copyright on orphaned or
abandoned works.

[ Reply to This | # ]

The problem is...
Authored by: Anonymous on Tuesday, October 12 2004 @ 06:57 AM EDT
when you put next to eachother 2 totally opposing views, both parties usually
search for some form of compromise, otherwise they will both end up without a
lot of results.

That would work if this *is* the compromise. However, if the current anti-patent
movement changes it point of view and proposes such a proposition instead, I am
afraid that the end-result will be a severely watered-down version of this
suggestion, with several hooks to please the big companies.

This is a great text, no doubt, but I am saying that perhaps it is better to
drive a hard bargain here.

[ Reply to This | # ]

  • The problem is... - Authored by: Anonymous on Tuesday, October 12 2004 @ 09:04 AM EDT
Patents - An Alternative View
Authored by: Anonymous on Tuesday, October 12 2004 @ 09:00 AM EDT
The "alternative view" casts sand in our eyes.

- no defined legal criteria
- nice proposals that are not at stake at all
such as reduction of patent length: The current system is designed for 20 yrs
and it is impossible to grant patents for less than 20 yrs. because of
international law.
- the burden of proof remains reversed.

It is more important for you to get organized and present your interests at the
patent institutions. Show up as a stakeholder in the debate. Do what FFII did in
Europe.

As in Europe we defend our interest it is unrealistic to get a
"compromise" that is not at stake and demonstrates a lack of
involvement in the debate.
http://en.eu.ffii.org/sections/bxl0411

[ Reply to This | # ]

Suggestion Regarding Patent Classification - with a little help from Gollum
Authored by: sproggit on Tuesday, October 12 2004 @ 09:13 AM EDT
Team,

Sat here skipping the posts and a silly idea just hit me. Sheesh - guess I'd better go and patent it quick, then?

Would be nice if the great and the good out there would have a read and shoot it down in flames if it's nonsense...

Throughout the natural world, scientists from all countries have been using a simple system to classify any and all life they discover on this planet. We have genus, species, families and the like to show us how a Lemur is different from a Gorilla, or how a Dolphin and an Orca Whale are from the same family [related] but different.

Abstract out the fact that this is a classification of life, and swap in the technology world [and for the sake of this theory, let's ignore software patents. I love you trollsters, but I'm trying to be constructive here ;o) ].

Now apply patent application/award over the top of a classification system like this. Technology "branches" would evolve in patent applications. All patents relating, for example, to 'internal combustion engines' would live in the same family tree. So a patent lawyer [or an inventor] looking in to a patent in a particular field of endeavour, could quickly and easily search their part of the "Patent Tree" to determine what prior art might have been registered.

There are a lot of problems with patents right now, and this suggestion barely covers even one of them, but I offer it because it seems to me that one problem that exists today is knowing what prior art might be out there. I think this suggestion, or a variation, might help.

You know, as I'm sat here proof-reading this, the purity and simplicity of the FOSS community hits me like a pile-driver. This is just one idea. It's probably not even a good one. Yet in the FOSS world, once shared, other, brighter people can take it, re-shape it, enhance it and make it better. One day it might even find a practical use. In the Old World, where ideas are mine, my Precious..., yessss.... anything that remotely resembles a good idea will be hidden away, jelously guarded and controlled, so that only the rich and the powerful might gaze upon it's beauty.

This is our world and we live in it. What it looks like is up to us...

Feedback?

[ Reply to This | # ]

7. Working model that supports all claims
Authored by: lightsail on Tuesday, October 12 2004 @ 09:15 AM EDT
7. The patent holder must have built a working model that supports all claims.
The model must date to patent application.

The broad patents that are just ideas that have not been created in any real
way, like the Acacia Research patent, which claims all methods of certain
aspects of streaming audio and video, would have to demonstrate a working model
for the entire range of the claims. If the working model failed to fully back
the claim, the entire patent would be voided. This would limit claims to actual
work created and limit over-reaching.

8. The liability of a patent holder in an action would need to be commensurate
with the value of all claims if valid: the defendant upon a court ruling in its
favor would be awarded damages based of the value of the patent if it was valid.
The lack of liability in the process of patenting has created a huge upside to
owning a patent with very little downside. Look at Kodak vs. Sun, if Kodak's
patent which apparently covers hundreds of billions of dollars worth of software
were proven invalid, Kodak would be liable to any individual that could prove
that they were covered by the invalid claim. Class actions could be used to pool
resources to litigate against over-broad bogus patents.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Tuesday, October 12 2004 @ 03:54 PM EDT
Craig, no offense man... I'm sure you're a great programmer... but why do you
feel like your ideas are so special that you should be allowed to own exclusive
rights to them when you, no doubt, formed your ideas by viewing and building on
other people's ideas and work?

You can't patent a passage in a book. (YET!) Why should you be able to patent
source code?

You CAN copywrite a book. Why isn't copywrite enough protection for source
code?

A programming language is a... LANGUAGE! You write programs with a programming
LANGUAGE!

English is a language! You write books with a language!

Where would we be if we were to apply software patents to literature?!?

"Once upon a time..." - patent pending

It's completely and totally absurd to think that we should be able to patent
literature, yet it's much easier to write a book about any topic without reusing
ideas than it is to write a functional program that completes a specific task.

So here we have Craig, who has essentially rewrote The Lord Of The Rings trilogy
by changing the order of events and is now claiming exclusive patentable rights
to this better version of the story, telling us why software patents are flawed
but necessary.

Puhlease.

The only fix to software patents is to REMOVE THE ABILITY TO PATENT SOFTWARE
(which is essentially the ability to patent math)!

Why did this "idea" get a front page link, and has Craig filed for a
patent on it, yet?

[ Reply to This | # ]

Subject matter
Authored by: Anonymous on Tuesday, October 12 2004 @ 11:57 PM EDT
So, what <b>subject matter</b> are you talking about here?

Don't come dragging about that it is some idea that gets patented, because with
that logic you end up with copyright on unwritten books (still left in the
brain). What is the subject matter of software, a method? Don't even try,
because then it is users of it that infringe, since it is the user hwo uses the
method on his initiative on his own machine, not the developer hwo merely
publishes it (what he does on his own as R&D is not of the pat.systems
concern), or do you want to make publishing into patentinfringiment?

You want to eat the cookie and still have it around? Impossible, you end up with
that unpatentable copyrighted works can constitute patentinfringiment, wich is
what we have today.

Software is just plain incompatible with patents, it is the wrong subject matter
(this is the reason to all the "apparatus" in SWP), there just can't
be any invention, no matter how innovative it may be. It is just written
instructions for a computer, an algorithm is just an abstraction, no matter how
intelligent it may be, just like words and language. The computer is allredy
invented, accept it, don't try to make the use of it into somebodys property!

Patents does not protect any developer since you cant write programs without
using earlier ideas, a developer just can't redevelop the hwole software
development since 20 year back.

What we need is to define industry to "production of material goods",
technical to controllable forces of nature, and that publication of information
in whater form never can constitue a patent infringiment.

This would put an end to the madness, and this is what the European parliament
voted for a year ago.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Wednesday, October 13 2004 @ 08:24 AM EDT
I completely agree that the patent system is broken and needs to be fixed. I
also agree that there are some patents that really are innovations that deserve
protection, and I agree with the author that the burden of monitoring should be
on the patent holder, and not the inadvertent violator. Perhaps the most
important aspect of the patent is 'use it or loose it'. But I am afraid that
most of the suggestions about how that should be enforce may be unworkable. I
believe that economics should be the weapon of choice to prevent abuse of
patents. The most powerful economic deterrent from abuse and force publicity is
money. I suggest that after 3 years of owning a patent the holder must escrow 1%
of the maximum claim against abusers. That is you can claim $100m against an
abuser if you escrow $1m. This would be a no-brainier for a company that makes
large amounts of money from its patent but onerous for someone who is holding a
speculative patent. The patent holder can withdraw the escrowed amount at any
time but would loose the ability to litigate.

[ Reply to This | # ]

Who made the PTO king?
Authored by: Anonymous on Wednesday, October 13 2004 @ 02:17 PM EDT
How can a few non-elected individuals simply decide to allow a new
variety of patents without public debate? Maybe their strategy is the
old one of "its better to just do it and say you're sorry later rather
than to ask permission." These changes are earth shaking but occurred
without public debate as incrementally more far reaching patents were
approved.

Software has traditionally been the domain of copyright and trade
secrets. Business practices have been outside of intellectual property
constraints. Perhaps the best countering strategy is to state the simple
truth that these non-elected individuals overstepped their authority,
screwed up in a very dangerous manner, and should be overruled.

However the patent wars play out, everyone will suffer until everyone
rues the day that the PTO was made king. Even those that today champion
pure software and business practice patents will suffer as the sinking
tide of society grounds even their boats. My only wish is that Congress had
not made the PTO king by abdicating.

Personally, I believe pure software cannot be made the subject of patent
because software is writing and because the ideas expressed are
mathematical algorithms. It is illogical to patent writings, especially
mathematical algorithms. It is an egregious confiscation of property to
tell the developers of software products that they and their customers
cannot use those products due to patents restricting their application.
For example, are you going to say the developers of C, C++, Java, and
Perl cannot do bubble sorts, or SQL databases cannot use table joins?

Also, I believe pure business practices cannot be made the subject of
patents because they are not laws of nature but rather human nature
expressed in formalized procedures. Business practices are inseparable
from the larger society it which they operate. For example, are you going
to patent using cars to deliver pizza or medications, or to taxi or bus
passengers? How would car companies react to that?

The real hot topic has been use of appropriate analogies. I have seen a
string of irrelevant models supporting as well as refuting software and
business patents. If no one can even frame a debate for these aberrations,
how can you refute the fact that the PTO has been made king?

[ Reply to This | # ]

I'm corn fused
Authored by: Anonymous on Wednesday, October 13 2004 @ 03:03 PM EDT
It's my (mis?)understanding that software patents became legal because a case was misinterpreted to read software as being patentable as long as it was part of a system that was being patented. My question is: How can anyone patent software that runs on an x86 processor without also being the owner of the x86 hardware technology? Say I want to patent my latest and greatest software porn search algorithm. Since my algorithm is written in software I must present my patent as part of a system in order for it to be what is currently accepted as legal. How can I claim the right to patent my software algorithm as part of a system that uses an x86 processor when I didn't invent the x86? I mean... I'm not able to patent the x86. It's not mine to patent. How can it be legal for me to claim a patent on a software algorithm that uses an x86 processor. I have to include the x86 as part of the patent or else it's not a system. If I were just to say "on any processor" then it wouldn't really be a system, it'd just be describing where the software was suppose to run... and that would invalidate the patent as the case that was misinterpreted allowed software to be patented as part of a system and not by itself. So I guess I just don't understand the reasoning that claims software is patentable... even given the explanation that it must be a part of a system. How can you claim a patent on software that is part of a system when the only part of the system that you have created is the software itself? Isn't it painfully obvious that a patent on software that runs on someone else' hardware is nothing more than a patent on the software and not the system?

[ Reply to This | # ]

I just realized something
Authored by: Anonymous on Thursday, October 14 2004 @ 04:29 PM EDT
I was reading a quote from U.S. Rep. Dana Rohrbacher about the difference
between regulating (say) commercial aviation vs. commercial astronautics.
"Regulation for proven technology is a way of ensuring public safety.
Regulation in a developmental area like commercial space is a means of
strangling enterprise." And it hit me: in IT, "proven
technology" is the stuff we're ripping out and replacing. *All of our
current technology is developmental.* That may be one of the things that make
ideas like patents so slippery in our arena. Comments?

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Thursday, October 14 2004 @ 06:52 PM EDT

>> If in fact patents aren't granted to algorithms, only
>> specific mechanisms with specific uses, then a patent on
>> a device that makes use of software wouldn't cover the
>> software used by the device.
>
> Yes and no. The software itself is not the subject of the
> patent, so yes it can be taken away from the device and
> used for other purposes without infringing. The algorithm
> itself is not the subject of the patent.


Now I am even more convinced that we are in complete agreement as regards the
non-patentability of software.


> However a manifestation of the software is part of the
> device. Lets take that ignition timer again. In the
> mechanical version the timing control is implemented in
> cogs and levers, say. If you were to look at it carefully,
> you'd be able to pull out the logic that drives the
> timing. That logic you could specify in various logic
> formalisms. You could specify it, in particular, as a bit
> of software (at the very least, as a simulation). That bit
> of software is your pure abstraction. It can be part of
> the patent application. The software is not the subject of
> the patent. I don't recally anyone claiming they received
> a patent on a schematic; they get a patent on the class of
> mechanisms the schematic defines.
>
> Nothing of consequence changes in the version controlled
> by a computer. Say, for simplicity, that your prototype
> engine timing system keeps the software on a CD which is
> then loaded into a programmable embedded computer. If you
> look very very closely at your system, you will not see
> any software, but you will see a pattern of pits on the
> CD. A motor drives the CD round and round and this pattern
> of bits is read and converted into a pattern of charges
> within the RAM of the computer. The computer then uses
> these charges to select actions to perform on other
> charges. In this way, the computation of the timing is
> performed and actuators are triggered to create the
> ignition firing pattern. This is a mechanism. It is not
> abstract, it is concrete. As a proof, if I picked up the
> machine and hit George Bush over the head with it I could
> successfully be sued for assault.


Yes and no. If the reading and interpretation of the pits on the CD is not
accomplished by means of instructions provided to a generic logic processor
(which is not generally the case; it's generally either code or microcode), then
you can say the whole thing is a concrete mechanism that therefore comments on
patentability with reference to the physical embodiment of software in media.

What makes the software abstract and what makes the software instructions, is
that since the pits are designed to be provided to a logic processor for
execution, they therefore *represent* abstract logic, regardless of the fact
that they are embodied in concrete form. It's no different from saying a
written mathematical formula embodied in ink on paper *represents* abstraction.
If there is a component of any sort in the device that acts as instructions for
a generic logic device, that component is software, and because of the nature of
the device (a *logic* device), that component *represents* pure logical
abstraction.

I was really implying all of this in my previous comment.


> I challenge you to
> accomplish the same feat with a pure abstraction.


Well, I did, at the metaphorical level at which you speak. :-) I can whack
Bush with a book, too! Or with a sheaf of papers with mathematical symbols on
them, too!


> The
> potential patent in question is on the pattern of pits on
> the CD in combination with the controlling machinery that
> produces the useful result of the carefully timed ignition
> firing.


Pits (in the usual case) that are instructions for a logic device, that
therefore are a *representation* of abstract logic.


> If a cog-and-lever version is patentable, this is
> too.


I think perhaps you will understand the distinction based on the above
explanation. Since it's likely that patent attorneys, and examiners who are
susceptible to their misunderstandings, will fail to consider what aspects of a
device are abstract logical instructions, the simplest, plainest, most practical
solution to the issue of software patents is to add a requirement to patent
applications, a requirement that basically recognizes the presence of generic
logic devices in the world today and in everybody's lives. This would be
basically to require that the application must include standard language stating
that either there are no abstract instructions designed to control a generic
logic device in this patent, or if there are, they are not covered by the
patent.

This is a simple, workable definition of software that completely does the job,
and a simple, workable legal solution to the confusions people have in this
area. It puts abstraction and logical algorithms exactly where they need to be,
and makes clear that software is not patentable in a way that means examiners
really no longer need to worry about the issue very much; and if mistakes are
made, then it also establishes that there is no preumption that code is covered.
It covers all possible concrete embodiments of logical instructions in a
completely appropriate way, even ones nobody notices, and provides the recourse
necessary for those cases, too.


> The software could be included as part of the patent
> application but it would not be the subject of the patent
> any more than the schematics are the subject of any
> patent.


You actually do get it. You seemed to walk very close to attempting to make the
fallacious argument that we hear from many pro-software-patent folks, but then
in the end, here you state exactly the right conclusion.


> Now if you take that software and somehow manage to use it
> for email sender authentication, then my understanding
> (IANAL, this is not to be construed as legal advice) is
> that this will not be upheld as a patent violation
> (assuming the claims for the patent do not include this
> use). Thus we are at the correct point: the software is
> not the subject of the patent, the mechanism which
> includes the software, however, is.


There are two things to say here. The first is about software patentability.
The second isn't really; it could start a new discussion in another direction,
but I won't elaborate here. Hopefully you'll see the distinction.

First, if the usage of the algorithm is not confined to the device by the
patent, as you say, then that's it. That perfectly clearly separates software
from patent coverage. Regardless of how you combine the software with other
circumstances.

Second, it would probably be a good idea as a matter of policy to stipulate that
it's not really innovative to simply automate a process by implementing it by
means of an algorithm directing a generic logic device to control other devices.
This stipulation would help clarify that if the device as a whole is patented,
the thing that's restricted isn't the use of the software for the purpose. This
doesn't actually relate to the key consideration of whether software should be
patentable and why not, though the EU Commission and Council want people to
think it does. If software contained in a patented device can be used freely
outside that device, then everything is perfectly sensible and well understood
and understandable. They don't accept that stipulation, however (as I explained
in my previous comment). And in fact, this is the key problem with the EU CII
Directive.

[ Reply to This | # ]

...anyone could have copied it...
Authored by: Anonymous on Thursday, October 14 2004 @ 07:40 PM EDT
"Once the product was on the market, anyone could have copied it."

I guess the argument goes, ... so if it couldn't be patented, the work would never have been done and the mass spectrometers would still be slow, or else the method would be kept secret forever.

This just doesn't hold water anymore. No important invention is going to exist as a secret without someone figuring out how it works, so the justification for patents as encouraging publication of methods is obsolete. Similarly, the work would be done anyway. It might be done several times at the competing Mass Spec manufacturers, or it might be done by grad students at a university. The people doing the research would get paid one way or another.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Friday, October 15 2004 @ 11:12 PM EDT
Amen, Craig!
I'm not sure about #6, though:
Was the RSA patent 'too long' at 17 years?
It seems the GIF patent was.
Perhaps primarily mathematical ones like encryption and compression could be
closer to the normal time span, than patents which apply only to computers (like
GIF)?

[ Reply to This | # ]

LOL RSA Patent
Authored by: Anonymous on Saturday, October 16 2004 @ 01:13 AM EDT

Gosh I do so love that RSA patent.

Just give it up. We want patents on software! We want them long or short, but
we want them. Gimme gimme gimme . . .

If it's innovative, patent it! Let's patent anything for that matter, just so
long as it's a solution to an age-old problem.

Yeah. That's right. That's it. That's the solution. Why can't people see?
It makes me so sad, it does. It *hurts* me that people just *don't
understand.*

Whimper. Sob.

Sniff.

[ Reply to This | # ]

Patents - An Alternative View
Authored by: Anonymous on Tuesday, October 19 2004 @ 04:37 PM EDT
Yes but this cannot be a plagiarism of the original. It can be a non-literal
plagiarism as well. Copyright is plenty broad enough for the code without the
endless scope of a patent claim.

[ Reply to This | # ]

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