What is Digg?134 Comments
- nickerbocker, on 02/28/2008, -5/+103Patenting software never really made sense to begin with. It's like patenting a math formula.
- yardape6, on 02/28/2008, -2/+63Software is already covered by copyright. There is no need for software patents. It would be like a person discovering a new plot type for books and then saying anyone who writes a story like mine needs to pay me. Just like I can't copy word for word any book, it is against the law for me to copy line be line someone's code to form the exact same program. Imagine if authors could get patents on sentences and no one else could use them. It would paralyze and industry fairly quickly. The same goes for software patents. We are limiting the things people can do every day while other countries ignore those patents and continue to innovate.
DOWN WITH SOFTWARE PATENTS! - ffingers, on 02/28/2008, -17/+45As a patent attorney, I find things like this disheartening. I wrote and had a paper published during law school that addresses this myth behind software patents and how they are fundamentally understood by most people who complain about them. Yes, some software patents are junk. Yes, some of them should have never been granted, but that is where the problem lies. It lies with the USPTO, not software patents themselves.
How many of you who are so adamantly against software patents know the history of their development. From the landmark Arrhythmia case to State Street Bank. You can't patent an algorithm. That still stands as is cited in Office Actions all the time. In fact, almost every software patent I have encountered gets a Section 101 rejection for non-patentable subject matter because it wasn't drafted correctly. If the application is drafted correctly and is examined correctly, a multitude of problems alleged by all these groups would be cured. However, people want blanket solutions like abolishing software patents.
Software is an invention like any other. Would you say circuit patents should be abolished. I mean logically speaking, they are merely a design of well known elements to create something new. Just like software, it's code arranged into something new. I was a programmer, I can understand people's distaste, but it's not for the right reasons. The issue is with the examination process, not software patents. That is what needs to be addressed.
I hope you don't digg me down and you consider what I am saying. If you would like me to clarify things, I will. Just let me know. I am not attempting to be confrontational, but rather hope that some people will see passed the propaganda and look at the real issues rather than opting for a blanket solution . - sublimer, on 02/28/2008, -3/+30just imagine where we would be if simple formulas like c^2 = a^2 + b^2 had patents!
- dude187, on 02/28/2008, -4/+23Software patents are ridiculous. Your claim is that software patents should be valid because some ideas in software are non obvious. Well point to one other example of patents where you are able to patent an IDEA (and not the other type of invalid patents, business model patents). Patents are designed to protect an _invention_ and improvements to other inventions, with the requirement of having to disclosed exactly how the invention works. Software patents require _no_ code and it is impossible to implement the idea patented with just the patent itself (if the idea truly is non obvious that is). Ideas are a dime a dozen and we're doing no good granting people exclusive rights on an idea. That is against everything patents are designed to encourage, the progress of science and technology.
Imagine if the idea of computers exchanging messages broken into small packets and being transported over a self adjusting network of wires had been patented before ARPANET came to be. We wouldn't be talking here on Digg if the person who patented that didn't know how to implement the idea. - lanchon, on 02/28/2008, -4/+22Unfortunately sense went out the window a long time ago. It's not about making sense but making money, it's about ripping you off little by little, and as much as you can take it. If you expect sense from the executive, legislative or judicial branches I'm afraid you'll be chronically disappointed and frustrated.
- cmister, on 02/28/2008, -1/+15Fortune coverage
http://legalpad.blogs.fortune.cnn.com/2008/02/28/e ...
In any case, even if End Software Patents’ goals are extreme, they are not far-fetched. The U.S. Supreme Court has never ruled on the patentability of software, and at one time the predominant assumption among lawyers was that it could not be, because it amounted to nothing more than mathematical algorithms, which, in turn, were considered nonpatentable “laws of nature.”
That assumption was gradually turned upside down through a series of decisions rendered in the 1990s by the U.S. Court of Appeals for the Federal Circuit, a specialized court that had been set up to handle patent appeals, among other things, in 1984. Those decisions suggested that even if pure software itself was not patentable, software when loaded onto a general-purpose computer created, in effect, a new physical device that could then be patented. Some of the same rulings that opened the door to software patents effectively opened the door to “business method” patents, too.
In the past two years, however, it has become clear to all that the U.S. Supreme Court is extremely unhappy with the patent environment that the Federal Circuit has fostered in the two decades since its creation. In eBay v. MercExchange (May 2006), the Court unanimously junked one longstanding rule of that court, and last term, in KSR International v. Teleflex (April 2007), it unceremoniously dispatched another. (In eBay, the Supreme Court ruled that judges need not always enjoin defendants from infringing, even after a patent-holder has proven its case, and in KSR it made it much easier for judges and patent examiners to invalidate patents due to obviousness.)
For Klemens, however, the most encouraging ruling for his agenda was one that, technically, wasn’t. In LabCorp v. Metabolite Laboratories (June 2006), the Supreme Court had been asked to review the Federal Circuit’s precedents on patentability – the issue that ultimately also determines whether software patents and business-method patents are permissible. After hearing oral argument, the Court punted, deciding that, for technical reasons, it never should have heard the case in the first place. But three justices dissented, writing that they would have overturned the Federal Circuit and invalidated the patent in question, because it clearly amounted to an attempt to patent a nonpatentable “natural phenomenon,” though the phenomenon had been recast in the patent application as a patentable “process.” For that opinion, see here. Klemens contends that software patents amount to much the same thing.
Though only three justices signed the dissent, it does appear that it, in combination with the Supreme Court’s back-of-the-hand treatment of other key Federal Circuit precedents, has led the patent appeals court to engage in some soul-searching. Just two weeks ago, it announced, without having been spurred to do so by the parties, that it would rehear an important patentability case, In re Bilski. (See generally here.) It even asked the parties to brief whether a key ruling it rendered in 1998, State Street Bank & Trust v. Financial Signature Group – one of the pivotal ones greenlighting software and business-method patents — was correctly decided.
“There are test cases all over the place,” observes Klemens. Plainly, his timing is propitious. - ffingers, on 02/28/2008, -7/+19Yep you got me! You are one of those people that can't quite understand how the patent system work. Most people don't. I don't take it personal. It's confusing and frustrating. You do know that patents is one of the things that allowed the US to separate itself from British dependency? No, look it up. Listen, I know what I am saying isn't popular. You can assume it's because I am a lawyer. I prefaced what I said in support of full disclosure. The point is, software is a viable, patentable invention so long as it is regulated and dealt with accordingly. It's a different beast than anything being patented currently. But that doesn't mean it should be abolished. It just needs its own standards and processes.
And I don't understand software. Sure, you can tell yourself that. When you file an application for a software patent, you aren't patenting the formula, you are patenting the method by which to do it which is why software patents and business method patents were tied for a long time. And back to my circuit analogy, a resistor is nothing more than a material to cause a resistance, yet you come up with an inventive way to set those up, you could get a patent. All the resistors do is affect current, just like the algorithms affect the computer. Why can you patent the arrangement of one into a novel invention, but not the other? - HonoredMule, on 02/28/2008, -0/+11The problem lies in the lack of alternatives. If software can be patented, then essentially, competitors are not allowed to write software to do similar work at ALL (because the formula is typically THE straightforward path from one set of input to one set of output, and most of what we do starts with the same input. If you patent a (the) method of decoding DVDs then no one who's not your customer will be able to legally decode DVDs. There IS no other method...the format itself is defined (albeit subtly) by the steps to compose and decompose it from raw data. My DVD decoder can't differentiate itself by using different chemical reactions or compounds. Logic isn't flexible that way.
Software patents don't patent methods, they patent ideas. Anyone who works around them does so by introducing extraneous steps just so that they can differentiate their a->delta->b method from the patented a->b method, and still treads treacherous legal ground, because the delta is more like a detour than a fundamental difference in the process. - CoolWind, on 02/28/2008, -1/+11The benefits of invalidating software patents would seem to greatly outweigh the disadvantages. Years and years of patent abuse have lead many of us to feel that software should not be patentable, regardless of how original or creative it may be.
- CoolWind, on 02/28/2008, -0/+10You believe some software should be patentable. I don't. Please explain how software patents are beneficial to society.
- dude187, on 02/28/2008, -1/+11Your calling both types of patents fundamentally the same, while they are in no way similar. I can construct a physical working circuit by closely following the patent application that details the actual implementation of the circuit.
With software patents you cannot implement their "invention" from the patent alone. The patent describes what they want to implement and the very high level representation of how some of it works (the parts being patented), but in no way patents a specific implementation. That means that anybody who implements an idea similar to the one patented in any implementation they choose can be hassled by big_company_x's large patent lawyer team. Software is sort of a blackbox once it is compiled, and judges have no idea about the process generally. What this boils down to is whoever has the most money can patent the most ideas and simply milk money out of the people who do the most work. Take a look around at the big players who are being milked by the patent troll companies as we speak.
Something is seriously wrong and the ostrich algorithm (sticking your head in the sand) is not the solution. - oldhick, on 02/28/2008, -5/+14I like your circuit board analogy. You put together some thoughtful points that I shall consider.
- JMSantos, on 02/28/2008, -0/+8Luckily, I could just use the law of cosines! a^2 + b^2 = c^2 - 2ab(cos C)
- ffingers, on 02/28/2008, -6/+14Stop alleging I don't understand software. I used to program, I have a computer engineering degree and have programmed in a plethora of languages. These arguments are baseless. Attacking my credibility does nothing to further your argument. Back to my circuit analogy, anyone can learn how to arrange a bunch of resistors, all that have to do is learn.
- mtekk, on 02/28/2008, -0/+8We already have copyright for software, and many of the software patents I've seen do deal with more or less just an algorithm. They seem unnecessarily redundant for software. Additionally, in the software world, a patent lasts an eternity (15 years ago we were running windows 3.1). Software patents could be fixed if 1) the USPTO would actually do it's job and do better research for prior art in software patents (happens all the time) and if it would stop granting trivial patents 2) if the time duration was decreased to a default length of 5 years, with optional extension of 3 additional years.
- Haapi, on 02/28/2008, -1/+9Copyright does that for you.
- HonoredMule, on 02/28/2008, -0/+7...or to put it much more simply, would you patent a book? That's what copyright is for...the protection of an idea's manifestation. And software is fundamentally and clearly EXACTLY that: the manifestation of an idea in fully-thought-out form (just like a book).
- dude187, on 02/28/2008, -0/+7The question isn't about whether or not software is a new creation, obviously it is. The question is whether or not allowing patents on it really helps anyone or not.
With the fast paced world that is software development, a software patent only harms things if it lasts more than 3-4 years. Furthermore with no pseudo code being disclosed or at least VERY detailed flowcharts of how _exactly_ to write a program that does what the patent outlines you are still just patenting an idea.
It doesn't matter thou, even if you needed to disclose very detailed pseudo code I believe patents on software is still a bad idea, especially considering 99% of the real innovation in computing happened before software patents or goes unpatented (web 2.0 stuff). - jrizzo, on 02/28/2008, -1/+7Ya, I think patents and intellectual property are junk as a whole. I think you should get paid for something you can do or make that someone else can't do/make as well as you.
Just because you think of something first does not mean that you get to sue people who think of it too. That is just childish. - sporg, on 02/28/2008, -0/+6Patented or not its all up for grabs via bit torrent.
- Fernandou, on 02/28/2008, -2/+7We have to bring the League for Programming Freedom back!
- ffingers, on 02/28/2008, -2/+7Alright this is my last response as I can't respond to everyone, although I have tried thus far. I agree they aren't the same, currently. But they are more alike than you think. For example, a diode and a short FET are functionally the same. If you disclosed a diode, you wouldn't be able to get a patent and would likely be found infringing if all you did was use a shorted FET. Patents are constructed to one exact form but are constructed to be as broad as possible. Should the broadness include any possible way to do the same thing, no. But if it's substantially similar, then yeah. In my opinion, so long as the patentable part is explained such that it is very apparent as to what to do, even if it's using well known techniques, but in a new way, it's fine. It's only when broad generalizations are allowed, which once again...should be caught BY the USPTO. If doing a certain thing is so well-known, it should be no issue to find prior art. If your the first person to optimize a set of code by using a specific implementation of a memory stack, why shouldn't you be able to market that? That is the economic way, that has nothing to do with patents.
- turbosatan, on 02/28/2008, -4/+9if this goes through half of america will fall over :-)
- jrizzo, on 02/28/2008, -1/+6I second that.
- harlowsmonkeys, on 02/28/2008, -2/+7Can't you say the same thing about ALL patents? E.g., patenting drugs doesn't make sense--it is like patenting a chemical formula. Patenting a mechanical device doesn't make sense--it is like patenting physical laws.
- CoolWind, on 02/28/2008, -0/+5Software patents should not be fixed or improved, they should be abolished. They are not having a positive effect on society.
- Hellothere123, on 02/28/2008, -2/+6It's all 0s and 1s being manipulated through the "Arithmetic" Logic Unit.
- HonoredMule, on 02/28/2008, -0/+4And how do you propose to deal with the many inappropriate patents that already stifle innovation if not by abolishing them? The damage they are actively causing right now is substantially worse than a reversion to "stone age" would be. Really, the early days for software were awesome, with explosive idea-growth due to the free, unfettered exchange of information. That was the dream that corporate selfishness (largely empowered by software patents) destroyed.
Profitability is an important part of our social model, not an objective pre-eminent above the welfare of society itself. - warsql, on 02/28/2008, -0/+4Examples?
- FreeDeb, on 02/28/2008, -0/+4apc3161 -- The use of the words "writings" and "authors" is sort of misleading in that instance. Literary works and visual art are covered by copyright law, not patent law.
Until fairly recently, it was understood that neither thoughts nor math ought to be subject to patent law. - dude187, on 02/28/2008, -0/+4You can market that, but patenting it only harms everyone. You can write the software, and release a download for it _today_. Patents are originally an idea of a time where it took a long time for an invention to be realized. With software it can be realized as soon as it is tested. Making your software faster is enough motivation to write the code. Giving exclusive rights to that company or person on the _idea_ used to make that code faster helps nobody in the case of software.
To summarize my point: patents are designed to bring the money to the innovators. In the case of software patents the money flows to the innovators anyways, the patent is only used to squash competition. - LeeSoong, on 02/29/2008, -0/+4I thought Microsoft patented all the 1's and 0's ?
http://www.theonion.com/content/node/29130 - CapnDeviance, on 02/28/2008, -0/+4I too would like to free the walruses.
- jasonsalas, on 02/28/2008, -0/+4I'm for it, but this is one of those ideas that's great in its idealist concept, but realistically is never going to pan out.
- ffingers, on 02/28/2008, -0/+4mtekk...you are ABSOLUTELY RIGHT...number 1 is the prime problem....and that needs to be corrected. My paper suggested an independent tribunal to review software patents and submit prior art to the examiner for his review because a single examiner does not have the ability or scope of knowledge to adequately find the needed prior art. You create a tribunal of open source developers, private developers, corps, etc. and they will find the prior art because they have a vested interest in not letting a frivolous patent being granted and stifling them later. If they can't find prior art, obviously it would be new and novel enough to deserve protection.
- CoolWind, on 02/28/2008, -0/+4I hate to digg down a well articulated thought, but it's the best way to express my disagreement, in a thread of this type.
- Jumper199, on 02/28/2008, -0/+4I do not claim to know much about law but as a programmer I have never seen software as an invention but rather closer to that of a book. To me software should be listed under Copyright Law rather then Patent Law. Granted like most law there seems to be a rather large grey area. But mainly my issue has always been that software doesn't really exist in the way a circuit board exists which is the wonderful world of grey. Anyway ive always like the idea of software being intellectual property falling under Copyright Law.
But I do not know much about software Patents except for people complain about them a lot. So maybe wiping is a good idea or reform, hopefully the experts know but they tend to fail at a lot of things so who knows. - cryptoki, on 02/28/2008, -0/+3Great.. patent your software then... but dont write 1000 algorythms with no real product dev, just waiting to pounce on a big company (waiting for the big legal payout) that never saw your code to begin with (aka - didnt steal your code).
Auto manufacturers rarely (engine wise) get into disputes over this type of thing (vs software industry) - HonoredMule, on 02/28/2008, -0/+3In that case, let me introduce you to patent h-325: Method of curing cancer by injecting chemicals into the cancerous region of the body by means of a syringe.
Now we'll later decide this was a bad idea for society, but as long as drug patents aren't abolished altogether, my profit will be protected by an insurmountable volume of unfair patents just like mine, extra-patiently awaiting review. - apc3161, on 02/28/2008, -0/+3What can I do? You're free to disagree. =)
- DestroyFascism, on 02/29/2008, -0/+3As A patent attorney you can have lots of reasons to keep them for software, one being the work load and income you receive. Now I should be less sinical but you have a definitive interest in them do you not? Patents on a fridge motor help people improve on what was. patents on software restrict all that could be. Copyright is enough and more than enough to prevent theft of an "idea or concept" so long as it exists! Sadly patents for software exist even though the code was never written, has ever been been or ever will be written! This is a crime against the spirit of art itself. To argue that patenting an "idea" that does not exist and when it does, prevents the improvement of the concept rather than promoting it is a sham and you are the one making the dollars standing in court arguing for it to continue.
- srg13, on 02/29/2008, -0/+3So, you think that I should need to pay a license to IP Innovation if I code a tabbed window (or "User Interface with Multiple Workspaces for Sharing Display System Objects" )?
- pantuky, on 02/28/2008, -1/+4Hell YEAH! Get rid of software patents outright. Since the dawn of time the law has said you can patent an implementation, you cannot patent a concept. Software patents constitute ownership of a concept, not ownership of code implementations.
- javaroast, on 02/29/2008, -0/+3One could argue that that the beginnings of the American economy were built on a laissez-faire attitude towards intellectual property... specifically to ideas that were created outside the US. As you said look it up. You are proposing better standards and processes to fix the current mess.... but I don't see any specifics, just some vague arguments in support of software patents. There is no denying that the current state of affairs is out of hand. Patents are being granted for murky ideas for the sole purpose of stifling innovation and locking out competition. The patent laws that were designed to help the little guy are now becoming a barrier to the little guy. Until I see a specific plan to fix the patent system in regards to software, I'm for writing it off as a 20 year experiment that didn't work out. Software is already protected under copyright laws and that's plenty enough. You can't patent a novel and I believe that software falls closer to a book than an invention.
- kd1s, on 02/29/2008, -0/+2Then maybe we'll see the stupid Verizon vs. Vonage thing disappear. It appalls me anyhow being that Verizon's "patents' were nothing but prettied up RFC's.
- srg13, on 02/29/2008, -1/+3Because the system is massively abused - there are software patents akin to patenting a 'method for moving one or mode people over a distance'. Clearly developers aren't happy with the system, just as car makers etc. wouldn't be happy if people could patent things like my example above.
- l800LEMMINGS, on 02/29/2008, -0/+2it's about time I'm sick of frivolous lawsuits made over base ideas like the microsoft's double click or apples new patent pinch *****
- HonoredMule, on 02/28/2008, -1/+3That doesn't do jack for our freedom to understand and modify the software that directs MY computer.
- mtekk, on 02/28/2008, -0/+2I'm not sure if a tribunal would be an end all solution as even though the other members may have a vested interest in finding prior art, what happens if enough members in the group form pacts and gang up on everyone else. We've seen Microsoft do shady things with the ISO in trying to get their ***** Office XML format ratified as an ISO standard, letting them have any more power is not wise yet excluding them from such a panel would present problems of fairness. Though I doubt that in the worst case scenario that this would be worse than what we have today where Microsoft can file a frivolous patent and some naive (or possibly corrupted) patent clerk reads it and approves it.
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