Told to remove blog posts describing patented algorithm
sites.google.com
sites.google.com
That being said, one of the fundamentally unfair things about the legal system is how expensive trials are. Even if the other side here has no case, they might be able to haul you into court and run up expenses for you. Maybe you can become a cause celebre of the anti-software patent blogosphere?
It is a shame that the patent system is essentially inaccessible to the "little guy" without becoming a celebrity charity case or piquing the interest of someone like the EFF. Here's hoping that you can do much in your coming career to remedy this.
It's got all the elements hackers love: software patents, an underdog, free speech and an interesting technical problem.
However, now someone must develop the code. It'll take time. When it is done there will only be passing interest in the whole issue. This is interesting enough that it'll get some action on blogs over the next week, but I don't see this becoming a long-term win for the original author. Just Shazam and the blogs.
[1] One example is "How I Got Sued by Facebook". http://petewarden.typepad.com/searchbrowser/2010/04/how-i-go... . It combines elements hackers love: the rights to your information, an underdog, free speech, and an interesting technical problem (indexing all of Facebook). But no public databases of Facebook user data sprung up as a result.
As other mentioned, the idea with patents was to offer people a limited time monopoly on their innovations in exchange for publishing them so others could use/enhance these ideas instead of reinventing the wheel over and over. I have not seen one instance where this works out for software...
No they have a patent the idea of music-matching, not the implementation.
I could have a patent on the idea of a car that defies gravity - and you pay up when you actually invent a flying car.
In software patents, the implementation is described in such general terms that a lot of the time, any implementation can be said to use the method described in the patent. This is my biggest problem with software patents: once you abstract your solution enough, it isn't of much use to anybody, hence the value of the patent to the general public is null while it still allows you to block out competitors that want to find a solution to the same/similar problem although your patent is of no help to them actually solving the problem.
It is this skewed relationship that drives me crazy. Licensing a software patent only allows you to come up with your own solution a lot of the time, it does not save you the development cost.
If you license a patent for some industrial process it saves you huge amounts of research cost so licensing the patent is actually attractive.
Software should only be patentable if the patent provides actual value in solving the problem it claims to solve. Since useable software implementation are so specific, this may rule out patenting software at all.
No code, no description of how to render it - just the idea of taking an everyday action (turning over a page) and using it to do the same thing on a computer
You can have a business method patent, eg look at the prices charged by various retailers and buy the lowest one, or even a patent on the plot of a novel. Both of these have been patented in the US.
Your 'invention' no longer has to be workable for it to be patented nor do you have to demonstrate a working implementation.
That's the issue with a lot of software patents on things like H264 - the patent can simply be on the concept of compressing video, you don't have to invent a particular encoding scheme.
What this means is that patents only work for cartels of large companies forming a patent pool to keep a technology (eg. H264) to themselves and patent trolls who have no other business so can't be violating any other patents.
For anyone else - even if you have a patent on a real invention, and can afford to defend it in court, you are likely to be violating dozens of the large company's patents (how could you know) and so are going to lose.
This is indeed the exact opposite of how the patent system is supposed to work. But it is none-the-less a description of how the patent system is more and more winding up working.
(Besides, algorithms cannot be patented in the EU, so it is impossible that this code violates any patent.)
The UK practice had substantially changed since I left (after Macrossan, http://en.wikipedia.org/wiki/Aerotel_v_Telco_and_Macrossan%2...), the UK Patents Act has harmonising terms such that various sections are interpreted to match EPC articles. In the EU software patents were ruled out "as such" and traditionally the loophole was that as long as a "technical effect" (beyond that expected from mere computerisation) was demonstrated in the application of a patent then the software patent was allowed.
Generally the EPC and UKIPO treatments have differed as software patents were actually ruled out "per se" in UK Patents Act 1977 S1(1)(d) referencing 1(2)(c) and UK has been stricter in interpreting this (see Macrossan).
UK law also states that [pure] business methods and mathematical algorithms are unpatentable (again Section 1; see examiners manual - http://www.ipo.gov.uk/practice-sec-001.pdf) amongst other things.
However historical quirks meant that compression algos were allowed in certain areas (imaging) that wouldn't be allowed unless they were couched in the right way (that's my interpretation, I couldn't understand why they were granted).
The Macrossan tests are spelt out clearly in the above Patent Examiner's manual link as is the UK practice (but this can be amended by court decisions).
http://en.wikipedia.org/wiki/Software_patents_under_the_Euro... and the corresponding UK page appear to be thorough treatments for those that wish to read more.
Implementations can vary in trivial ways (eg. different variable names), substantial ways (eg. different languages), in representation choices (eg. a graph as a list of arcs; as a matrix of connections; as pointers/references from data structure to data structure; using "pointers" that are indices into an array etc); in execution choices (recursive; iterative; immutable; mutable); in a million details that are non-significant for the algorithm. Ask two people to implement Dijkstra's algorithm; they're unlikely to produce identical code. (Although, when marking at uni, assignments were often strikingly similar - not always due to cheating, since one of them was almost identical to code I'd written, and no one had seen it. There are often only a few obvious ways to approach a problem and convention dictates the other decisions. But I digress.)
Now, there still a problem. Hcho said that while programs could not be patented, algorithms could. So, imagine you patent some algorithm, and later I write and commercially use a program that implements that algorithm.
How the hell could my particular use of your algorithm not infringe your patent? Yet it is my understanding that it doesn't, on the grounds that software is somewhat immune from patent infringement.
Either I missed something, or something is amiss.
I think Hcho meant that when you draft the patent, you draft it in terms of an algorithm - though I also think he was speaking tongue in cheek. You could draft a patent that was specifically of one particular implementation, but it wouldn't give you much protection. Sometimes, people will describe the algorithm, and also supply a particular implementation (to prove that it really works). A long time ago, it was actually a requirement to supply a working model with each patent, and there's a museum of them somewhere.
Aside: Actually, pure algorithms aren't patentable, because they are too abstract. For a software patent to be valid, it has to be inventive (non-obvious to one skilled in its field) with respect to the state-of-the-art (at that time it was invented). Bilski, the recent (US) patent case, held that you have to assess this inventiveness of the algorithm and its application to a problem as a whole. It's not enough to apply an algorithm in an obvious way (no amount of "post-solution activity" helps, if it's not inventive). I think this distinction of algorithm vs application is similar to product vs market. An algorithm is a solution, but it's not patentable unless it is a solution to a problem - and that taken together, is not obvious.
A famous patent law case (whose name escapes me) involved a well-known chemical that was patented as a fertilizer. It wasn't previously realized that it could be used as a fertilizer - this was a non-obvious application of a known thing.
OK, I'm sure that was more than you wanted.
Algorithm:
Algorithm Maximum
Input: Two numbers M and N.
Output: The largest number of M and N.
if M > N, then return M
else return N
// Returns the largest of m and n.
int Maximum(int m, int n) {
if (m > n) return n;
else return n;
}
Does your algorithm automatically become software at the time of completion of my compiler?
Or does it become software only when its compiled down to machine code?
Do you have something more substantial?
Meta: funny how this comment is doing karma oscillation (so far: + - - + -). But I would've like people tell me why 3 of them thought I have "crossed the line".
I'm pretty sure Deestan is being facetious here.
Maybe I should add a sarcasm tag or something in the future.
Anyway, I think we have a "sarcasm bias". Meaning, when I mean a sarcasm, it's obvious and anyone who doesn't see it is an idiot; and when you mean a sarcasm, you'd better put the sarcasm tag, or we can't perceive your tone, you idiot.
(Just to be sure: The tone here is sarcastic, but I think the bias I speak of is real.)
Patent Trolls LLC
It is a very lame example, IMO.
BTW, you should get carefull since the above piece of software is probably copyrighted in the US, with other patents pending for the rest of the know universe. Oh wait, can you hear the patent police knocking at your door ? Too late mate.
Now, I'd like you to explain to me how your way of sorting integers is not a program. Or how your program is not a way of sorting integer.
No matter how I squeeze my brain, I still fail to see a difference between an algorithm and a program. To me, that's only different labels for the same thing.
For a real lif example: http://en.wikipedia.org/wiki/T_258/03
I don't see any actual difference between a program and an algorithm. If you do, please define both, and show me that those definitions aren't equivalent.
Now, if there isn't any actual difference, I wonder how regulators managed to forge a legal one. That would be silly. Anyway, if they did make a legal difference, I'd love to have specific references.
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2. Check to see if "Cookie" exists in map
3. If it does, and it's value is X load record X
from database table N
4. Otherwise, insert a new record in table N and
create a "Set-Cookie" header in the response
What patentese means by inventive technical step is changes to or creation of algorithms.
"schemes, rules and methods for performing mental acts, playing games or doing business," and programs for computers;
This how the patent lawyers interpret this clause. Companies I worked for pays £xxxx to their employees for patents. I've sat in some of the commitees which decides a patent is worth pursuing. My experience is the inventive step almost always involves some tweaking in existing algorithms.
If his goal is not to actually implement the algorithm, but just to discuss or understand it, he can use the lawyers to his advantage. He's already received the two US patent numbers, which contain published (and freely publishable) text describing the algorithm in great detail. And, since the lawyers are interested in the international implications, it should be simple for them to provide a list of (or better yet, the full text of) all international patents granted or applied for.
My point is not that software patents (or patents in general) are good or bad or harmful or useful. My point is that, for better or worse, a patent represents an exchange-- the inventor is granted a limited-time monopoly on the implementation of an innovation in exchange for publication of the details.
Here, the lawyer is demanding that he not discuss the method whose "publicness" is the public good supposedly given in exchange for the patent.
Although I know nothing about European patent law and almost nothing about US law, here is the relevant US code:
"Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent," (emphasis added). [1].
It seems to me the issue would be whether writing the code for patented software constitutes "making" it. Who knows. The patent system is such a joke.
[1] http://www.law.cornell.edu/uscode/usc_sec_35_00000271----000...
That's the problem with software patents. The patent must be published - that the whole point. But in software writing down the algorithm is also making an implementation. It's like the pornography laws that defined looking at an image on a computer screen = producing an image and therefore equivalent to being present when the act took place.
Patent system's primary 'deal' with the inventor is "time-limited monopoly in return for a disclosure of how you did it".
Leaving aside the question on patentability of software and algorithms, I am sure talking to FFII, EFF and similar organizations might help gathering traction for a proper pushback.
When it comes to patents - the fact that your software is non-commercial, or that you invented it independently without knowing about the patents does not matter.
Unless you can prove you created the infringing work before the original patent applicants did, in which case you can invalidate and/or take over the patent, patent rights are fairly absolute, and have nothing to do with derivative works or anything like that (which is why software patents suck so much....)
Patents are granted via application, and apply unilaterally, regardless of how the infringing works were created. The only defences in general against patent infringement are a)your product does not actually infringe on the patent because it's different enough and b)attacking the validity of the patent itself.
Contrast with Copyright, which is granted automatically, and independent creation of similar works (even identical) is permissible, as long as they were truly independent and not copying each other.
(This is why clean-room reverse-engineering techniques, where one group revere engineers the software and documents it's function, and a completely separate group who's never seen the original work writes new code to those specifications) work for software when it comes to copyright, but not against patents.
But then I thought Shazam might just be another victim of this messed up patent system. On the other hand, they're making profit out of it and favouring and legitimating Landmark Digital Services on the way.
What do you think?
I'd also speak to a different IP lawyer, one who is familiar with software patents. You shouldn't have to pay for an initial consultation.
EDIT: You could also speak to your local EFF. They'd have better advice.
If as you say your steps were a priori obvious and trivially implemented and were at the time that the relevant patent was applied for (or relevant invention made in the US) then the patent is very weak and a citation against it should be easy to find.
What appears to be the case is that professionals working in the field for a substantial time were not able to solve the problem easily (eg 2Bdecided's comments).
In short you should give yourself more credit.
TIL: AVIsynth is a script based video editor.
It's seems like it would be trivially easy to release this source code given the way the patent is described.
This source code does pattern matching for audio, sound and music. I looked at the patents in question. They only discuss this method for use with "audio files", "audio samples", "sounds", and "music".
However the patent doesn't cover other types of waveforms with changing frequency and amplitude.
With that in mind, couldn't you just change the language used to describe what you code does so that in now describes other types of waveforms that are NOT sound, music and audio?
It seems to me that patent lawyers can either patent the implementation or they can patent the application of their implementation. Simply changing the application of the implementation you coded in a weekend would mean that the patents cited no longer apply to the code he wants to publish.
Also, if these lawyers have never seen the code in question. How are they going to know you released it if it somehow gets released anonymously?
I have to say, the replies from engineers who have spent some time figuring out how the patent system works have been enlightening and interesting to read.
But none of this matters unless a well funded group (maybe the EFF, maybe some businesses who want to challenge this patent) decides to pick up the cause and fight. There is no way a programmer who coded something in a weekend and put it on his blog is going to be able to go up against a well funded patent holder.
The merits are irrelevant, seriously irrelevant.
This is what depresses me so much about the US legal system. While the law around software patents is absurd, the problem isn't really that software patents exist per se (1), it's that stupid patents are granted and that it is brutally expensive in terms of time and money to fight them.
(1) I do consider software patents to be a failed experiment. Sometimes the implementation is so bad that we can say "tried it, didn't work" even if in theory it could have been done better.
Similarly, the client-side software makes an unauthorised copy of the music as it records it from the environment to do the test. This seems like it could be contributory infringement on the part of the software writers.
Does anyone know if the record companies ever tried to go after them on these grounds?
It seems to me that the law sides with the public by forcing the inventor to choose between patent and copyright. If the inventor chooses patent, his invention has protection, but the public is free to share information about it. Indeed, to obtain a patent, the inventor must fully disclose the best way he knows to make and use the invention. On the other, hand, if the inventor chooses copyright, his particular expression is protected, the public is not free to share it (republish it), but the underlying ideas behind his invention are not protected.
So for instance, a musician could patent his unique method of strumming a guitar and he could copyright his music recordings and explanations of his strumming method, but has no way of preventing public discussion generally of his strumming method. His invention does not mean that there can be no more learning and innovation in the field of guitar strumming.
Similarly, a software maker can copyright his expression (source and object code) of his work, and patent the use of his work, but he cannot (should not) prevent public discussion of his work generally.
To hold otherwise would mean that intellectual property (IP) holders could stop all learning and progress in the areas in which they hold their IP. But the purpose of IP is exactly opposite. The US Constitution says that Congress shall have power "To promote the Progress of Science and useful Arts by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (US Const., Art. 1, Sec. 8, Cl. 8)
The musician example is pretty much bogus, because method patents have been pretty much disallowed, though there is a movement to get them accepted. Method/process patents would bring all innovation to its knees.
Also a misconception about copyright. You can have a copyright without publishing the code, although if you publish it without a copyright, it may be in the public domain. Code copyright is used as a defense against duplication, not innovation.
> Similarly.. Yes indeed.
there are important issues on the line here and it makes me sad that so many people feel like they need to walk away because of the possible legal expenses.
i know it's easy for me to say this as i've never been sued myself, but for once, just once, i'd like to see someone fight back against something that is so clearly wrong.
BTW I thought there are no software patent laws in EU or EU member states. Just USA and Japan were on the road to insanity some time ago.
It doesn't say directly the description is a problem. IMHO it's the whole blogpost, because it contains code.
Probably because Dan didn't title his article Creating Shazam in Java
License: Research Purpose Only
Any patented invention can be used for research pupose!
To quote from wikipedia: A patent being an exclusionary right does not, however, necessarily give the owner of the patent the right to exploit the patent.[13] For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.[13] If an inventor takes an existing, patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement.
Add few new features
Or devise some novel features that would allow this marvelous invention to interoperate with existing software!
Then patent the combination and fuck them with it. >:D
This is a grey area under the EPC - research is allowed but commercial use is not.
Consider: If the invention is a measuring device used in a particular area of research then that doesn't mean you can rip off the invention and claim it is for research purposes.
Generally I'd say if you built the invention just so you can use it then that's commercial.
I made up my mind, and currently, I think the whole patent system should be abolished.
Some may think we should be safe if software patents are abolished, but we're not. Make a bit of Arduino based hardware that happen to infringe a patent, and you're screwed. In short, patents are hampering the rise of Free Hardware, just like it does Free Software.
It is past time we examine the effects of patents rigorously, or listen to people who have.
I'm not pro-patents on everything, but pharmaceuticals is a case where the patent bargain seems to produce benefits in terms of drugs that otherwise might not be developed.
Against Intellectual Monopoly[1], shows rather strong empirical evidence to the contrary: drug development thrived before patents arrived, and didn't accelerate after. They may even have slowed down.
Your argument is appealing, but most probably wrong.
[1]: http://levine.sscnet.ucla.edu/general/intellectual/againstfi...
Also, I wasn't assuming any kind of 'artificial encouragement'. I was talking about firms spending hundreds of millions of dollars researching drugs, and wanting to earn that back (and, obviously, more) through patent protection. There's nothing artificial about the kind of encouragement that comes from wanting to recoup hundreds of millions of dollars.
It looks like you think that for pharmaceutical to thrive, it needs corporation to be "encouraged" to invest lots of money. You also seem to think that patents are a major provider of that encouragement. If so, the introduction of the patent system should have accelerated innovation.
Empirical evidence shows that it didn't.
I see only 2 explanations: either patents are not an effective encouragement (compared to already existing ones), or their disadvantages nullifies the additional encouragement.
Forget the abstract arguments about corporations being "encouraged" or whatever you think I think. Just tell me how it would work.
If it helps, imagine that you run a pharmaceutical firm, and you have the choice to spend hundreds of millions of dollars researching a drug which, once perfected by your researchers, is not owned in any sense (even temporarily) by you, but rather immediately becomes a generic commodity worth fractions of a cent per unit, and which cannot possibly earn you back the money you spent developing it. In that situation, would you start the research? And if not, where will the new drugs come from?
Ha ha, that's the beauty of it: I don't know. I just know it works. I know it from a source[1] which I consider reliable. And that source presented empirical observations which strongly support my view.
You keep talking about how it would work, doing what's amounts to a thought experiment. That's valuable, but not nearly as good as actual observations in assessing how the world works.
From the dawn of humanity, the Sun has been observed to rise from a direction and set to a roughly opposite direction. Why? How? For a very long time, no one knew. But only a fool would contradict that observation just because what he thinks of the sun doesn't fit what everybody sees.
In short, when your view of the world doesn't fit the observations, update your view of the world.
Now, I see very few ways in which you could still disagree with me: (1) You think I misreported my source. (2) You don't trust my source. (3) You know of very strong evidence which support your view and not mine. So which it is?
[1]: Against Intellectual Monopoly
What countries are you talking about, what years, what drugs? How did the companies cover the cost of research? What was in it for them? Why did they do it?
I am perfectly willing to amend my views but so far you have done nothing but say you have evidence. Show me! I don't have time to read your source but I am happy to read what you quote as relevant.
Ah, now we're talking. So, chapter 9, page 247 http://levine.sscnet.ucla.edu/papers/imbookfinal09.pdf
""" You may wonder why we are offering all these details about specific countries, patenting of chemical processes, and pharmaceutical products. For a very simple reason: if patents were a necessary requirement for pharmaceutical innovation as claimed by their supporters, the large historical and cross country variations in the patent protection of medical products should have had a dramatic impact on national pharmaceutical industries. In particular, at least between 1850 and 1980, most drugs and medical products should have been invented and produced in the United States and the United Kingdom, and very little if anything in continental Europe. Further, countries such as Italy, Switzerland and, to a lesser extent, Germany, should have been the laggards of the pharmaceutical industry until recently. Instead the opposite was true for longer than a century."""
I fear you would have to read "all these details about specific countries" if you want anything more substantial. That's 7 pages (from 241 to 247).
"the total cost of bringing a new drug to market [is] around $800 million, in year 2000 dollars... [T]his figure suggests a spectacular increase in the cost of innovating. This increase is due, mostly, to the capitalization of the longer and more expensive clinical trials the FDA requires."
It may well be that patents were not always necessary for drug development. It is lazy thinking to conclude from this that they are not necessary now.
Correct. We may want to test for that, if at all possible. Also, if we manage to reduce the costs of clinical trials, we may make that point moot. But in the end, I fear we will have to set priorities, and make compromises. I just hope that it will be based on rational judgements, instead of political stances alone.
I don't know. Nor am I aware of any study which shows regulation's effects, or lack thereof. I'm just saying that if regulation has benefits, they should be compared to the drawbacks before we forfeit them. If it has no benefit, of course get rid of it.
Anyway, as I said, I don't know a thing about pharmaceutical regulations. If you do, a few pointers would be welcome.
This assumes that the cost of developing drugs has remained constant, of course.
Not that I don't like being healthy, but the new pharamaceuticals are just stuff that makes you not die, rather than cure the disease and it is developed only because the patent on the old stuff is on the verge on running out.
A better way would be by removing all the nonessential regulation that makes such medicine so bloody expensive in the first place.
And I'm sure that if your children developed some terrible illness, you wouldn't want to use any pharmaceuticals to keep them alive longer, because - as you say - the disease might get them in the end anyway.
"Stuff that makes you not die" is, as you point out, obviously worthless to everyone.
My point isn't that pharma companies don't make money. It's that if you took away patent protection, they wouldn't invest in new drugs, because they would never earn anything on those investments.
Your point here is wrong. Unless you can tell why the empirical evidence I speak of is inconclusive or non-existent, I suggest you accept it.
Name the drugs.
edit: Also, explain (as I keep asking you to) how it is that the companies are to earn back the money spent on the R&D investments, if there are no patents. You say there is plenty of empirical evidence. Tell me how it is done.
Devoid-of-content comments typically get downvoted. Your agreement could more easily (and more influentially) have been shown by clicking the "up" arrow next to loup-vaillant's comment. Higher-voted comments bubble up and lower ones fall, they're not sorted chronologically.
It's too bad such anti-innovative behavior is even legal.
It might be a nice idea to integrate music identification with CDDB I think.
Google has a similar system that they are using to prevent the use of copyright music in youtube clips (and they also have patents for their method). I suppose many other systems exist to do the same things. Roy should publish his code. Death to trolls.
Which will get the word out to practitioners in this field ! I currently cant do that since i am on a *.edu ip