There are (at least) three valid perspectives on the patent situation within the software community but part of the reason so little constructive progress is made is that many people with strong opinions will often flat-out deny or reject the validity of the other perspectives because it is outside their experience.
Three perspectives of which most people ignore one or more:
- Computer technology is over-run with frivolous, vague, stupid, conflicting, and contradictory patents. Any pretense of quality control by the USPTO was lost in the 1990s. This imposes a non-trivial cost on the entire ecosystem and a complete absence of quality control is arguably worse than no patents at all.
- R&D into new computer algorithms is a non-trivial investment, frequently requiring years and millions of dollars. There is a tendency among programmers to discount the level of effort required to develop a new computer algorithm that materially extends the state-of-the-art even though most could not develop such algorithms themselves and have never been involved in such R&D. Organizations that make this investment do so looking for a return.
- Academia is already facing difficulties in computer science because much of the state-of-the-art research is being done by private companies. Much of this research is being treated as trade secrets because (ironically) patents offer flimsy practical protection. As a consequence, there are a number of areas in computer science where the leading academic papers are literally a good half decade behind the state-of-the-art that is buried in NDAs. Lack of publication means that a lot of smart people are wasting time duplicating work. Patents were originally invented precisely to avoid this outcome. One of the reasons that I stopped reading academic computer science in some areas that interest me is that I see computer science under NDA that is much more sophisticated, which is a shame.
Any practical policy will need to take into consideration all of these perspectives. It is not as convenient and simple as "all software patents are evil!" or "software patents FTW!" but it more closely reflects the real tradeoffs.
>R&D into new computer algorithms is a non-trivial investment, frequently requiring years and millions of dollars. There is a tendency among programmers to discount the level of effort required to develop a new computer algorithm that materially extends the state-of-the-art even though most could not develop such algorithms themselves and have never been involved in such R&D. Organizations that make this investment do so looking for a return.
I don't think critics of software patents are in the practice of claiming that software R&D is always quick or inexpensive. Rather, the claim is that the patent system is demonstrably incapable of improving that situation, and in the meantime has spawned enormously wasteful multi-billion dollar litigation between otherwise upstanding major companies and struck fear into the hearts of small developers who can no longer produce a successful innovative product without risking a shakedown by despicable parasites.
Companies expecting a return have numerous other, less innovation-damaging alternatives to software patents. First to market advantage, copyright and trade secrets cover the field pretty well on their own, and no one can accuse any of those things of causing the average software entrepreneur to lose sleep over the prospect of totally unpredictable ruinous litigation.
>Academia is already facing difficulties in computer science because much of the state-of-the-art research is being done by private companies...As a consequence, there are a number of areas in computer science where the leading academic papers are literally a good half decade behind the state-of-the-art that is buried in NDAs.
Can you elaborate on which areas of CS academia you think are more sophisticated in the corporate wilds? Other than systems work at Google, I haven't encountered any subtopics which aren't dominated by ideas from traditional research centers (either university labs or academic research units at MSR, IBM, etc...)
> R&D into new computer algorithms is a non-trivial investment, frequently requiring years and millions of dollars.
There is a strong opinion among computer researchers that pure algorithms are indistinguishable from math, and thus should be unpatentable. The math guy doing research on sound waves might be slightly annoyed when he gets denied a patent, but the guy working "on a computer" with the exact same math, doing the exact same research, gets a patent because he described the math "on a computer".
Of course, we could just start letting math also be patentable, because it too requires non-trivial investment, frequently requiring many many years and millions of dollars. That is, if the work behind something alone is enough to qualify for patentability.
I'm interested in a reply to iskander's question as well as some concrete examples of new "computer algorithms... frequently requiring years and millions of dollars".
I don't disagree with your premise per-say, but, I do think its pretty easy for me, personally, to dismiss some of these positions wholesale.
1) I agree with
2) Computer technology moves at such a breakneck pace and is generally so hard to reverse engineer that this point doesn't hold water for me. We know that google's search algorithm works, ok, but can we reverse engineer it from the outside? The answer seems to be no, so why protect it with patents? Even if we could, by the time we were done google would already be on to the 'next big improvement', there is no catching up in software short of a drastic stumbling in the incombent, should we really protect the incombant from messing up?
3) The entire concept of going to college for software related endeavors is in such peril straits that I don't think we should even consider the affects or impacts of academia on software development, it's well in past at this point regardless of the patent situation.
It takes time and paying people so they can focus on solving hard problems for real innovation to happen. And its sad when it then has to become proprietary so that the operation can protect having any ROI
sharing is caring, and if that means you can have some revenue still, great!
"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." -- John Carmack
The idea that I can be presented with a problem, hire a dozen experts and spend millions of dollars coming up with a solution to the problem, and have someone come along and just copy the solution and use it in their own product to compete with me is horrifying.
Groklaw's editorializing has gone way downhill since the SCO days. E.g.
"I know the USPTO doesn't want to hear that software and patents totally need to get a divorce, but since most software developers believe that, maybe somebody should at least mention it to them, if only as a future topic for discussion. Most developers I know believe software is unpatentable subject matter."
Ask software developers who work in defense, aerospace, medical devices, telecommunications, video/audio processing, and other capital-intensive, R&D-intensive fields. I think you'll get a rather different answer. Indeed, as Google is finding out with the Motorola acquisition and the resulting patent situation, software engineering culture is far from uniform on this issue. The guys who write software that implements radio waveforms don't have the same views on patents as the guys who write software to optimize ad display, or for that matter the guys who write the search engines. Ironically, Google's PageRank is the subject of several patents, and Stanford's interest in the IP netted them $335 million in Google shares when they exclusively licensed it back to Google.
Although, I think this sort of round-table is a pretty good forum for figuring out more about the consensus view of software engineers...
Ask software developers who work in defense, aerospace, medical devices, telecommunications, video/audio processing, and other capital-intensive, R&D-intensive fields.
I've worked in several of those fields, and I have yet to meet these proponents of software patents you're talking about. Any advantage to having a patent on the results of your own R&D seems to be far outweighed by the persistent threat of being sued (with or without any actual merit) by someone else who claims you're infringing on the results of their R&D.
If something was useful enough and available enough for multiple parties to invent/discover/exploit it independently, it should be self-evident that patents are not a necessary incentive for that work to take place and can only be a barrier to further innovation for all-but-one of the inventing/discovering parties. This effect is magnified many times over if the patent is not for a specific piece of software but rather for something like a data format or communications mechanism. There is a reason you can't copyright the shape of a font in the US, and I think analogous arguments apply in these cases.
Fortunately, this is less of a problem for us here in the UK where the culture is not as litigious as in the US. Still, if nothing else, the repeated attempts by the US to export its onerous IP regime are a worry for small businesses here that using technologies potentially affected by software patents granted in other jurisdictions. The whole system is just one big barrier to competition for smaller organisations who can't play political/legal games to negate the whole technical issue as the big players do.
There will always be some who want to keep a broken system around if they can earn revenue from it. If money can be extracted, you can never get an complete 100% unanimous vote in fixing the system.
For people who owns land, some do not like regulations that forbid dumping toxins into it. But most societies know that forbidding the dumping of toxins are preferable over allowing it because of the ecological damage the toxins causes to society.
Patents causes an ecological damage to the software community. It might be profitable for a few, but for society as a whole it is a net loss. So long the cost-benefit analyze shows that, patents should have no place in software. Considering that patents are granted monopolies given by the government and enforced by the state, if society can't get more from software patents than it cost, society should not be in the businesses of granting said patents.
I have worked in defense. Getting a patent was like "Oooh, that's cool". Finding out if there were patents in the way to do anything was weeks of supporting legal's searches.
I'm sure someone, somewhere, at some level, likes patents. I don't think it's engineers though.
Ask them if they'd be OK with a patent that simply read "using a computer to transmit a radio wave" and see if they'd get behind trolls suing every texi-cab company that uses a dispatch radio tuned by a PLL and a microcontroller.
That might help them understand where this is headed (and already arrived in many cases).
They want to patent that brilliant little algo they spent months on to eek out that seemingly impossible spread spectrum noise piercing scheme that they finally got working. That's not how it happens at the patent office these days. Worse still, after all those months of creating something genuinely usefull, they're likely to be sued by someone who's never touched a radio, or made a product, and has a patent that reads more like "walky-talkies with teh interwebs inside".
> Ironically, Google's PageRank is the subject of several patents, and Stanford's interest in the IP netted them $335 million in Google shares when they exclusively licensed it back to Google.
That's not irony, as "should not be patentable" and "is patentable" are not mutually exclusive (I've also never heard of anyone being sued over the many, many pagerank-like implementations out there, so really the only thing going on there is University patent policies).
"should not be patentable" and "is patentable" is actually a large part of the problem, because you have to engage in the game to not be sued out of existence, but in doing so, you're making the environment even more toxic.
I always like to quote the Gosling story:
"In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry[1] wasn't nearly the goofiest."
You make market incentives to get companies to patent everything they can. Companies incentivize engineers to patent everything they can. Patent lawyers rewrite the software patent applications to take what is already an abstract set of instructions and turn it into the platonic form of that idea, to make sure they cover all implementations of that idea. The patent office accepts it after 7 resubmissions. You're not going to end up with a good result.
> The guys who write software that implements radio waveforms don't have the same views on patents as the guys who write software to optimize ad display
Can you elaborate?
It seems bizarre to me that formulas can not be patented, but telling a general-purpose computer to execute that formula, can.
I'm sure some engineers like patents. It makes them feel important, it's something to show to their bosses (and parents) and keep a score for promotion purposes.
Managers also like patents to schmooze their bosses.
"See, I did a patent, that's like, very important"
Meanwhile the lawyers say "yeah, sure" while collecting heavy fees.
And 90% of R&D is on the finished products (incl. code/blueprints) not on the "invention".
A large problem with software patents is that feature definition and implementation have been rolled into one. Patents were designed to protect implementation - that is, you can't patent having an engine in the car, but you can patent a specific design (implementation) of an engine. In the software world I feel like that distinction has been blurred.
Even if we assume that software is patentable, the bounce back effect should not be patentable. The reason is that all the novelty is in coming up with the feature itself. I don't know whether I could come up with the bounce back effect by myself. I know for a fact that I could implement it, and so could any sufficiently strong software engineer. There is no novelty in the implementation that is worthy of patent protection.
This is trade dress all over again hiding under a different name. It should be given a different status (just like business patents), and different time frames of protection. This way we still protect truly novel research in algorithms (pagerank for example), while eliminating 95% of the patents we as software engineers find so objectionable.
The reason is that all the novelty is in coming up with the feature itself.
This is a very good point. Often times knowing the feature you need to implement is the really hard thing. Once you've decided on that, it's trivial to implement, even if you're the first to do it.
This a thousand times. It totally makes sense that you should be able to copyright code. If someone uses your exact code without permission, you can ask them to pay you.
But deciding which ideas are non-obvious is clearly something the USPTO isn't capable of, and so they should just get out of it.
When I was younger and far more innocent I would do things because of the sheer love of doing, learning and discovery. I'd spend hours, no, days, wiring chips together, writing code, testing, soldering, dreaming, inventing. In college I even published a paper on some work I did in robotics when pushed my my prof's to publish. It was great. I'd like to think I "invented" a few things in the process too.
Then I was "born" into the real world: One where companies who do nothing (and some who do something) have patents for stuff I had been doing for ages. You know, stuff like using pulse-width-modulation to control LED intensity (ye'old Color Kinetics), clicking buttons (multiple companies) or putting a spring in series with a microprocessor-controlled motor to control force (MIT, series-elastic actuator).
That's when I realized that what I had been "sold" about engineering, entrepreneurship and research and invention was a huge pile of bullshit. The realization was that government incompetence in perhaps one of the most important human fields of endeavor --invention-- has all but ruined what I loved to do before this epiphany.
Now you had to study Sun Tzu. Now, without your own bullshit patent to act as a shield, you had live in fear of being sued for daring to make a screen area clickable or drag-able, attach a spring to a motor, dim an LED with PWM or the myriad of "obvious to someone skilled in the art" things that are patented. Or you had to hire lawyers to ride shotgun on everything you might want embark on.
The alternative is what most of us actually have to do: We use the tools we know and what we learned to create things and explore ideas. Unless you operate at Google/Apple/Samsung scale you have no choice but to stick your head in the sand and hope that someone doesn't come after you because you app sends an email (or whatever).
I don't know what the solution might be. I have done my share of heavy-duty hardware-intensive R&D spanning years. I get it. Sometimes the difference between something flying and not is found in a seemingly minor detail. The wheel was obvious to the second guy who so it, right?
At the same time, I think it is beyond-obvious to most in tech that the US Patent Office has done a dismal job of filtering that which is "obvious to someone skilled in the art" from true invention. I am not going to draw the demarcation line myself, the subject is too complex and each discipline has it's own boundaries.
That said, if you have ever invested any time in the process of patent search I would be surprised if you did not share my sentiment: the vast majority of patents I have seen should never have been issued.
I fully expect lawyer types to say something akin to: "You have to read the claims carefully. The differences can be subtle but important". I've heard this before. My answer has always been the same: As an engineer I don't have to dive into intricate lawyer-ese to know bullshit when I see it. A spring attached to a motor to control force, you know, "F=kx", is way beyond obvious to anyone who took first-semester Physics. Yet, you lawyers manage to craft convoluted language that takes "F=kx" in the form of a motor and a spring and turns it into a patent that I now have to worry about if I do robotics (which I have done in the past).
Perhaps one of the problems is that the USPTO (I can't speak for other countries) is like a self-feeding fire: The more patents they approve the more people and companies have to file protection patents, which brings in more and more money to support more and more bureaucrats. Every patent you approve is a patent that has "job security" written all over it. If, starting on Monday, they approved patents at a rate of 10% of what they did last year they would probably have to fire 75% of their staff (just guessing).
Maybe the way to fight nonsense patents isn't to make an intellectual claim at all. Maybe the only way is to act politically in order to funnel, say, 50% of USPTO revenue to the Department of Health, or Education or completely outside of government entities. The USPTO would cease to be a self-feeding fire and they might just be forced to only pass real patents.
What if there was a rule that everyone involved in a patent that is invalidated is fired and they loose their pension? Violent, yes, but it would sure raise the bar very, very quickly to a super-high level. Which is exactly where the bar should be.
The other aspect of this is that perhaps patents should cost a lot more money and be subject to a significantly more public process where prior art is defined far more liberally than it is today. If a patent application costs started at the lesser of a million dollars or some percentage of last year's revenue the bullshit patents would go away. In the case of organizations like Google/Apple/Samsung it might cost them ten million dollars to apply for one patent and dozens of millions of dollars to actually get one patent. If a patent costs fifty million dollars I suspect we are not going to see many "slide the button this way" patents filed. Yes, this is off-the-hip and not well thought out. I get it. Take it as more of a random though out of frustration than a coherent idea.
Sometimes you just want to cry when you learn about some of the consequences of the government-sponsored monopolies created through the USPTO. Here's a particularly touching example:
The teachers at my kid's school asked me if would collaborate with them to help create (free) iPad apps for their developmentally-challenged students. Of course, I will, but the above bullshit patent and the many more that must exist in the dark files at the USPTO sometimes jar your reality. It is a sad note that rather than sit down and start writing code one of the first things I have to do is a patent search.
Sometimes I wish things were like when I was younger and more innocent: I could choose to help someone with my knowledge of technology and we'd all benefit from what might result (commercial or not). That, sometimes, is a tough choice to make today.
If the price of patent filing was to increase it would increase the barrier for people that don't have a lot of money. Filing in the US starts at $390. http://www.uspto.gov/web/offices/ac/qs/ope/fee100512.htm. I picture a person without a job and lots of time on their hands coming up with something truly unique and amazing, only to be met with an even larger barrier to entry to make sure some big company can't rip off the idea and go to product with their budget. People already face daunting forms, making the process harder only negatively effects poor people that can't afford a team of lawyers and paralegals.
Other than that I found your points on how the current system doesn't incentivize creation but dissuades it instead good, I can say I've been put off from a few of my ideas because I find a patent that's a bit too close and I really don't want to have to face that. Maybe one day when I have billions I can be a renegade, not yet though.
I'm disappointed by the number of software patent apologists on this thread. The effort or the cost required to accomplish something in software is not a good argument for being granted a government monopoly on your type of solution. Code itself can be copyrighted and does not have to be shared. Novelists spend years on novels, have their exact words copyrighted, but don't expect to be granted "patents" on the ability to tell certain types of stories. We need to free programming from these illegitimate shackles. We programmers deserve to have the same freedoms as writers when we sit down to tell our stories in code.
Disappointing that the first topic is writing style, not whether an invention would be trivially recreated by anyone who might need it and so shouldn't be claimed.
Software patents are here to stay. Don't fight a battle you can't win, the Patent Office is not going to throw away the billions of dollars they make on this... But you can make it so they get to keep their revenues, but we get to add rules that help invalidate patents, or limits how much the troll gets.
There are some five hundred thousand applications filed per year, about half of which (so same order of magnitude) are granted [1]. In order for them to make a single billion dollars, there needs to be a few thousand dollars _profit_ on the fees -- I assume, since you said "make", that we're talking about profit and not revenue.
If we're talking about revenue, then it is somewhat close to believable, but there's no reason for them to be reluctant to cut revenue if it also means that they get to cut expenses (on employing reviewers). The top patent holders for the last several years running [2] are all in the software industry, so it's reasonable to expect the USPTO's expenses to drop significantly if software patents were disallowed.
(Finally, the patent office is not a private corporation, but an entity of the government, so the battle is absolutely winnable by merely outlawing software patents.)
The patent office isn't the entity with either the most say or the most desire to keep things the way they are. Congress determines whether or not the patent office even gets the fees or they go straight into the treasury.
Santa Clara held a conference on potential solutions to the software patent problems a few months ago. The proposals ranged from abolishing "computational idea patents" (Stallman says even calling them software patents is flawed) to fee-shifting. It's pretty interesting if you have a few hours to spare.
If you would like to attend one of these meetings and make a point while making everybody laugh, I suggest telling a fictitious story about the time you wanted to learn how to implement a software technology by looking up an expired patent on it.
The fact that this idea is a literal joke should be quite revealing. Patents are supposed to be comprehensible. They're supposed to be the alternative of trade secrets. They're supposed to be a means by which the public learns how to do non-obvious things once they expire.
Personally if the implementation is simple given the task, and the idea is obvious, or combines two existing concepts in an obvious way... it shouldn't be patentable... Anything that is a virtual representation of something real, in terms of software is an obvious idea, and shouldn't be patentable. In fact, for the most part, I can't really think of anything in terms of software, that doesn't have corresponding unique hardware for the past 20 years that is worthy of a patent.
I'd be interested in seeing software patents come with source code and unit tests. The tests, in particular, would help delimit the breadth of the claims which seems to be what the USPTO feels it needs help with. Once they have executable unit tests, it seems like it would be possible to automate the search for prior art.
Unfortunately, I suspect they will not get nearly a proportionate amount of input saying 'software patents delenda est', because the people who feel that way also know that the USPTO is not likely to take their input seriously.
"The first topic relates to how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language."
Or to put it another way, the patent database is a broken datastructure, how do we fix it?
I think it's important to take their question seriously, because if we give them serious answers it will bring home why the patent system is more broken for software than for other things.
The problem with boundaries is that in ordinary property, the incentives are to make boundaries precise. Each property owner may not mind if it's not obverious that the other guy's property is on the other side, but he wants to be sure all of his property is on his side. This doesn't work in patents. The pushback comes from overstretched bureaucrats, not other property owners. So, an interesting question is, is there a way of changing this so each patent filer has the incentive to police the boundaries of other patents?
Imagine that at a given point in time, the patent database included not just the individual patents, but a '20 questions' style index, whereby any patent could be located. Crucially, no patent could be enforced against anything outside the 'bucket' in which it is indexed. (A patent could be indexed in more than one bucket, but only by paying the fee for each.)
That would give patent owners the incentive to police the boundaries of the 'buckets', and it would allow people to more easily find patents they might be infringing. It would also make clear which areas of patentable material have endemic fuzzy boundaries, so a case could be made for reform. There are large areas where the questions would be things like 'does it contain an aldehyde group?' where a tree would work well.
There is a problem with this as a datastructure, though. Any binary tree has to be rebalanced for searching it to be efficient. Even assuming that everyone can be given the incentive to make the rebalancing happen, it's not obvious how to do this. I need a diagram, I'll use this one:
http://upload.wikimedia.org/wikipedia/commons/thumb/4/43/Bin...
Suppose we want to do the tree rotation as in the diagram. The problem is, we only know that the the patents descended from 'alpha' have the 'left' answer to the question in the light green node. We don't know how they relate to the question in the darker green node. So after the tree is rotated, we may need to ask that question of all the patents under 'alpha', an O(N) operation (in legal fees!) and then we may need to move some of them under the branch 'gamma', possibly triggering more rebalancing, so it's not obvious that the operation would even terminate.
So, question: Can a suitable datastructure be devised?
Imagine that at a given point in time, the patent database included not just the individual patents, but a '20 questions' style index, whereby any patent could be located.
Don't sanction the insanity. It would be better that the situation become so dire and painful that the populace wakes up than that software developers actually help make the software patent system appear as if it is reasonable and can "work" in the long run.
[+] [-] jandrewrogers|13 years ago|reply
Three perspectives of which most people ignore one or more:
- Computer technology is over-run with frivolous, vague, stupid, conflicting, and contradictory patents. Any pretense of quality control by the USPTO was lost in the 1990s. This imposes a non-trivial cost on the entire ecosystem and a complete absence of quality control is arguably worse than no patents at all.
- R&D into new computer algorithms is a non-trivial investment, frequently requiring years and millions of dollars. There is a tendency among programmers to discount the level of effort required to develop a new computer algorithm that materially extends the state-of-the-art even though most could not develop such algorithms themselves and have never been involved in such R&D. Organizations that make this investment do so looking for a return.
- Academia is already facing difficulties in computer science because much of the state-of-the-art research is being done by private companies. Much of this research is being treated as trade secrets because (ironically) patents offer flimsy practical protection. As a consequence, there are a number of areas in computer science where the leading academic papers are literally a good half decade behind the state-of-the-art that is buried in NDAs. Lack of publication means that a lot of smart people are wasting time duplicating work. Patents were originally invented precisely to avoid this outcome. One of the reasons that I stopped reading academic computer science in some areas that interest me is that I see computer science under NDA that is much more sophisticated, which is a shame.
Any practical policy will need to take into consideration all of these perspectives. It is not as convenient and simple as "all software patents are evil!" or "software patents FTW!" but it more closely reflects the real tradeoffs.
[+] [-] AnthonyMouse|13 years ago|reply
I don't think critics of software patents are in the practice of claiming that software R&D is always quick or inexpensive. Rather, the claim is that the patent system is demonstrably incapable of improving that situation, and in the meantime has spawned enormously wasteful multi-billion dollar litigation between otherwise upstanding major companies and struck fear into the hearts of small developers who can no longer produce a successful innovative product without risking a shakedown by despicable parasites.
Companies expecting a return have numerous other, less innovation-damaging alternatives to software patents. First to market advantage, copyright and trade secrets cover the field pretty well on their own, and no one can accuse any of those things of causing the average software entrepreneur to lose sleep over the prospect of totally unpredictable ruinous litigation.
[+] [-] iskander|13 years ago|reply
Can you elaborate on which areas of CS academia you think are more sophisticated in the corporate wilds? Other than systems work at Google, I haven't encountered any subtopics which aren't dominated by ideas from traditional research centers (either university labs or academic research units at MSR, IBM, etc...)
[+] [-] belorn|13 years ago|reply
There is a strong opinion among computer researchers that pure algorithms are indistinguishable from math, and thus should be unpatentable. The math guy doing research on sound waves might be slightly annoyed when he gets denied a patent, but the guy working "on a computer" with the exact same math, doing the exact same research, gets a patent because he described the math "on a computer".
Of course, we could just start letting math also be patentable, because it too requires non-trivial investment, frequently requiring many many years and millions of dollars. That is, if the work behind something alone is enough to qualify for patentability.
[+] [-] jberryman|13 years ago|reply
[+] [-] mbell|13 years ago|reply
1) I agree with
2) Computer technology moves at such a breakneck pace and is generally so hard to reverse engineer that this point doesn't hold water for me. We know that google's search algorithm works, ok, but can we reverse engineer it from the outside? The answer seems to be no, so why protect it with patents? Even if we could, by the time we were done google would already be on to the 'next big improvement', there is no catching up in software short of a drastic stumbling in the incombent, should we really protect the incombant from messing up?
3) The entire concept of going to college for software related endeavors is in such peril straits that I don't think we should even consider the affects or impacts of academia on software development, it's well in past at this point regardless of the patent situation.
[+] [-] carterschonwald|13 years ago|reply
It takes time and paying people so they can focus on solving hard problems for real innovation to happen. And its sad when it then has to become proprietary so that the operation can protect having any ROI
sharing is caring, and if that means you can have some revenue still, great!
[+] [-] powertower|13 years ago|reply
[+] [-] rayiner|13 years ago|reply
The idea that I can be presented with a problem, hire a dozen experts and spend millions of dollars coming up with a solution to the problem, and have someone come along and just copy the solution and use it in their own product to compete with me is horrifying.
[+] [-] loceng|13 years ago|reply
[+] [-] rayiner|13 years ago|reply
"I know the USPTO doesn't want to hear that software and patents totally need to get a divorce, but since most software developers believe that, maybe somebody should at least mention it to them, if only as a future topic for discussion. Most developers I know believe software is unpatentable subject matter."
Ask software developers who work in defense, aerospace, medical devices, telecommunications, video/audio processing, and other capital-intensive, R&D-intensive fields. I think you'll get a rather different answer. Indeed, as Google is finding out with the Motorola acquisition and the resulting patent situation, software engineering culture is far from uniform on this issue. The guys who write software that implements radio waveforms don't have the same views on patents as the guys who write software to optimize ad display, or for that matter the guys who write the search engines. Ironically, Google's PageRank is the subject of several patents, and Stanford's interest in the IP netted them $335 million in Google shares when they exclusively licensed it back to Google.
Although, I think this sort of round-table is a pretty good forum for figuring out more about the consensus view of software engineers...
[+] [-] Silhouette|13 years ago|reply
I've worked in several of those fields, and I have yet to meet these proponents of software patents you're talking about. Any advantage to having a patent on the results of your own R&D seems to be far outweighed by the persistent threat of being sued (with or without any actual merit) by someone else who claims you're infringing on the results of their R&D.
If something was useful enough and available enough for multiple parties to invent/discover/exploit it independently, it should be self-evident that patents are not a necessary incentive for that work to take place and can only be a barrier to further innovation for all-but-one of the inventing/discovering parties. This effect is magnified many times over if the patent is not for a specific piece of software but rather for something like a data format or communications mechanism. There is a reason you can't copyright the shape of a font in the US, and I think analogous arguments apply in these cases.
Fortunately, this is less of a problem for us here in the UK where the culture is not as litigious as in the US. Still, if nothing else, the repeated attempts by the US to export its onerous IP regime are a worry for small businesses here that using technologies potentially affected by software patents granted in other jurisdictions. The whole system is just one big barrier to competition for smaller organisations who can't play political/legal games to negate the whole technical issue as the big players do.
[+] [-] belorn|13 years ago|reply
For people who owns land, some do not like regulations that forbid dumping toxins into it. But most societies know that forbidding the dumping of toxins are preferable over allowing it because of the ecological damage the toxins causes to society.
Patents causes an ecological damage to the software community. It might be profitable for a few, but for society as a whole it is a net loss. So long the cost-benefit analyze shows that, patents should have no place in software. Considering that patents are granted monopolies given by the government and enforced by the state, if society can't get more from software patents than it cost, society should not be in the businesses of granting said patents.
[+] [-] gte910h|13 years ago|reply
I'm sure someone, somewhere, at some level, likes patents. I don't think it's engineers though.
[+] [-] noonespecial|13 years ago|reply
That might help them understand where this is headed (and already arrived in many cases).
They want to patent that brilliant little algo they spent months on to eek out that seemingly impossible spread spectrum noise piercing scheme that they finally got working. That's not how it happens at the patent office these days. Worse still, after all those months of creating something genuinely usefull, they're likely to be sued by someone who's never touched a radio, or made a product, and has a patent that reads more like "walky-talkies with teh interwebs inside".
[+] [-] magicalist|13 years ago|reply
That's not irony, as "should not be patentable" and "is patentable" are not mutually exclusive (I've also never heard of anyone being sued over the many, many pagerank-like implementations out there, so really the only thing going on there is University patent policies).
"should not be patentable" and "is patentable" is actually a large part of the problem, because you have to engage in the game to not be sued out of existence, but in doing so, you're making the environment even more toxic.
I always like to quote the Gosling story:
"In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry[1] wasn't nearly the goofiest."
You make market incentives to get companies to patent everything they can. Companies incentivize engineers to patent everything they can. Patent lawyers rewrite the software patent applications to take what is already an abstract set of instructions and turn it into the platonic form of that idea, to make sure they cover all implementations of that idea. The patent office accepts it after 7 resubmissions. You're not going to end up with a good result.
[1] http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sec...
[+] [-] gnud|13 years ago|reply
Can you elaborate?
It seems bizarre to me that formulas can not be patented, but telling a general-purpose computer to execute that formula, can.
[+] [-] raverbashing|13 years ago|reply
Managers also like patents to schmooze their bosses.
"See, I did a patent, that's like, very important"
Meanwhile the lawyers say "yeah, sure" while collecting heavy fees.
And 90% of R&D is on the finished products (incl. code/blueprints) not on the "invention".
[+] [-] Barraketh|13 years ago|reply
Even if we assume that software is patentable, the bounce back effect should not be patentable. The reason is that all the novelty is in coming up with the feature itself. I don't know whether I could come up with the bounce back effect by myself. I know for a fact that I could implement it, and so could any sufficiently strong software engineer. There is no novelty in the implementation that is worthy of patent protection.
This is trade dress all over again hiding under a different name. It should be given a different status (just like business patents), and different time frames of protection. This way we still protect truly novel research in algorithms (pagerank for example), while eliminating 95% of the patents we as software engineers find so objectionable.
[+] [-] danielweber|13 years ago|reply
This is a very good point. Often times knowing the feature you need to implement is the really hard thing. Once you've decided on that, it's trivial to implement, even if you're the first to do it.
[+] [-] chris_mahan|13 years ago|reply
[+] [-] cwkoss|13 years ago|reply
But deciding which ideas are non-obvious is clearly something the USPTO isn't capable of, and so they should just get out of it.
[+] [-] robomartin|13 years ago|reply
Then I was "born" into the real world: One where companies who do nothing (and some who do something) have patents for stuff I had been doing for ages. You know, stuff like using pulse-width-modulation to control LED intensity (ye'old Color Kinetics), clicking buttons (multiple companies) or putting a spring in series with a microprocessor-controlled motor to control force (MIT, series-elastic actuator).
That's when I realized that what I had been "sold" about engineering, entrepreneurship and research and invention was a huge pile of bullshit. The realization was that government incompetence in perhaps one of the most important human fields of endeavor --invention-- has all but ruined what I loved to do before this epiphany.
Now you had to study Sun Tzu. Now, without your own bullshit patent to act as a shield, you had live in fear of being sued for daring to make a screen area clickable or drag-able, attach a spring to a motor, dim an LED with PWM or the myriad of "obvious to someone skilled in the art" things that are patented. Or you had to hire lawyers to ride shotgun on everything you might want embark on.
The alternative is what most of us actually have to do: We use the tools we know and what we learned to create things and explore ideas. Unless you operate at Google/Apple/Samsung scale you have no choice but to stick your head in the sand and hope that someone doesn't come after you because you app sends an email (or whatever).
I don't know what the solution might be. I have done my share of heavy-duty hardware-intensive R&D spanning years. I get it. Sometimes the difference between something flying and not is found in a seemingly minor detail. The wheel was obvious to the second guy who so it, right?
At the same time, I think it is beyond-obvious to most in tech that the US Patent Office has done a dismal job of filtering that which is "obvious to someone skilled in the art" from true invention. I am not going to draw the demarcation line myself, the subject is too complex and each discipline has it's own boundaries.
That said, if you have ever invested any time in the process of patent search I would be surprised if you did not share my sentiment: the vast majority of patents I have seen should never have been issued.
I fully expect lawyer types to say something akin to: "You have to read the claims carefully. The differences can be subtle but important". I've heard this before. My answer has always been the same: As an engineer I don't have to dive into intricate lawyer-ese to know bullshit when I see it. A spring attached to a motor to control force, you know, "F=kx", is way beyond obvious to anyone who took first-semester Physics. Yet, you lawyers manage to craft convoluted language that takes "F=kx" in the form of a motor and a spring and turns it into a patent that I now have to worry about if I do robotics (which I have done in the past).
Perhaps one of the problems is that the USPTO (I can't speak for other countries) is like a self-feeding fire: The more patents they approve the more people and companies have to file protection patents, which brings in more and more money to support more and more bureaucrats. Every patent you approve is a patent that has "job security" written all over it. If, starting on Monday, they approved patents at a rate of 10% of what they did last year they would probably have to fire 75% of their staff (just guessing).
Maybe the way to fight nonsense patents isn't to make an intellectual claim at all. Maybe the only way is to act politically in order to funnel, say, 50% of USPTO revenue to the Department of Health, or Education or completely outside of government entities. The USPTO would cease to be a self-feeding fire and they might just be forced to only pass real patents.
What if there was a rule that everyone involved in a patent that is invalidated is fired and they loose their pension? Violent, yes, but it would sure raise the bar very, very quickly to a super-high level. Which is exactly where the bar should be.
The other aspect of this is that perhaps patents should cost a lot more money and be subject to a significantly more public process where prior art is defined far more liberally than it is today. If a patent application costs started at the lesser of a million dollars or some percentage of last year's revenue the bullshit patents would go away. In the case of organizations like Google/Apple/Samsung it might cost them ten million dollars to apply for one patent and dozens of millions of dollars to actually get one patent. If a patent costs fifty million dollars I suspect we are not going to see many "slide the button this way" patents filed. Yes, this is off-the-hip and not well thought out. I get it. Take it as more of a random though out of frustration than a coherent idea.
Sometimes you just want to cry when you learn about some of the consequences of the government-sponsored monopolies created through the USPTO. Here's a particularly touching example:
http://www.electronista.com/articles/12/06/14/speech.applica...
The teachers at my kid's school asked me if would collaborate with them to help create (free) iPad apps for their developmentally-challenged students. Of course, I will, but the above bullshit patent and the many more that must exist in the dark files at the USPTO sometimes jar your reality. It is a sad note that rather than sit down and start writing code one of the first things I have to do is a patent search.
Sometimes I wish things were like when I was younger and more innocent: I could choose to help someone with my knowledge of technology and we'd all benefit from what might result (commercial or not). That, sometimes, is a tough choice to make today.
[+] [-] jeremyarussell|13 years ago|reply
Other than that I found your points on how the current system doesn't incentivize creation but dissuades it instead good, I can say I've been put off from a few of my ideas because I find a patent that's a bit too close and I really don't want to have to face that. Maybe one day when I have billions I can be a renegade, not yet though.
[+] [-] switch007|13 years ago|reply
[+] [-] sutro|13 years ago|reply
[+] [-] prodigal_erik|13 years ago|reply
[+] [-] baseh|13 years ago|reply
https://www.federalregister.gov/articles/2013/01/03/2012-315...
USPTO should go abolish itself, for the benefit of mankind.
[+] [-] powertower|13 years ago|reply
[+] [-] wheaties|13 years ago|reply
[+] [-] geofft|13 years ago|reply
There are some five hundred thousand applications filed per year, about half of which (so same order of magnitude) are granted [1]. In order for them to make a single billion dollars, there needs to be a few thousand dollars _profit_ on the fees -- I assume, since you said "make", that we're talking about profit and not revenue.
If we're talking about revenue, then it is somewhat close to believable, but there's no reason for them to be reluctant to cut revenue if it also means that they get to cut expenses (on employing reviewers). The top patent holders for the last several years running [2] are all in the software industry, so it's reasonable to expect the USPTO's expenses to drop significantly if software patents were disallowed.
(Finally, the patent office is not a private corporation, but an entity of the government, so the battle is absolutely winnable by merely outlawing software patents.)
[1] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm [2] http://en.wikipedia.org/wiki/List_of_top_United_States_paten...
[+] [-] mayneack|13 years ago|reply
[+] [-] mburshteyn|13 years ago|reply
The video feed is here: http://ammsweb.scu.edu/webcasts/mmedia1/20111014-083613-1e_o...
Wired op-ed series based on the conference presenters: http://www.reddit.com/r/IAmA/comments/14cb0c/im_snoop_lion_a...
[+] [-] YokoZar|13 years ago|reply
The fact that this idea is a literal joke should be quite revealing. Patents are supposed to be comprehensible. They're supposed to be the alternative of trade secrets. They're supposed to be a means by which the public learns how to do non-obvious things once they expire.
[+] [-] tracker1|13 years ago|reply
[+] [-] politician|13 years ago|reply
[+] [-] gwillen|13 years ago|reply
[+] [-] ommunist|13 years ago|reply
[+] [-] ajb|13 years ago|reply
Or to put it another way, the patent database is a broken datastructure, how do we fix it?
I think it's important to take their question seriously, because if we give them serious answers it will bring home why the patent system is more broken for software than for other things.
The problem with boundaries is that in ordinary property, the incentives are to make boundaries precise. Each property owner may not mind if it's not obverious that the other guy's property is on the other side, but he wants to be sure all of his property is on his side. This doesn't work in patents. The pushback comes from overstretched bureaucrats, not other property owners. So, an interesting question is, is there a way of changing this so each patent filer has the incentive to police the boundaries of other patents?
Imagine that at a given point in time, the patent database included not just the individual patents, but a '20 questions' style index, whereby any patent could be located. Crucially, no patent could be enforced against anything outside the 'bucket' in which it is indexed. (A patent could be indexed in more than one bucket, but only by paying the fee for each.)
That would give patent owners the incentive to police the boundaries of the 'buckets', and it would allow people to more easily find patents they might be infringing. It would also make clear which areas of patentable material have endemic fuzzy boundaries, so a case could be made for reform. There are large areas where the questions would be things like 'does it contain an aldehyde group?' where a tree would work well.
There is a problem with this as a datastructure, though. Any binary tree has to be rebalanced for searching it to be efficient. Even assuming that everyone can be given the incentive to make the rebalancing happen, it's not obvious how to do this. I need a diagram, I'll use this one: http://upload.wikimedia.org/wikipedia/commons/thumb/4/43/Bin... Suppose we want to do the tree rotation as in the diagram. The problem is, we only know that the the patents descended from 'alpha' have the 'left' answer to the question in the light green node. We don't know how they relate to the question in the darker green node. So after the tree is rotated, we may need to ask that question of all the patents under 'alpha', an O(N) operation (in legal fees!) and then we may need to move some of them under the branch 'gamma', possibly triggering more rebalancing, so it's not obvious that the operation would even terminate.
So, question: Can a suitable datastructure be devised?
[+] [-] coopdog|13 years ago|reply
Would it need to be balanced? It might be better to have to play 100 questions instead of 20 rather than pay O(n) in legal fees multiple times
[+] [-] bitwize|13 years ago|reply
Makes me think of the old computer game "Animal".
ARE YOU THINKING OF AN INVENTION? y
IS IT RED? n
DOES IT HAVE WHEELS? n
DOES IT RUN ON ELECTRICITY? y
etc.
[+] [-] JohnFromBuffalo|13 years ago|reply
[+] [-] wissler|13 years ago|reply
[+] [-] Kim_Bruning|13 years ago|reply
[+] [-] tubbo|13 years ago|reply
[deleted]