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| Authored by: Anonymous on Thursday, October 11 2012 @ 12:37 AM EDT |
Hi PJ.
1)
No, I am not a US citizen or resident. However, I work for a US-based company, I
use US-designed products. I feel that laws passed in the US have an inordinate
amount of effect on the rest of the world, given how central it is to the global
strategies of many companies and how my country so often reflects the market
laws of the US.
For example, if it is determined that a feature on a product infringes upon a
patent granted in the US and the infringing feature is removed, it is highly
likely that when the product becomes available in my country it will also lack
the infringing feature.
It is the trickle-down effect like this that makes me concerned about US laws.
2)
Any solution to the perceived software patent problem should not be an
all-or-nothing approach. To do so would be to say that a software engineer's
inventions are not worth as much as a mechanical engineer's; that they somehow
require less inventiveness. But as we should all know, software can be useful,
novel and non-obvious. There are significant useful software inventions which
improve everyday life for so many people, that denying patent-ability seems a
huge injustice.
However, there have been numerous patents granted which for various reasons I
think are 'bad'. This could be because they are vague, obvious, derivative, or
non-inventive. Many SW patents are so vague that I can't understand what they do
upon reading them, let alone implement the solution as described; they also
cover a hugely broad area, in the only possible sensible way. There should be
stricter standards for having a sw patent granted, and less strict standards for
having a sw patent invalidated. A patent should not be able to cover the entire
problem/solution space in such a way that a work-around is not possible.
One thing that I have been thinking about is the definition of obviousness. How
obvious is the solution, when you consider the problem?
For example: if I pose (a person with ordinary skill in the art) the problem
"Invent a cure for HIV". Can you do it? How long would it take? I
would hazard that the solution is not obvious.
If I pose (a person with ordinary skill in the art) the problem "Invent a
program that lets me call a phone number by selecting the text" (terrible
paraphrase of Apple's data tapping patent), a solution (at least as far as it is
described in that patent) is obvious. Two teams may come up with different
solutions, but by necessity there will be overlap; and as such, the truly
necessary parts should not be protected. If a work-around is incredibly easy,
should the patent be granted in the first place?
It is difficult for a number of reasons. Is the realisation that there is a
problem in need of a solution the real innovation? How do you phrase the
question so that the answer is not apparent? How do you determine which parts of
any solution are necessary? How do you allow work-arounds without making the
patent useless? I don't have the answers; I'm only an engineer with an interest
in patent law, not a lawyer. But someone out there who is brighter than me
might.
There are also psychological issues. A lot of engineers I know simply don't
believe in patents and don't apply for any. Some do the work, come up with
something useful, and don't bother to patent it, because they think it is
obvious or derivative. So much of software development is iterative that it is
hard to say whether you improved or innovated. Thus examples of 'swipe to
unlock' have appeared in phones before iPhone but not been patented. Are the
inventions created during the normal course of business - after all, the
business of software development is to build new software that hasn't been built
before.
I think it is perfectly possible to allow some software patents: you just need
to have the right team of people and the right checks in place to ensure that
only the best, most inventive, most difficult, most useful ones get through. But
to me, denying any kind of software patent is akin to saying that there is no
intellectual investment at all, no innovation, and that seems wrong.
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