Comment by riskable | Hacker News Reader

Comment by riskable | Hacker News Reader

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Yes. This, exactly.

By patenting this language feature Apple has very clearly stated that they are "making a claim of ownership" as it were of this feature across all languages and non-derivative implementations.

...which is a perfect example of why software patents shouldn't exist in the first place. One could implement this feature in any number of novel, unique ways therefore the patent is nothing more than a claim on a broad concept rather than a specific implementation (which is what patents are supposed to cover).

The paradox of patents on software is this: If the patent covers what it's supposed to cover (a specific implementation) the patent will be useless because anyone could implement what amounts to the same thing using different methods, languages, whatever. If the patent covers a broad concept it will prevent anyone from using it or innovating in that entire domain until the patent expires. Completely defeating the purpose of having patents in the first place. It will also likely (after millions upon millions of dollars wasted in lawsuits) be ruled invalid as being overly broad.

Software patents are inherently a bad idea and should be done away with.

We can find out if apple is serious about keeping it open by asking them to turn over those patents to an entity like RPX

Patents _are_ supposed to cover inventions, not implementations.

They're about innovating technological abilities, and disclosing them in exchange for limited monopoly; it's not about specific products or specific implementations.

If it were just about implementations then all patents could be easily circumvented and there would be no reward in exchange for the full disclosure of a new invention.

(Design patents do cover specific implementations at the morphological level.)

Patents are about how you do something, not what you do.

This patent is about how Apple's compiler implements some programing language features. It does not protect the programming language feature itself. Another compiler that employs a different 'how' can implement the same programming feature. So, if you don't want to infringe on this patent, you are forced to invent (or use) another way of doing the same thing.

They didn't invent anything anymore than I invented the peanut butter sandwich i made yesterday

Can't you make a pretty similar argument about all types of patents?

it wouldn't be quite the same because software does not have physical material properties. IMO this difference is crucial.

To me software patents and patents for, for example, real world engines are the same. It's okay not to like patents, but separating software patents from the rest makes no sense.

Ah, but you are overlooking the key difference: you cannot commercialize an engine without building it. With software, commercialization costs "nothing" [1].

A smaller company could come up with a unique engine design, but without patent protection, a bigger company could just drop by and take the design and build it themselves. In other words, the larger company would get R&D "for free". In the engineering world, only by "building" the design can you make money (in general).

So without patents, there would be no reason for smaller companies to exist, simply because such companies would have no counter-measure for their lack of financial resources.

[1]: Nothing here means "no physical resources". The big costs would be labor and compute (depending on the idea). But I would argue that labor is a bigger cost for a company that would like to build an engine at scale (initial design, manufacturing, testing, supply chain, and so on).

I don't think that's really different between hardware and software. Even in software, the bigger company often has a decisive advantage in marketing. The history of computing is littered with the graves of small companies crushed by behemoths.

So that might actually be an argument in favor of software patents, if they actually did protect the interests of small companies. Unfortunately it's almost impossible to implement a new idea in software without using a lot of other recent ideas at the same time, and if all the recent ideas are patented, no one will be able do anything that isn't 20 years out of date unless they have a defensive patent portfolio of their own.

> I don't think that's really different between hardware and software.

Marketing budget is something inherent in small vs. big companies in all industries, so I do not agree that the fact that software and hardware share this makes them similar.

Your example does demonstrate a benefit of software patents in theory, but is this how they are typically used in practice?

”With software, commercialization costs "nothing””

So, I invent a method that dramatically improves search engines. How do I commercialize it for “nothing”, if I’m not one of the few companies with access to a huge data set, and cannot protect my invention with patents?

Did you read my footnote?

And yes, there are definitely exceptions, but my point is that the general case in software != the general case in engineering, which is why you cannot directly compare the effect the patent system has on the two fields.

So-called software patents are always drafted as machines that can perform the claimed actions. These machines are comprised of one or more hardware components, including some hardware components that can execute machine readable instructions.

(There really is no such thing as a software patent.)

In Europe we do manage to make that distinction, though it is nuanced, and it specifically excludes the "program on a media" or "program in the physical memory of a computer" methods of trying to make all software appear to be physically technological.

True, through many well-drafted US "software patents" can be successfully prosecuted in the EU without too much trouble.

Patents were meant to protect the person who invented a particular physical object or physical process.

Patenting software amounts to patenting algorithms, which is basically patenting math. It's far broader in scope by its very nature. On top of that, it's not hard to get software patents on things that are obvious, often by simply patenting "$well_established_process, but in software".

A key difference is that software is already covered by copyright. Identical copies violate copyright for software. For a mechanical device, identical copies generally don't violate copyright (trademarks, text, etc aside).

Mechanical devices need patents for the design, as a competitor can easily re-implement an absolutely identical design. It's often clear by inspection how it's made. A different device that accomplishes the same task in a slightly different way doesn't infringe on the patent.

Software already has protection against identical copies through copyright. The key difference is that software patents go farther; they claim to cover the concept. Any implementation of the concept violates the patent. Re-implementing software to accomplish the same mathematical concept in a different way still violates the patent.

Patents protect how something is done. Copyrights protect what you make (e.g.,. expression of idea).

the “expression of idea” is precisely “how something is done” or am i missing something...

idea: superhuman who flys around saving people

expression: superman, alternative expression: ultraman

both protected respectively by copyright (imagery, stories, movies etc)... do they also need patents?

i think the answer here is “no” and it’s the same for software... but again, please correct if i’m missing something

edit: spelling/formatting

>Can't you make a pretty similar argument about all types of patents?

Yes, yes you can.

While I'm sure that you can find examples of software patents that have patented a specific implementation of a given idea, you can also find mechanical patents that claim a broad concept. These patents exist for two main reasons: 1) They discourage competitors from attempting anything within the broad concept. Even if a judge would probably rule a patent unenforceable, the risk of litigation is enough to make legal departments recommend against doing things that are covered by the patent. 2) They give companies ammo when they do get to litigation. If Company A sues Company B for infringement on one of its patents, Company B can come back and countersue because it holds a large war chest of other broad patents. Even if most of them are unenforceable, each one poses its own risk that some part of it is held up and the infringing party is liable for damages. The quantity of patents involved (and the legal costs for litigating such a case) help push companies into a quicker out-of-court settlement.

The problem as I see it is not with software patents versus mechanical patents. It's with broad patents versus specific patents. There needs to be a mechanism for easily challenging the validity of a patent after it is issued.

Edit: For context, I'm a mechanical engineer who's worked on design & development of technical consumer products.

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