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Comment by gilgoomesh | Hacker News Reader

I've always though trying to discriminate against "software" patents was particularly stupid.

First: it simply encourages patents where the entire computer is included in a description of the software, turning it into a product/apparatus patent.

Second: the problem most people have with software patents is not the fact that software is being protected. The problem is that software patents are rife with "inventions" that are merely a low-effort merging of existing ideas – usually ideas that are well established and the context is changed slightly.

This second point applies to any industry, not just software. Biotech industries are continually trying to patent drugs and genes using the same pattern. Fix the stupid determination of novelty, rather than discriminating against certain kinds of invention.

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The supposed benefit to society from granting a monopoly on an idea is that it encourages people to invent new ideas and disclose their inventions. Neither ideas or disclosure of ideas are in short supply in the computer world today. Software patents provide no benefit to society.

Good point. Also, disclosure is implicit in distribution in software, so no encouragement of disclosure is needed. That is to say, if someone has some new software idea, and wants to keep it a secret, the only way is not to implement anything and not to ship anything. (Or else, ship the software on a tamper-proof black-box chip, and not in a way that actually installs on the customers' hardware.)

Or put it in the cloud, and only sell SaaS?

Excellent point, indicating a clear detriment.

I'm actually fine with that. For almost all inventions knowing something is possible is enough to be able to figure out a way to replicate the basic idea, it is rare that the patent disclosure really shows something that was thought to be infeasible (they do exist though).

The problem lies in the fact that those few ideas tend to be so valuable that patents by themselves are actually useful, it is in the aggregate and with the amount of abuse of the patent system that it becomes a net negative.

On the whole I believe that the world would be better off without patents but what with the developed world being less and less on the producing side of things copyright, patents and other 'intellectual property' concepts are becoming a mainstay of our economies, so expect them to be here to stay.

Yes. Patents are probably a detriment to the economy. But like so many other economic rents, the benefits are concentrated, while the costs are spread out.

The key part of your comment being `supposed'. The official justification is the seldom the real cause for laws and institutions.

> it encourages people to invent new ideas and disclose their inventions

Is that really the point? I thought it was to allow you to time to profit off of the R&D investment made to develop the idea before it was freely available to the market.

Nope. That purpose is satisfied by trade secrets. The point of a patent is specifically to incentivize disclosure- to give you a means of retaining the same economic advantage you would have if you kept it secret, so that you can recoup your investment, without having to actually keep it secret.

The advantage for the patent holder of a patent over a trade secret is that, if someone finds out your secret, you're hosed; but if someone copies your patent without licensing before it expires, then you can sue them. So, you agree to disclose and then release your invention after a fixed time period in exchange for greater economic security during that period.

Outside of web services and food, does anyone rely on trade secrets?

yes

Lots of companies. To sue for patent infringement you first have to find out that they are infringing your patent. That's very difficult in many cases (e.g. production methods). In comparison keeping a trade secret may be much more viable.

For many small companies it's often too costly to enforce their patents worldwide, while keeping secrets is easier the smaller the company is.

And in many non-software inventions, even if you build the product and market it, the secret is not obvious: that is to say, the means of producing that product.

For instance, you might come up with, oh, a high yield method for producing some valuable chemical and keep it secret while just selling the chemical. The ability to obtain the patent encourages the disclosure of the recipe for that high yield method, while ensuring that you get compensated by licensing. This protection lasts for some time, and then the knowledge becomes patent free. In the alternative scenario, the secret process might just die with the company. Or, someone else figures it out not long after, does better marketing, and eats the original inventor's lunch. So there is a wager involved. The certainty of so many years of protection, versus the uncertainty of someone figuring out the secret.

right, if by "many" you mean "a small minority"

Well, patents are a deal between inventors and government. In exchange for protection for a set period of time, the inventor reveals the workings of the idea. That protection does give the inventor time to profit. Without that, the inventor would have no incentive to disclose.

Trade secrets are different, hard to demonstrate, and critical to protect. For example, Apple is trying really hard right now to protect its trade secret iOS from being revealed by the FBI.

More on trade secrets: http://www.wipo.int/sme/en/ip_business/trade_secrets/protect...

Trade secrets are impossible in the case of most patents. The majority of patents are easy to understand by just looking at the product. The supposed revelations of patent filing amount to nothing at all, especially given that almost all patents are effectively obfuscated anyway.

I would argue that most of those are bad patents, which should not have been issued. One of the criteria for being awarded a patent is that your invention be non-obvious to an expert in the relevant field. If just looking at the product is sufficient to disclose everything you need to reproduce it, that doesn't necessarily mean that the idea is "obvious", but it should give one pause, and warrant further investigation into whether or not this particular invention is really worth patenting.

No, my comment applies equally to "good" patents. When someone invents something truly non-obvious, it is still usually easy to figure out by looking at the results, so the "revelations" in the patent application are of no value. As a society, we have no interest in giving people a monopoly over truly non-obvious inventions unless failing to do so would make the invention not happen (which is a different argument than the revelation one).

Trade secrets don't protect against reverse engineering or simply copying behavior. Historically, one of the rationalizations of patents was to encourage disclosure, but the exact wording, at least in the US constitution, gives no specific reasons.

Well, this is simply wrong as:

"The Congress shall have power ... 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;"

That is the exact sentence to which I refer. Note that it says nothing about "disclosure" or "recouping investments in R&D" or "protecting the little guy" or any of the rationalizations people typically assign to the patent system. It is deliberately vague and open to interpretation, specifying in broad terms only the means ("time limited monopolies") and the ends ("progress of ... the useful arts").

> Neither ideas or disclosure of ideas are in short supply in the computer world today.

Personally, I don't see much innovation in the software industry, mostly just reinvention of the same wheels over and over and over in slightly different contexts. Most of the really innovative stuff is locked away in various data centers and all we get are tantalizing glimpses when their developers deign to publish a paper or a measly blog post.

MY REST API serves JSON. Some of us are still innovating.

Yup, a huge step up from SOAP APIs serving XML and RMI serving serialized Java objects ;-)

Heh

It depends entirely on your field. I spent most of my career as an engineer working on R&D for software that would likely sit in a baseband in a production implementation. We spent millions of dollars building it, and nothing comparable is publicly available. The secret sauce in a baseband is definitely the sort of thing that's in short supply. And it's software.

That said, the patent office may not be qualified to distinguish between something that someone whipped together and something that took a team of PhDs years to invent. And maybe that problem is an intractable one.

Bet my team of PhDs would come to the same solution.

And there you have why your situation is no different.

Software is a dish, we are chefs, and techniques are our recipes and principles. You should no sooner be able to patent a chicken casserole than a baseband. We merely discover what is already true and turn it into code.

> Bet my team of PhDs would come to the same solution.

Maybe they would, but they didn't.

The point of the patent system is to incentivize people to publish their inventions. The secondary purpose is to encourage invention. Giving a temporary monopoly is not the greatest solution, but try coming up with a better one.

> Bet my team of PhDs would come to the same solution.

What is missed here is they might of come up with a better solution, but due to the risk of a lawsuit they never even try.

I don't follow this - why would anyone get sued for trying to come up with a different solution?

Because they may contravene, a vague overly broad software patent, that effectually locks up ideas, not implementations.

Because the current way patents in the US are viewed, is as ammunition to attack competitors (and potential competitors). :(

Open Source software largely handles what patents are intended to do. If someone makes some cool software, then someone else works out how that works. Then they develop code, which they publish under an open license. Then others contribute to it, or if that doesn't work then they fork the code and thus innovation AND publication occurs.

And as software gets more complex, you need to support it and build new features. That happens all the time without the aid of patents. In fact, when a patent is made, then sure its patented but so what? It can't be used for decades, and so only one party benefits and the idea that is beneficial to society stagnates.

This is not a zero sum game here. If you patent a medicine for 10 years, then people like Martin Shkreli come along and jack up the price of their product, nobody is allowed to offer cheaper medicine and literally millions die.

Or you have a situation where a non-lethal arrow is patented, someone independently comes up with the same idea, documents it and sells it, does to want to patent it and then gets sued to an inch of their life. Then you have an independently document invention, and no innovation.

The argument doesn't stack up.

Open Source accomplish exactly the opposite of what patents are for: instead of encouraging innovation by providing financial incentive (from temporary monopoly on selling said innovation) it discourages it because it basically ensures that you'll never make any money on your invention.

Maybe I'm missing something but there aren't many examples of truly innovative open source software - most of OSS projects even describe themselves as "Open Source alternative to [insert innovative commercial product here]"

Email isn't patented, not it the web, nor is TCP/IP, nor is any one of dozens of non-patented inventions you use on a daily basis. If TCP/IP was patented, do you think you'd see the Internet as we know it today? Would NetFlix, or Wikipedia or even Google would exist in the form it is now? I don't think so.

edit: removed the "that's ridiculous" comment. I'm sorry, you aren't ridiculous, nor is your comment. That showed you a great deal of disrespect, and I was out of line. I hope you can accept this apology. My disagreement with your argument should never have led to disrespectful comments.

(I just hit the up vote arrow)

I think some of my other comments have this language in them. That's unfortunate, it's just this is just the first one I noticed.

Actually, open-source is the exact opposite of what patents are intended to do - patents discourage trade secrets that die with their inventors by giving their holders a right to timed exclusivity (regardless of whether other people know how to copy them or not), in exchange for publicly documenting said trade secrets.

Open-source is essentially just a tool for collaborating on software more easily (ignoring the Free Software side for a sec), but which requires giving up propriety over the software.

Can you give any example of a trade secret that cannot be reinvented had it not been for patents?

Patents are hundreds of years old. In the fifteenth century markets and science was very different to what it is today. There is an argument that patents were helpful before the world evolved to freer markets. I mean, patents were invented around the time of feudalism, and nobody now considers THAT to be a good idea. An example used for the case of patents is James Watt's steam engine, an amazing invention. But in my view it is an example of an invention where innovation was deliberately stymied; sure he improved upon it greatly, but then again he prevented any number of other capable people from doing so and caused a monopoly. And ironically he could not have patented his invention had he not taken the original non-patented ideas of Thomas Savery and Thomas Newcomen, who originally worked out the general principle.

In fact, you only have to look at the most important invention IMO the world ever produced to see that patents would have stopped innovation entirely - the printing press, which predates patents by a century. Without the printing press, almost no modern innovation would have been possible. There were vast numbers of printing presses produced that allowed much more rapid dissemination of ideas and ushered in the current age. Had a patent been allowed on this innovation, then the modern day would look much, much more different. Even religion would have been different.

No, patents may discourage trade secrets, but you assume that they are the only mechanism for doing so, and you dismiss the fact that they aren't necessary to prevent someone else from discovering that trade secret.

You have a few conflated arguments here.

Open source is relatively orthogonal to the patent system. There is some overlap in that they both require disclosure, but the fundamental incentives are different, so you should expect different software to be developed.

Improvements to patents can be patented in their own right, by different owners. I agree that it is significantly more onerous than open source.

Scummy as Martin Shkreli was, he jacked the price up on a generic... Not something under patent. It just takes time/money to certify that new generic lines are manufactured to FDA standards, do he had a temporary monopoly.

Lawsuits against "infringing" software are relatively easy, and expensive to defend against. That is independent of whether the defendant patented the software or not. This is more the nature of our legal system, and one could argue that the patent system should handle this stuff internally. However, I think the legal system would be hard to improve upon without causing other problems, like making it difficult to challenge for legitimate infringement.

All in all, I agree a lot of questionable patents get issued. I just think the reality is far more subtle.

India decided to ignore patents on certain medicines. Pharmaceutical companies were initially outraged, then when they realised they had hit an immovable object they freaked out and started offering their drugs at very low cost. They are still making innovative products, but they distorted their market power and millions of poor Indian citizen's lives were immeasurably worse off for it.

Your final point about patent infringement... I dunno what to say. You've just explained why patents are inherently problematic, the patent system can't handle it internally because then they would be handling financial lawsuits in a non-transparent matter, and the rule of law would be in essence damaged. By making the patent office the approvers AND handle objections - that's not going to ever work. They'll almost always agree with their own decision. After all, they made the wrong decision in the first place!

Patents occur within the legal framework. If the patent system is hard to improve, then those other issues you mention are, to my kind, not immeasurably greater than the utterly broken patent system we gave today.

I don't feel the reality is as subtle as you talk about. I think it's actually as clear as day that patents distort markets, and I don't feel you've demonstrated that patents aren't orthogonal to open source software, except where it comes to financial incentives.

Open Source financial incentives are to build the best software that the market wants, and sell the code with backing support contracts and early access to new features that are shown in the open, with guarantees that the best people are working on the software; yet still the same time allowing maximum competition and innovation in the market whilst each company or organization strives to produce the most attractive offering.

Patents attempt to produce a monopoly on an idea and prevent anyone else from capitalising on it for decades. It assumes that nobody will ever want to form an invention unless they have exclusive control over that idea. That's self-contradictory - protecting a patent means that someone else WILL have that idea eventually and want to build a product around it, or even incorporate it into their product. They won't be able to, except at great cost. This clearly and IS stifling innovation. The rise of patent trolls and defensive patents are just two examples of how utterly and fundamentally flawed the entire concept of patents are.

This is a silly forum in which to have a long debate :). I will admit, I mostly agree that the vast majority of software patents should probably be invalid, and that the existing system leaves a lot to be desired.

A couple of important points:

> They are still making innovative products, but they distorted their market power and millions of poor Indian citizen's lives were immeasurably worse off for it.

No, most innovation in new drugs happen in countries with strong patent protection. There is a lot of development outsourced to India, but almost nothing innovative on the development side. That isn't to say India's policy doesn't make sense for them, but they are essentially just stealing from the US and other countries. Imagine if that were true worldwide 20 years ago. Health insurance would be a lot cheaper, yes, but a large percentage of drugs developed in the last 20 years would not exist. It's a trade off that maximizes a longer term return.

> infringement

Yeah, I was just pointing out that a lot of the patent system is designed to protect people who are being infringed by larger entities. Just because it is abused by others doesn't mean it doesn't serve a purpose.

> patents distort markets

Of course they do, but it is not necessarily net negative.

> demonstrated that patents aren't orthogonal

Yes, that is a very long discussion. However, it should be fairly obvious that the software developed by industry and the software available in the open source world is not the same. I would go so far as to say the open source world is an order of magnitude or two smaller than software from for-profit entities. There are different incentives for releasing open source software than starting a business, and patents are designed to make the latter more attractive.

> Patents attempt to produce a monopoly on an idea and prevent anyone else from capitalising on it for decades.

No, patents provide a temporary, licensable monopoly on an implementation. You don't patent the idea of holding paper together, you patent the concrete implementation and manufacture of a paper clip.

More importantly, they require disclosure of that implementation to the rest of the world. I think this gets lost when people talk about removing the patent system. The primary purpose wasn't to encourage invention, but to make sure people disclose it.

Agreed. For the record, I hope you understand that whilst I disagree with you, I respect your viewpoint :-) if I've been overly harsh, I apologise. I agree this is a long conversation and probably not entirely the right forum. Also, I just had an operation and in pain, and just took some heavy medication, so I'm going to have to bow out... My writing might suddenly appear more erratic than normal!

> We spent millions of dollars building it, and nothing comparable is publicly available. The secret sauce in say Qualcomm's baseband is definitely the sort of thing that's in short supply.

There's certainly short supply of the secret sauce in Qualcomm's baseband.

Your team spent millions building it, and, in order to give a sufficient incentive for teams to do similar things to that, the law should probably give some protection so that Qualcomm can make a profit from it. But you're conflating a bunch of things here:

1. Qualcomm knows the product and has the engineers. Qualcomm is uniquely positioned to build usable reference implementations, chips, etc, and to charge for this service and for support. This requires no legal protection whatsoever.

2. Qualcomm holds copyright on the code base. This has nothing to do with patent law, and I think that very few people would dispute that copyright makes sense in this context. (Whether long-term copyright makes sense is a different story altogether. I tend to think that a decade or two would be more than enough to make Qualcomm's investment worthwhile enough that they would do it.)

3. Qualcomm holds lots of patents that prevent other people from spending the same millions of dollars to develop a competing product without taking significant risk of being sued. I, and many others, think that the law should not offer Qualcomm this protection.

4. As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate.

> As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate.

This is going in circles. You cannot patent something without disclosing it. So, either Qualcomm has a patent, and it isn't secret, or they don't have a patent (nor can they ever, after 18 months) and the argument is moot.

Yeah, in general stuff pertaining to software can be classified into one of four kinds of IP: copyrights, trademarks, patents, or trade secrets.

The date that matters for trade secrets with respect to patentability is the date that they are first published or offered for sale. I don't believe offering a binary for sale counts as offering the trade secret for sale, but insert usual disclaimer.

> This is going in circles. You cannot patent something without disclosing it. So, either Qualcomm has a patent, and it isn't secret, or they don't have a patent (nor can they ever, after 18 months) and the argument is moot.

Yes, but then software patents should require you to release a full reference implementation with full documentation under a free (BSD, MIT) license as soon as the patent runs out.

If we were going to enforce the same transparency that non-software patents give then they'd release the full reference implementation right in the patent.

Exactly — but for all practical measures, it does not differ if they release it in the patent, or only when the patent runs out.

Currently, they don't release it at all.

Additional regulation I'd like to see: Any neural networks trained based on data of users have to be completely public domain. If Google wishes to train recaptcha, they should either pay for people to train it, or give back to the public the value that the public created.

It does matter, because if the publish it in the patent I can start planning to build something with years before the patent expires, or time improvements I make on it for that expiration.

This to me is the sticking point. The biggest benefit to society for patents is: you get the formula (but can only use it once the patent expires). I would imagine that no one short of lawyers has ever bothered to read expired software patents. They are literal drivel and until they are useful to have disclosed, they should probably not be patentable, in my opinion.

patents should require you to release a full reference implementation with full documentation under a free (BSD, MIT) license as soon as the patent runs out

Why not as soon as the patent is granted?

Because that bill would be even less likely to pass?

It is indeed. You are arguing that the secret sauce is in the baseband, and yes you can't patent it if the competitive advantage is that it's hard to make so long as it is secret. It's novel, you don't need to patent it to make money as copyright takes care of that... And so to complete the circle patents aren't necessary, and don't benefit society in the scenario you present!

edit: you might bring up clean room engineering that AMD did in the 80s. Intel weren't effected, and are bigger than ever. And the pace of innovation is massive.

> 1. Qualcomm knows the product and has the engineers. Qualcomm is uniquely positioned to build usable reference implementations, chips, etc, and to charge for this service and for support. This requires no legal protection whatsoever.

Why should you or anyone else get to decide on how Qualcomm is monetising the product of their investment?

Qualcomm spent millions on developing this, nobody else should be able to decide this.

> 4. As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate.

It is Qualcomm's property, they can keep it secret or open source it however they decide. I deeply reject the idea that government should have the right to order us to share our private property with the public.

> It is Qualcomm's property, they can keep it secret or open source it however they decide. I deeply reject the idea that government should have the right to order us to share our private property with the public.

Mostly I agree with you, but I think it is worth noting that this discussion is in the context of patent protection for software.

One of the requirements of applying for a patent is providing a reference implementation - I believe this is what the parent was referring to when they mentioned whether or not Qualcomm should be "permitted to keep the sauce secret".

Well yes, if that's what he meant then it's something different. There's no point in allowing patents when nobody can know what implementation is patented in the first place.

Why should you or anyone else get to decide on how Qualcomm is monetising the product of their investment?

Because Qualcomm is riding the coat-tails of a government-issued investment protection? You can't argue for anti-free-trade policies by using free trade arguments.

While perhaps true for Qualcomm, it is hardly the case for all agents producing valuable knowledge.

For the sake of argument, if Qualcomm had no such connection to the government and has created it's products entirely from private funds, why should the government or other third parties have a right to dictate their product?

>> 1. Qualcomm knows the product and has the engineers. Qualcomm is uniquely positioned to build usable reference implementations, chips, etc, and to charge for this service and for support. This requires no legal protection whatsoever. > > Why should you or anyone else get to decide on how Qualcomm is monetising the product of their investment? > > Qualcomm spent millions on developing this, nobody else should be able to decide this.

I said no such thing. I said that Qualcomm could do this, not that they must or that they should be required to.

>> 4. As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate. > > It is Qualcomm's property, they can keep it secret or open source it however they decide. I deeply reject the idea that government should have the right to order us to share our private property with the public.

I don't think the government should, in general, require Qualcomm do share this secret sauce. But it just might be worth considering whether the government should require that the secret sauce that runs enormous numbers of devices (read: extremely high-value target if someone can break or pwn many of them) on wireless spectrum (which is a shared resource!) should be opened to independent auditors and security researchers as a precondition of being granted a license to operate on public spectrum.

Like I said, I think it's worthy of at least some debate.

Judging novelty or obviousness of software is an intractable problem placed on the patent office. There are too many people "inventing" diverse software too quickly. If millions of people carried gene labs around in their backpacks it would be an intractable problem for biology patents too.

How do patent officers judge novelty or obviousness? I mean, I find a loop obvious, but a non-programmer applying it to another domain might consider it novel, even if it's not to me.

The answer: they can't, it's all subjective to the examiner, and the examiner has an incentive yo eventually pass the patent. Then it has to go through an expensive court case where only a patent troll wins because they threaten lawsuits which some companies can't afford, even if the patent is bullshit, or nobody wins as the patent troll doesn't succeed, but no or inadequate costs are awarded to the defendant.

I think the biggest problem is people independently inventing things. Late last year, I thought for sure the box shadow drawing technique I spent several days developing from first principles was original. Turns out that, of course, it wasn't: the technique had been described a year or two before that and was written up on a blog.

Carmack's Reverse is probably the most well-known example of this, also in the graphics field.

It may still be optimal in some macroeconomic sense to encourage two people who independently invent an idea to race to patent it and to have the winner of the race sue the loser. But I think most people would consider this scenario unfair.

This is a problem with all patents though, independent invention is not a valid defense…

I think an even more stupid example was the xor cursor technique that was locked up by CadTrac, (later Quantel) and forced a rewrite of parts of X, and the Amiga.

https://plus.google.com/+RayCromwell/posts/dbipY1GJoGv

Well, you say that the software wouldn't be written, but then I don't believe this. Just because someone wants a monopoly on an idea, doesn't mean it can't be useful to make someone else money. If the idea is valuable enough, then someone will make a product from it. Then someone else might improve it, or make it cheaper. That's competition, in a free market.

The funny thing is, if software patents were only for 5 years, then it's unlikely this would be a story. The market could be capitalised on still by first-movers, and then competition and those who want to contribute further to society could cool their heels, even study the designs, and move product for consumers, and provide additional jobs. Mass market distorting giants couldn't get unfair advantages and innovation would thrive. The technology would improve because then that same company could file improvement patents, but not stop the old patent from being used. Patent trolls would not be a thing, or at least a very limited thing and at the very least all easy processes would be documented.

Teams of PhDs would still invent things. We'd still have cool tech. Open source people would make amazing things. Matheticians would continue collaborating. The world of commerce would not come to an end.

It actually depends on the idea. Einstein's theory of General relativity and special relativity are "ideas." So are my "ideas" for building the next facebook killer. One is more complex and "correct" than the other, and each "idea" is merely a description of things—a collection of infinitely smaller ideas. Descriptions can be detailed, wrong, or absurdly vague.

I have an idea for obtaining two apples. It involves going to the apple tree and obtaining another apple and adding it to the one I already have. Simple, but valuable idea because its constituent ideas are probably low cost (the apple tree has apples... find an apple tree... reaching for the apple is also a simple concept). Of course the value of this idea is the sum of its constituent ideas. So it may turn out that there are no Apple trees in the vicinity and no one knows where to find one. Then the value of the idea is inversely correlated with the cost of the constituent ideas (finding out who has an idea where there is an apple tree). The idea for physically obtaining the apple once you are at the tree is to physically reach your hand up to an apple and apply a sufficient force to remove it from the tree. It's a brilliant idea, but it is also cheap since 90% of people over 3 years old probably know how to do that.

>The secret sauce in a baseband is definitely the sort of thing that's in short supply. And it's software.

I think some of the general attitude towards software patents has to do with CS's very close historical relationship with the math department, with many of the old CS advancements and algorithms having been done by mathematicians or at least math majors (if you count people like Knuth and Hoare) and in math there's always been a very strong culture of work-sharing as well as the general attitude that many discoveries were fated to have been made by someone (such as the contest to prove the theory of quadratic reciprocity), and there are many famous examples in history of different people independently discovering the same proof. It's this latter belief that causes people to believe that patents have a "chilling effect": when there are no more algorithms to be discovered, the only way to develop an effective product is to pay one of the first movers, also known as "finders-keepers", also known as rent-seeking.

Patents are awesome when they discourage stealing work, but bad when they discourage independent reinvention. And it's really the possibility for independent reinvention, not "triviality", that makes software patents a problem. Unfortunately just because a problem isn't simple doesn't mean that two different people won't find similar solutions independently. When someone gets a patent on the only effective way to do something, it can create a legal barrier that prevents some people from being able to do it at all, like using a Mac in the '90s with a decent mouse, or listening to music on an open-source device, or HTML5 <video>... who knows how much stuff hasn't been made because of MPEG-LA?

> I spent most of my career as an engineer working on R&D for software that would likely sit in a baseband in a production implementation. We spent millions of dollars building it, and nothing comparable is publicly available. The secret sauce in a baseband is definitely the sort of thing that's in short supply.

A lot of those millions of dollars are because you have crappy processes, crappy tools ("rational" ones for example), base-level engineers (with some exception) and stupid management

I bet most of your "secret sauce" is mostly application of Computer Science 101/201

I know, those softwares are complicated. But I'm not feeling sorry for most big companies who like to justify cost with their own crap dragging them down

(And yeah, I know, telecom protocols are awful)

That's why Android and Apple wiped traditional phone companies

You clearly have no idea what you are talking about. I am doing baseband SW in tier1 vendor, and we have no processes, crappy tools (maybe you consider git and clang a crappy tool?) and don't give a flying f##k about management.

...and this is funny that you consider advanced signal processing, numerical analysis, SoC architecture, discrete optimization a CS 101 - what a joke.

> maybe you consider git and clang a crappy tool?

No I don't, and good for you that doesn't work with bozos that like ClearCrap, oops, ClearCase. Apparently they evolved

> that you consider advanced signal processing

No, I don't consider that simple, but sometimes the frontend signal processing is split (DSP stays in one part and higher level processing in another part)

> numerical analysis, SoC architecture, discrete optimization

Well, SoC architecture is hardware, no?

Why the downvotes?

Google and Apple don't write their own baseband software.

Yes, and companies that have worked in that area have left the mobile phone marked (Qualcomm and Philips for example)

I don't understand what you mean.

This is an argument against patents. Not software patents.

https://en.wikipedia.org/wiki/Straw_man

> Software patents provide no benefit to society

Deployed correctly, they can spur competition. Finance has no concept of intellectual property. If a small shop invents a security, and it does well, the big shops copy it overnight. This is good, from a product-diversity perspective. It is bad, however, from a firm-diversity perspective. Balancing those perspectives is what this debate is about. Slanting to one extreme or another isn't helpful.

How is it bad from a firm-diversity perspective? If multiple companies develop the same product then a diverse range of businesses sell that security.

Of course, one could argue that "innovation" in financial markets has had a lot of bad consequences. There are very few truly innovative and solid ideas that don't cause huge amounts of risk. Black-Scholes algorithm is one example of good innovation that comes to mind, but even that caused problems for their inventors.

Collateralised debt obligations, credit-swaps, contracts for difference, most derivatives, high-frequency trading and binary options are all hugely high risk and/or distort markets. HFTs in particular are egregious, they are hard to analyse and rely on huge numbers of transactions being made and, to my mind, allow traders to make money not on the qualities that allows commerce to do good for society, but only benefits those who aren't the first to attempt to buy or sell a share based on what others are doing, but by looking at 3hat they are doing and jumping in first. The only winners there are those looking to improve high speed Internet transactions, but even then the gains are limited.

NO. It's the fact that the actual inventors of an idea can get some of the value from their idea instead of the one lucky company that finally manages to get an idea to market and make profit from it. Software's is full of brilliant ideas that brought close to zero benefit to their inventor. People like Alan Key or Doug Engelbart, and other much younger "idea people" that few even hear of, deserve(d) to be billionaires just as much as Mark Zuckerberg.

I do believe that software patents should exist, but I believe that they should only be granted to individuals (maybe to non-profit foundations), never to companies! And they should work in a way that nobody can use a patent to prevent you from using his/her algorithm, but only to force you to pay a minimum amount (set at contract creation) per N users (if you're a P/SaaS company).

The software industry is creating tons of value, but I'd argue that less than 1% of it goes to where it should: it just piles up the food chain in the hope of being later redistributed by philanthropy!

And yes, writing such a law would be f HARD, you'd have to really train a new generation of software-expert-patent-clerks and software-expert-lawyers and judges for it to work and don't do stupid things like patent trivialities that would then stifle everyone else.

Oh, and I really believe that patents should not even be about benefiting society. They should benefit the "idea creators", shifting some of the immense wealth from the "idea distributors" and "idea marketers". As long as there are still problems unsolved in the universe, ideas are always in short supply! A problem can only be still unsolved because: (a) we have no idea how to solve it, or (b) we have no idea how to solve it cheap enough. And the whole "we only need to sit and implement properly the ideas we already have" is crap! Idea-space is infinite, so you can always randomly come over a new idea that allows you to do the same thing you're already doing but at 0.1% of the cost and that instantly changes everything.

Let's say Joe Web comes up with a new idea for building CRUD web apps 1000x faster and cheaper. The saved $$$ from this will end up being shifted to other things. And let's say that 0.01% of the saved money gets shifted to something like cancer research. (Or maybe the shift was more subtle: Joe's colleague Moe got fired from making CRUD apps and then went up to learn to program protein molecular dynamics simulation software that later enabled a breakthrough discovery in medicine.). And at some point this research produces a result. Then Joe Web absolutely deserves some 0.000000Y% of the benefit that society got from a cure for cancer. And that minuscule percent could be a lot! And we have no way of distributing this profit back to idea creators right now. Unless we grant software patents to individuals. (And no, the fact that he simply "benefited from the cure for cancer" is not enough. Maybe he was already extra lucky and neither he nor anyone who cares about would ever have been affected by this disease anyway.)

Even if people create ideas even without reward, it doesn't mean they shouldn't get that reward.

In the end society should serve the interests of the individual, not the other way around! This is why we've created society in the first place and why we continue to put up with it!

You say that people like Doug Engelbart should benefit more from their inventions, and to achieve that we should grant patents only to individuals or non-profits.

But a patent for Doug Engelbart most famous invention - the mouse - was filled, and it was assigned to a non-profit (SRI, a nonprofit research institute), and yet it seems neither he nor the institute got much from it.

As for Alan Kay, from what I can tell, he doesn't have a single patent with him as the inventor (which is always a person, an employer would be the assignee). So how could he benefit from your law?

I don't disagree that it would be fair for inventors to benefit from their inventions, but I don't frankly see how would your proposal actually achieve it.

- first example: that's because a patent shouldn't simply expire if no royalty is paid for it. (As an aside: the clock should start ticking for the first time someone starts selling a product implementing it. And patent royalties should also be paid with mandatory delay of at least 3 years or something: so, for example, an entrepreneur can start a company that uses a patented technology, even if now he can't afford to license it, and only have to start paying for it after he had some time to start making profit.)

- about AK: all his ideas were software related and quite broad. Also, I would guess the he recognizes that allowing "broad software patents" indiscriminately with the current laws would be a total disaster, so he's mostly against software patents, obviously. But in a different legal context he's probably think completely different.

I don't know that much about patent laws, but the parts that I do know of seem totally backwards to me. Like nothing makes sense the way it is, you'd have to rewrite everything from scratch and retrain all the lawyers and judges. Probably because the laws were invented for easily-buildable physical inventions like the steam engine a 100 years ago. And they have no concepts that make sense for "informational products".

You can't look at the behavior of people in the past and say "considering their behavior, such laws would not have benefited them". The simple fact that a law exists and is written in certain way can completely alter the behaviors of people because they know they now can take advantage of it, so they behave differently.

I am personally against software patents NOW, btw. In the current legal context they would be nonsensical an harmful. But change lots of the context around them and they could be a very good idea for the reasons I mentioned in the previous comment.

Probably the solution would be to invent a new concept of "soft idea patent" that has no relationship whatsoever with the concept of "classic patent" and for which none of the current patent laws apply. Then write from scratch the laws for these new "entities". And "digital computer software patents" would be just one of the subclasses of "soft idea patents", each with their separate laws and regulations.

Novelty in the US is largely decided by the courts after patents are granted, and it's very expensive.

India is saying software patents are not novel enough to protect, and directing its patent examiners not to grant them.

Our examiners grant patents left and right with little consideration for if they're novel.

If the patent office can't usefully determine novelty (needing to defer to the courts) then why have a patent office at all?

The same problems affecting software continually affect every other industry. Software is more visible than other R&D but if software needs to be excised from patents then everything probably should.

> If the patent office can't usefully determine novelty (needing to defer to the courts) then why have a patent office at all?

What would be the effect of closing shop and saying no new patents in the United States? I think this would be the best outcome. I mean do patent applications actually help people recreate the invention after the patent expires? If not, why should patents exist at all?

It seems like medical research would probably grind to halt.

The patent office can strike down a lot of obviously conflicting patents, reducing load on the courts.

Patents were created to promote innovation. That hasn't been working effectively in the world of software.

The idea was, in exchange for sharing your idea, the government will protect you. So, you get some profit and a head start, and everyone else gets to build upon your idea after some period of time.

Tech giants like Google lately are not enforcing many useful and innovative patents. They create them as a defense. That says something about their view of software patents.

If you're asking for my opinion on patent reform, I'd drop the term on software patents way lower, like 3-5 years. That's enough time to generate a customer base for the filer and allow others with the same idea to have a chance to compete within his or her lifetime.

I can't speak for other fields. I would not agree that software patent reform means everything needs to be shut down.

>The same problems affecting software continually affect every other industry

Software has it worse than traditional engineering because the field of software engineering is only about two patent life lengths old, and both development times and product life cycles are incredibly short for most things. It makes little sense that a new algorithm gets the same protection length as a better brake system for trains. Shorter life cycles also makes defering to courts comparatively less effective and more expensive, encouraging misuse of the system.

Of course software engineering isn't the only field with this problem, but it's one of few.

Sure, I'd be happy to see all patents abolished. The age of government-granted monopolies should come to an end.

> India is saying software patents are not novel enough to protect, and directing its patent examiners not to grant them

Or it may be saying Indian firms are not producing sufficiently novel software, so there is no net benefit to Indian society in granting them. It could be the majority of filers are foreign companies. Why protect inventions made by outsiders, who will only use it to tax local companies? This may sound far fetched, but historically most nations have gone this phase as they develop: Until they can produce state of the art technology indigenously, IP tends to hamper development, so IP laws tend to be weak. Once a nation starts becoming competitive in innovation, they tend to ratchet up their IP laws. There are studies about this, will try to find them.

(I've worked with the Indian software industry and still have close ties with it. I see even less innovation there than I see in the west. On the other hand, the startup scene is booming, so there's hope.)

India is saying there is no patent because software isn't tangible like hardware or anything physical would be. If the patent involved hardware and the program or software it is covered because hardware is tangible.

For example the Apple iPhone uses custom chips for things like encryption and security. So in India they would accept the patents.

India doesn't see business methods, software, and mathematical method as valid for patents because they are not tangible in real life but more like information.

If they are part of hardware or some physical device that is tangible they can issue a patent.

This is quite different from the US Patent office, and most likely India did it to give small companies access to the same information that big companies use by refusing to patent their software unless it is associated with hardware. If it is all software, anyone can use it.

This is a big attack on companies like Microsoft that use software patents to sue other companies. Suddenly in India, they can no longer do that unless it is tied to hardware in some way.

"This is quite different from the US Patent office,"

Today it's different from US patent office. For most of the US Patent office's history, it was the same.

See:

https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co....

Link must have moved here: https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co....

But yeah I see now that US patent office used to be like India, but now it accepts any patent.

META: Seems like the . is stripped from the end of links.

  https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc.

The State St. is no longer valid precedent. SCOTUS went well out of its way to emphasize that the State St. decision was completely insane and wrong in Bilski v Kappos even as it struggled to come to grips with a coherent definition. Nevertheless, it's been pretty clear that SCOTUS would rule just about any software patent invalid.

I largely agree. However, I'm not sure I agree with you that it's infeasible to prevent pure software patents since folks will just include the entire computer in a description of software. If there's nothing new about the hardware, that part of the patent can just be rejected. If I submit a patent for a better mousetrap that includes a description of the house, won't the patent examiner just reject the application, or instruct that that part be ignore, or whatever the procedure is?

If the whole computer is included in the patent then doesn't that limit the applicability of such a patent somewhat?

Exactly; defendants in an infringement suit can easily come up with the argument that all they did was write software for a programmable, general-purpose computer, and therefore their work can only violate a software patent, and no such thing can be valid in the land.

If there is nothing new about the hardware and that part of the patent is rejected, then it will hopefully be obvious that what remains is a software patent, which is rejected ex facie.

One difference between software and drugs is that the chemicals are fairly unique. If two people have the same chemical then one of them wins. That may not be fair, but at least it's over quickly. With software the claims are so vague no-one knows what's covered and what's not, which leads to the biggest, richest bullies winning based on nothing but legal threats and tiny little companies with nothing to lose acting like stick-up artists.

"Good fences make good neighbours", imagine property law if your claim was something like "the grass by the river with the nice trees" and it was in the middle of a bustling city with lots of businesses on adjacent land, rather than a precisely drawn plan.

The "stupid determination of novelty" as you correctly mentioned is just one factor of what is sick about the patent system. The fact that in many cases damages due to infringement are ridiculously larger than the harm caused to patentees by the infringement, that the resources required just to prove no infringement was actually made can take an innocent company out of business and the fact that there is no penalty on wrongful infringement claims are just a few more.

I expect changes will be slow, as with any system where there are entities that have a lot to lose by making things right.

> software is being protected

Patents don't protect things, they restrict things. The only thing they protect is monopolies.

The reliable determination of novelty is an intractable problem.

Empirically, this appears to be true; anecdotally, i know of at least one patent office that has tried to reliably determine novelty and failed, and i know of none that have succeeded. To justify regulation of innovation, the burden of proof should be on those who think that determination of novelty is feasible to show via demonstration that it actually is.

Why is this intractable? Technical knowledge is continually ramifying into an ever-finer tree of subspecialities. Imo a significant proportion of researchers at the cutting edge of knowledge work in areas whose details are only understood by a small number of people in the entire world (~5-30).

Someone outside of this small group will not be able to reliably distinguish novel ideas from non-novel. Yet it is economically infeasible for a government to hire one patent examiner for every one of these subspecialties (this would require the patent office's budget to be a significant fraction of the sum of all research budgets in the entire world).

Therefore any real-world implementation of the patent system will always have an unacceptably high number of bad patents because insufficently specialized examiners will allow patenting of things which are obvious to the (handful of) actual specialists in the given area.

Pharmaceuticals appear to be a special case in that there is a more crisp delineation between chemicals than between ideas.

Software is an area where many more ideas are composed together into a single "product" than other areas.

Thus, each single patent tends to affect far more products than other industries.

To work around the problem you mentioned, you can encode in law an exemption for software practitioners from patent law. i.e: Instead of restricting the kinds of patents people can write, give an exemption to any trades people you want from any patents.

Software is just math. You can't patent math already.

Software patents are borderline retardation.

I see this repeated a lot, but I've done a fair bit of math, and a fair bit of programming, and they feel very different, so I'm not sure what it's supposed to mean.

"Algorithms are math" may be true, but most software development feels a lot more like engineering.

They're called "computers" for a reason.

Yeah, because they can do arithmetic really fast?

I wouldn't consider adding 1 to a register here and there and taking some conditional branches "math". Modern math (usually) involves thinking about theorems very hard and then writing proofs for them.

Algorithms have existed in the world of mathematics thousand years before computers were invented. From this point of view, computers are just a way to speed-up things.

If the Euler algorithm was discovered today, should it be patentable? What about the FFT? Is there any substantial difference with any "modern" algorithm, like the DCT or arithmetic encoding?

I already said algorithms can be plausibly called math.

Lots of software, and software patents, have little to do with novel algorithms.

It's the algorithms that get patented.

Software is math without proofs :)

Maybe you weren't aware that literally all the computer does is binary arithmetic?

It may feel like it, but you can reduce any computer program to a mathematical expression. Even that distinction feels a little silly and artificial, code almost just feels like a different kind of notation for math. If you can patent code, you're patenting math.

This may seem pedantic, but I really do think it gets to the core of why software patents have turned out to be such a disaster. Math is specifically not patentable, and math coursework is specifically excluded from the scientific background required to become a member of the patent bar (the patent bar specifically identifies mathematics as coursework that does not qualify a person to sit for the patent bar). People are often surprised by this, but if you have a BS, MS, and PhD in Math from MIT, you can't sit from the patent bar (well, on the basis of that coursework anyway).

So what the patent system in the US has done is 1) allow math to be patented, and 2) specifically exclude people with math backgrounds from reviewing patents, 3) scratch head and puzzle about why trivial patents on mathematics are granted.

A lot of things you can get patented are "just math".

Edit: I'm not arguing for patents, but I don't think this particular argument in itself should be sufficient to dismiss a product's eligibility to get one.

In most countries you can't patent ideas, you can only patent objects and manufacturing processes.

The U.S. definition of 'patent' is an outlier.

> First: it simply encourages patents where the entire computer is included in a description of the software, turning it into a product/apparatus patent.

That worry is completely nonsensical.

That would trivially be caught by the patent office.

And it would mean that a competitor could use the software on a different architecture without infringing, making the patent worthless.

> That would trivially be caught by the patent office.

It's actually used constantly in Europe to work around the restriction on software patents.

The problem is that patent offices aren't staffed to do the job that is assigned to them. They would need a lot of full time engineers in each discipline just to sort through the pile.

new inventions aren't suppose to be obvious to an expert in the field. If this was enforced properly the second point would be taken care of with existing law.

Fixing novelty is impossible. Rather, they should just have a shorter lifespan for software patents.

I have to agree. The problem isn't so much that software should be inherently unpatentable, but that there's been such a flood of patented ideas that pretty clearly are independently discoverable by numerous people working on the problem (or worse, are patents of an end rather than a means e.g. the one-click patent) and which keep getting passed through, which results in a patent database that's a minefield rather than a mine of useful ideas.

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