Encourage the USPTO to stop issuing software patents; deadline September 27
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I wrote my own:
I believe software patents have deleterious effects on both an individual and societal level.
As a software developer, my job is to encode symbols within a computer. Simply to represent an idea in the precise medium. Then I manipulate those symbols in whichever way seems logical.
To patent that process, to claim certain methods of writing and thinking are off limits, does not contribute to a free society, no matter how much money it allows an entity to make. Because a computer is only a tool for the mind, as a hammer is an extension of the arm. Patenting patterns of codified thought makes no more sense than patenting swings of the hammer.
I would encourage you to reduce or eliminate the use of "Software Patents".
I am a talented computer programmer, of the sort whom one might expect would be the beneficiary of such patents. Instead, they are a disincentive for me to do any work in the field. I do not believe it is possible to release any significant piece of software in this country without exposing myself to undue legal liability through patent infringement.
This is not because my ideas are not original, but because too many unduly broad patents patents have already been issued. If properly challenged, many of these patents would fall due to obviousness or evidence of prior art. But lacking the resources to mount such a defense, I simply avoid making creations that would otherwise be of benefit to society.
I do not believe this is the intended effect of patents. I and the country would benefit from a better law.
Looks like the deck is already stacked. Are there any companies or elected officials with significant political/financial capital aggressively campaigning for this? This movement needs a champion to make this topic relevant to bureacrats and I don't know if Stallman's the guy.
However, the purpose of patents is to promote progress by motivating people to invent. So what matters is the input to the process, i.e. the human activity that eventually leads to a working machine.
The patent system was designed for human activities that involve so much time and effort that people might not do them without an additional incentive, i.e. temporary monopoly. Picture 18th-century mechanical engineering. Building several different designs of a machine to see which works best would be a monumental task. It would be much easier to search the patent database and find something someone else invented, and cheaper to license it from them.
Imagine for a moment what would happen if you gave everyone a machine such that you could simply drop a diagram of a mechanical invention into it, and out the other end comes a working implementation. That would totally change the game. Invention would require much less effort. Everyone would be doing it without consulting the patent database, and the huge influx of inventors would overwhelm the patent office, making it impossible to find which inventions in the flood of incoming applications are novel and nonobvious.
This is what happened with software. Millions of people have these magic machines on their desks and in their backpacks and briefcases. No patent incentive is needed, just as none is needed for mathematics.
The argument, then, is that patents on software are A) unnecessary to encourage innovation and B) actively discourage innovation. The argument for A) is that plenty of software development happened prior to it being patentable, few software developers or startups consider patentability when creating new products, software itself is well covered by trade secret and copyright protection, and the patents themselves contribute basically nothing to the world's store of knowledge about software. The argument for B) is that most software patent suits are complete BS and are launched either by trolls or in an anti-competitive manner rather than as a result of any sort of actual "theft," any piece of software could potentially infringe on hundreds of patents, patents themselves tend to cover "inventions" that anyone else solving a similar problem would come up with, and that patents themselves thus tend to either discourage people from even trying new ventures, out of fear of being sued, or serve to drain resources from companies that actually produce products, tying up resources that could actually be used for innovation. It's also worth noting that the 17/20 year term of a software patent is completely out of whack with the pace of innovation in software.
So you can try to split hairs around saying that some software patents (say those around non-obvious compression schemes) are legitimate, but I'd guess that something close to 99.95% of software patents are trivial/silly/should never have been granted, so in this case I'd argue that's totally worth throwing out that 0.05% of "good" patents in order to ensure that we get rid of the other 99.95% of them. I'd rather see that happen than try to defend that 0.05% and end up keeping even 5% of the current amount of BS patents.
Everybody believed that it does work without actually examining the evidence for the other industries.
Where is that evidence? The US seems to be innovating quite a bit in the software area compared to other countries.
And on the other hand, how often have you heard or read about programmers and companies worrying about unknowingly infringing on software patents, about companies getting sued by other companies that turn whole fields of software into minefields, or about developers or companies that couldn't (afford to) implement the best known algorithm for an application, because someone else had been granted a monopoly on using that algorithm.
At least in the US, you can't create a start up and just create a knock-off of an existing product: you are forced to innovate because of software patent laws. This is probably why the US is striving while countries that don't have such laws such as Chine hardly innovate at all.
I'd also argue that it's mainly copyright law and trademarks that prevents the kind of product piracy that is prevalent in certain countries with a less developed legal system, at least with regard to software products.
That's not what I'm arguing. All I'm saying is that given the fact that US is one of the most innovative countries in the software area, the burden of proof is on those who claim that the software patent system is broken.
This looks like a good place to start: http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_d...
I'm all for a reversal of the patent stupidity in the software sector, but unless it is retroactive to some extent I can see it scaring away innovators.
Nobody is safe against patents, not even Microsoft, IBM, Google or Apple. And patents are only for 15 years so it's not like you'll have to wait 100+ years like with copyright.
But personally, I don't think it's going to scare away many innovators. As it is, many American software patents do not hold in Europe. Despite this, American companies rarely seem concerned that their 'patent disclosures' will be used against them by their European competitors.
I wager this is because they are not truly innovations of the sort that require protection in order to encourage their creation.
Software does not consist of only mathematics. One might use mathematics as part of understanding how a particular piece of software works, but that is not really different than the way one might use mathematics to understand how an electronic circuit works.
If you think your software is doing anything else, you're looking at an abstraction on top of something mathematical.
* - OK, OK, they can also generate heat, RF, and other byproducts. Those things have little to do with software.
All an electrical circuit can do is physics. Therefore, electrical inventions should not be patentable as all they are is physics.
This is why software patents are always framed in terms of a machine performing an algorithm. The "machine-performing-an-algorithm" construct is not itself mathematical, though it does rely on mathematics. The FSF's argument there is that having a machine perform an algorithm is now sufficiently obvious to fall under the obviousness restriction (while perhaps it was not so obvious back in the 1950s). This leaves only the algorithm itself, which is mathematical.
Hypothetical #2. I come up with the same idea as in #2 but conceive of it as a series of steps applied to a digitized signal. Each step is done as a little algorithm. It turns out that there is an isomorphism between these algorithmic steps, and what the circuit components in hypothetical #1 do. In other words, I've essentially conceived it as a simulation of a physical circuit.
Why should #2 not be patentable? It is in pretty much all meaningful ways the same invention as in #1. It is just implemented different. In #1, it is implemented by taking (non-patentable) physics building blocks and putting them together in a new, useful, non-obvious way. In #2, it is implemented by taking (non-patentable) algorithmic building blocks and putting them together in a new, useful, non-obvious way.
Conversely, would you argue that anything capable of being simulated via a computer should not be patentable?
Suppose I have an algorithm for doing some useful transformation on an input. Suppose we were in an environment in which this algorithm could not be patented. I could instead sit on the algorithm and build a circuit in hardware accordingly, patent the circuit, and sell that while keeping the algorithm secret. Ignore that it could be reverse-engineered.
Is that scenario good for anyone? Probably not. It would be better for everyone if the algorithm were made public, even if it were simply unused for the patent term, than if it were to lie hidden on a disk somewhere. Why does it make sense to grant a patent to the circuit, but not the algorithm?
I admit, that situation is a little inconsistent. This is partly because the whole concept of the patent is inconsistent, but we keep it around because we haven't found a consistent way to fulfill the same purpose. Consider a third option, though:
Suppose that the guy with the useful algorithm is Joseph Fourier. He patents the software techniques to produce Fourier series. Now, anyone making software that relies on Fourier series needs to pay Joseph Fourier, which is fine. Anyone who builds a hard circuit would likewise need to pay for the privilege, due to another patent. What about a person executing the exact same software instructions by hand?
Clearly the person may execute the algorithm by hand without paying. Why should they not need to pay, when the only thing the software author has done is the convenient shortcut of using a computer? In order to be similarly consistent, we'd need to require the manual executor to pay. Unfortunately, the manual executor is every collegiate-level math student.
Knuth argued well against patenting that: http://progfree.org/Patents/knuth-to-pto.txt
Crazy isn't it?