Ask HN: Why Are Software Patents So Awful?

Short & sweet: Software is just lambda calculus, and the USPTO has already decided math cannot be patented. It is bizarre they would make such a gigantic oversight.

Longer and more pedestrian: Computers are a sandbox that we've created ourselves. Programs are just a set of instructions to tell the computer what to do, and every possible thing a computer can do is already known and limited by the sandbox we have designed. To claim that a certain set of instructions causes the computer to do something more novel than any other is nonsense. It's all just moving bits around.

Down with software patents.

I don't entirely agree with that argument. I do agree that 90%+ of all software patents are garbage, but it does take legitimate insight to design something like a better video encoder, for example.

The incompleteness theorem (and a few others) define the boundaries of what a computer can do, but defining the boundary of a space and exploring it's interior are entirely separate endeavours. Some types of computer programs are harder to write than others, and some have more interesting effects than others. It's not unreasonable to use the patent system to reward explorers for finding the interesting parts of that space, just as inventors explore to find interesting parts of the space of all possible mechanisms.

The real problem is that the rules of our patent system are pretty broken for software patents, and the USPTO is terrible at finding and understanding prior art in practice.

Thanks much for your reply. Turing’s application of Godel merely says that there are some calculations a computer can’t do. There are still a finite number of instructions that are unique and would reasonably pass muster under our patent laws. If you’d like to further clarify, I’d love to hear it.

I laid out the issues for the patent system in my other responses, and perhaps you’re right that it’s hard to search and find a series of instructions, aka software, but you should know that software patents are examined entirely the same as other patents.

I haven’t seen an analysis that 90% or some other high percentage of software patents shouldn’t have been allowed. Remember that you can include any description in the specification and abstract, including the whole encyclopedia if you want, but that doesn’t define the invention. The invention is defined by the legal description in the claim language – it’s a boundary for what is actually new, and every single word of it must be found in a product for it to infringe.

The claim is synonymous with the invention in the case law, which is why it’s not recommended to use the word “invention” in the specification, so it’s not used to narrow the claim interpretation in the court’s Markman (claim construction) proceedings during the suit.

Believe me, if someone could do an actual assessment of allowed patents (notably the claims) and show that they never should have been issued, I’d love to see it. As an FYI, from time to time in representing defendants we’re approached by professors etc. who’d like to share prior art and be retained as experts. But aside some from studies here and there which are generally marketing hype ramping off the thought that all software patents are bad, I haven’t seen it.

90% is merely my own estimation of the size of the problem, and it's not really a well-reasoned estimate; I could just as easily have typed 99%.

I think the easiest way to get a number would be to count up all the "on a computer" patents that were issued, divide by the number of software patents in total and there's a nice lower bound.

> There are still a finite number of instructions that are unique and would reasonably pass muster under our patent laws. If you’d like to further clarify, I’d love to hear it.

I would say that there are actually an infinite number of unique programs. Of course the Incompleteness Theorem states that there are an infinite number of true facts which cannot be computed at all, under any system of logical thought, but inconveniently it doesn't tell you which ones. Nor does it say that there are only a finite number of computable things left over. The real problem is that most of these programs are very similar to each other, and most programs are useless.

As a concrete example, imagine the program that converts an MRI's sensor readings into an image that can be displayed on a screen. This is definitely a very useful program, and one that probably embodies many patentable inventions. But now consider the set of all programs which are almost exactly like that program, but have one typo. This is a much larger set of programs than the one program running on the MRI machine, and we haven't even considered the set of programs with two typos yet. The set of all programs then is vast, and it can never be fully enumerated.

Now, whether or not any of the patents embodied in the MRI program are "good" or not is a different question. I'm sure some of them are; the others are just an implementation of an existing idea but "on a computer", or are otherwise not novel, not new inventions, or are too obvious.

Thanks much for your clarification.

Regarding whether there are multiple patents issued on the MRI –

(1) Assuming that the algorithmic steps work properly (i.e., without typos and the like) . . . Please see my explanation about patent claims in other discussions. The claim of a patent puts a box around the uniqueness of an invention. Ideally, it’s supposed to be as broad as possible without being so broad that it’s anticipated or rendered obvious by what is already known (prior art). The patent claim and algorithmic steps are not synonymous. It’s possible that the first step of a claim incorporates hundreds of algorithmic steps, and the second step of the same claim incorporates hundreds of other algorithmic steps. (Those steps would be described in a broad or exact fashion in the specification.)

The way the patent system works, while it’s possible that many patents try to claim the same thing (different patents by different inventors), the patent is supposed to be awarded only to the first one that was filed.

Since today patent applications are published approximately 18 months from their filing publications (and could be prior art), in the U.S. and in most other systems, the system doesn’t really work for filings within that 18-month period. That’s because for the patent application being examined, there’s an 18-month gap of filed applications that can’t be used; and there’s even an exception to this if the prior art application is filed first and later publishes (secret prior art under 35 USC 102(e)).

Technically, the examiner should have access to secret prior art (non-published applications) if they’re published under 102(e), but you can see that there’s no way for the applicant to have known that before their filing.

Plus what happens if the secret prior art that hasn’t published (and isn’t really prior art) issues as a patent after the applicant’s patent issues as a patent? Now you may have two people patenting the same invention, and they may invoke what’s called an interference proceeding before the USPTO, to see who wins.

There’s lots more. But without writing a novel and giving everyone here a headache, let me add that what is prior art is legislated (which means lobbying has a lot to do with it) and not based on logic, and that the America Invents Act (AIA) that was supposed to tame abuses and clean up the system was more of a monkey wrench thrown at the patent machine.

Because of the complexities of a legislated system, there are many instances where the problems you’ve outlined could apply. But I haven’t seen anything other than anecdotal evidence to support there’s a high rate of patents that shouldn’t have been issued. The elephant in the room however is there isn’t an easy way for an examiner to search prior art that’s doesn’t constitute patents.

(2) If Assuming that the algorithmic steps do not work properly (i.e., without typos and the like) . . . Here we have the additional issue that they written description may not support the invention and/or they may not enable the POSITA to make and use the invention. That’s under 35 USC Sec. 112 (a), which pre-AIA was 112, first paragraph.

I’m mindful of Church’s lambda calculus and Turing’s solutions and halting theorem, but it’s not really applicable generally except under Sec. 112 here, and likely not really applicable. We don’t require a complete axiomatic set or proof that every single series of algorithmic steps results in a defined solution of a computer. Applications that broad would likely invalidate the entire patent system – and I’m sure many would love that :)

Also, about the good versus bad issue for the MRI you mention, I defer you to my long response to orangecat2, specifically about novelty under Sec. 102, nonobviousness under 103 and POSITA.

Let me add that we are supposed to handle these matters objectively, and the USPTO was applying a motivation test for combining references; this is a test developed over 50 years by the Federal Circuit and applied by the USPTO, and it was injured by the Supreme Court’s KSR International case. The USPTO is still walking it back as much as they can, so as not to make the examination system so arbitrary.

If you think about it, along comes technology and the Internet age, and now we’re dealing with application of a generic computer program to things that were done manually earlier. (Business method patents are in this lot.)

Many a patent troll has used these kinds of patents against smaller businesses and startups who feel wronged. And there are many on both sides of the issue, but you already know where most technologists stand, and some of the abuses out there are simply not acceptable.

The Supreme Court’s Alice decision tried to resolve at least part of this issue by saying that if something that’s well known, and has been performed manually is now done by a generic computer (i.e., for example a pc using a Windows operating system) running a program, the simple act of using the computer does not make it patentable subject matter.

There’s a lot of truth to this simple statement; the issues is that the Sup Ct is now using subject matter eligibility (under Sec. 101) versus patentability (under Secs. 102, 103) which has lots of bad repercussions for the patent system; not to mention that there’s a lot of dicta (legal prose) that litigators can use as they deem fit, to convince a federal judge who may not have any background in tech, like our dear Sup Ct.

Sorry for the long reply here, but I think a lot of people have the same thoughts, so I’ll elaborate.

It’s not in the individual instructions that there is uniqueness, but instead in the combination of them, that makes the code. By your same argument, every possible thing you could do with the English language has already been done because we’re limited by a finite number of 26 letters or a finite number of about 170,000 words, give or take, and so there’s nothing novel or unique in a new novel -- it’s already in the sandbox.

There are 2 big things going on to get you a patent. 1 – it has to be subject matter than we, as a society, by our laws, deem “patentable subject matter” and 2 – your particular thing, that you say you’ve invented, is both novel and nonobvious (the latter means it wouldn’t have been obvious to combine more than one novelty reference together to come up with your invention).

Think of 1 as the ticket getting you into the show, and 2 as your seat at the show.

The math thing you’re talking about comes from the Supreme Court. For over a hundred years, the Supreme Court has narrowed the meaning of article 1, sec. 8, clause 8 of the constitution (about patents) to exclude mathematics and algorithms as patentable subject matter (item 1), because it’s too important, not because it’s trivial (item 2). They call it “preemption,” meaning giving someone a limited monopoly say over E=MC^2 can preempt an entire field from developing.

That’s very different from it being obvious (item 2), in fact you could say it’s the opposite, which is the argument you’re making in your first paragraph.

But, it turns out that you’re in good company. This particular Supreme Court, the Roberts Court, made the same mistake, namely of mixing patentable subject matter and obviousness in it’s Alice decision, that runs contrary to it’s own case law. It's been harshly criticized in the patent field, though it's unlikely anyone outside our "sandbox" has heard it.

The Alice decision doesn’t really kill business method or software patents, as many have said, but it did weaken them. Much of this is because if you're defending an alleged infringer (and I've represented both plaintiffs and defendants), you will make much hay out of the court's language ("dicta") to win your case.

The other issue we have is with the courts. You see, for several decades, the Supreme Court has punted on patent law, and let its lower appellate court, the Federal Circuit make the calls. The Fed Cir is the appellate court with exclusive jurisdiction over patents, and it’s decisions are way more important than what the USPTO says (in fact the USPTO must follow it).

This particular Supreme Court has woken up and decided to kick the Fed Cir’s butt (reverse it’s decisions). Think of it like parents who’ve placed all of their child raising duties on the oldest sibling. Then one day, after shirking their own duties for years and when the kids are nearly grown, they beat the tar out of the oldest sibling. For years, the Supreme Court has even admitted it doesn't really understand technology or patent law.

And don’t get me wrong. I’m not advocating for software patents, but I do want (1) that our laws be logical and consistent in creation and application, and (2) preferably for a law to be passed by the people versus de facto by the Supreme Court in its application (which is really a construction).

If the USPTO were capable of competently evaluating software patents to determine whether they were actually non-obvious inventions or just taking long-standing practices and appending "on a computer", then the concept might have some merit. But they aren't, so it doesn't.

You make a couple of great points.

Let me analogize the problem. Imagine that one day you’re reading books and working on computers and floppy disks.

So your information is limited. To be more fair, you’re searching paper copies of patents in “shoes” and using the Dialog database and now-arcane machines to actually look at images of patents (wow).

This is what I was doing in the early 90’s as a patent examiner, following working in industry as a software engineer.

Then along comes all the information in the entire world from the dawn of civilization to the present: the Internet. (Or think of it this way: Bill Cosby meets Twitter.) So now, you’ve got the USPTO, with access to all of human information.

Now, in reality, patents like most other creative work are typically incremental changes. If enough time is spent, it is possible to find reference that are very close to the “invention” being examined, especially if all information is available.

The next challenge is how close do the references have to be? When are the references close enough that when combined together, it would have been obvious to come up with your invention. Is your invention obvious, or not, over references. If it wouldn’t have been obvious to combine them, you get a patent, but not otherwise.

Well, who gets to decide this? It’s not really the patent examiner, though it really is – let me explain.

The patent examiner can’t say it would have been obvious to me, Mr. Patent Examiner, and so you don’t get a patent. That subjective nonsense.

We don’t really want this objective person to be a real person at all. Imagine if we let the president decide – this president – I can’t imagine anything worse.

If you’re familiar with contracts, we create the legal fiction of the “reasonable person” to decide how the contract should be interpreted, and the parties, judges, juries and everyone else must put themselves in the shoes of this fictitious person to decide how to interpret contract language.

In patent law, we’ve had to create the legal fiction of the “person of ordinary skill in the art (POSITA)” If you think about it, it’s logical, because the person has to be someone who works in the field of the patent subject matter, and this person’s doesn’t have a low level of knowledge or a genius level of knowledge, but instead an “ordinary” level of knowledge. And that’s when the patent application is filed, not later.

It’s the POSITA that the examiner pretends to be when issuing the patent, and whose shoes judges, juries and even Supreme Court justices must step in to make the determination.

So if you put 1000 people in a room, and gave them some good (perhaps not even great references) and asked them whether it would have been obvious to come up with an invention, how hard do you think it would be to get consensus? I think it’s a lot more likely that you couldn’t get half of them to agree one way or the other. When I did EE and math all those years ago, I remember a couple of grad students who though everything was rudimentary. I guess there's always some bonus points awarded with this kind of chest pounding.

Now, throw on top on top of that a few more facts. 1 - the examiner has perhaps a few hours or a day or two to find all of the best references, and make a rejection; 2 – the attorney responding for the applicant is limited really by the client’s dollars, so unlike a big corp a small company doesn’t have a budget to keep arguing over and over to get some decent claims allowed; 3 – the budget once we’re in licensing or litigation is much higher, so you can bet that a big company being sued will comb the earth to find the best references to invalidate the patent; 4 – that same big company has enormous marketing dollars to paint anyone who ever brings a suit as underhanded, bad, gaming the system, basically the same as the old lady who sued McDonald’s for giving her coffee that burned her; 5 – for these reasons, and that so many software engineers feel as you do, the USPTO and this particular examiner are extremely nervous to allow a software patents that’s got any teeth. Who does that hurt?

Well, I can assure you it's a much bigger problem for smaller companies and startups than for the big companies pushing out the marketing. That's one of the reasons I'm always fascinated by the vehement antipathy toward patents by startups in SiVy, in a Spock sort of way.

I think you get the scope of the problem. We have huge systemic issues that are exacerbated by big dollar interests. And it's not the best formula when everyone's completely convinced they're right about everything, if you know what I mean.

It's interesting how basically everyone in the thread has an example of a badly awarded or maliciously used software patent and there even existed an entire industry predicated on lawsuits built on the back of portfolios of the things but clearly the community is suffering group think.

At this point the burden of proof is on the software patent holders/supporters; provide some examples where software patents have driven innovation done any sort of good. There's nothing to disrupt because the system is completely unequiped to evaluate and award software patents and probably never will be (if you have the skills to evaluate a software patent you could just work in software for a fraction of the schooling and equal or more pay)

That’s kind of a sweeping generalization for the few examples here and not exactly applying the scientific method, don’t you think?

I hope you notice that I’m purposefully not using legal jargon because I genuinely want an honest communication where we understand each other. Jargon is not a sign of intelligence but rather of hiding.

And I hope we get lots more, because I’d really like to see the nature of the problem. Not to dismiss anyone here, but remember we haven’t looked at any of the patent claims and actual references, and unless I’m missing something, no one’s stated having expertise in the patent field.

When large company A licenses its 2000 patents to large company B for $470 million, and thrown in the mix are other rights, license and non-competes, that doesn’t make the news because the deal is confidential. I’ve done a lot of these, and I’m not bragging here because a lot of others on here have too, but it’s a plain fact that you wouldn’t know about these unless if you were a cxo at one of those companies or their lawyers. But you definitely would see reports about a no-name patent troll suing a startup. The bogeyman is spotted by your local tech reporter/blogger, emboldened by the fact that everyone thinks like her/him and won’t question the various biases and misinformation.

Also consider that today the distinction between hardware and software is really arbitrary. It’s more about the type of instructions being implemented. Anything implemented on software can be embedded into firmware and the like. Can you imagine how arbitrary and nonsensical would be a patent system that says you can’t protect software, but if you burn it into a chip you can protect it? That's the definition of a bad law.

But that’s different than say software for implementing a business process. In my view, and I may be wrong, that’s why you’ll see the CY folks make a distinction between patents for rockets versus for an online store.

> "As a software developer from the stone ages who’s spent many years in the field of intellectual property (IP), I’m truly curious why Silicon Valley is so down on patents."

Sounds like you've witnessed the rise of the open-source movement.

It seems that software development is much more of a distributed effort now, as many companies build proprietary systems on top of open-source frameworks and libraries.

So, I put the decline of patents down to the rise of open-source technology. Companies can't patent their ideas due to open-source licensing restrictions.

Lastly, there's a lot of horror stories of patent trolls and fraud that discourages a lot of people who probably should patent their ideas, from doing so. Anyway, just my thoughts.

Very well said, and insightful, truly.

Hi Everyone - I know there's a lot of prose in the responses below, but you may discover a lot about the entire patent system (especially business method and software patents) and the issues startups have to deal with, by checking it out.

My responses are not to take sides, but so that you get the challenges in light of the patent system as it really works. Already I've gained a lot of insight from your responses.

Please keep your responses coming. I'd love to hear some anecdotal info or studies showing the problems with software patents.

There are a few sides to the story, you are viewing this as a software developer, as you mentioned. You need to put on a different hat, and then decide it patents are valuable, where, and why. As much as there are horribly abused software patents, I assume the same of other patents types as well.

A patent is intended to protect an invention. In most cases, that means the intention is for the benefit of a business, even though the patent itself is awarded to individuals.

If you ask me as a software engineer, how I feel about patents, I'll say I don't like them. I don't like having to be concerned that the way I implement a certain feature could be limited because somebody else came to the same or similar solution as I did.

As a business owner, ask me how I feel about patents, and now the line gets a bit blurrier. I don't like that somebody can sue me for a product I created and am selling, but I do like that I can protect something I created from being nocked off and copied.

We're currently building a sleep-tech hardware product (it's pretty cool https://soundmind.co) and in an industrial design meeting, it was suggested that we get our hands on a similar product in the market so we can reverse engineer it. Me and my co-founder both hated that idea. We already have a unique take on the market, and our own method of doing things which we feel is a better way. But apparently, there are many people who think it is just fine to take a product, figure out how to copy it, and do that and try to sell it.

This can happen in software or in hardware. Why should it be any different from one to the other?

Now the other challenge comes in when you have examples like the x-plane given by @taf2 in the comments, or Amazon's one-click patent. These should have been obvious to the patent office that the inventions either already existed or were obvious, and should not have been given protection in the first place.

I hope you are able to disrupt the current state of patents for software as it could be valuable if handled properly. But I wouldn't go around asking software engineers what they would like in a patent protection service, you need to speak to business owners.

Thanks much for your insight, pedalpete. I found your comments helpful and insightful on a number of different levels.

Regarding reverse engineering, while I don’t know the particulars from the legal perspective it’s fine and done quite often. In truth, the fact that reverse engineering is completely acceptable is one of the reasons to consider patenting. You may also consider getting an FTO (freedom to operate) to provide at least a reasonable likelihood the end product won’t be infringing.

I provided some thoughts to taf2 below you may consider taking a look at as well.

I feel like the the x plane story is pretty good place to start to get an good understanding of why software patents are so bad... maybe here https://www.x-plane.com/x-world/lawsuit/details/

To start... and then continue here https://news.ycombinator.com/item?id=5157984

Thanks so much for bringing this to my attention. I took a quick look at the litigation docket for this case, which was consolidated with actions against a number of other defendants too. This was in the Eastern District of Texas, considered to be plaintiff friendly, which I’m quite familiar with.

The defendants used the USPTO’s relatively new (at that time) Inter Partes Review (IPR) procedure in order to try to invalidate the claims (alleged to be infringed) before the USPTO’s Patent Trial and Appeal Board (PTAB). When the IPR was filed, as is customary, they requested a stay (temporary stop) of the court proceedings, in order to try the IPR before the PTAB. The strategy worked, because the claims alleged to be infringed were invalidated by the USPTO’s PTAB, but 2 claims (claims 21, 22) apparently survived the IPR. After the IPR, the case was continued in Texas, again as is customary.

Unfortunately for Uniloc and fortunately for the defendants, Uniloc hadn’t alleged infringement of these claims, so it tried to do so after the IPR. The court found this was too late, and dismissed with prejudice. It does not look like Uniloc got any money from Laminar Research or a number of these other defendants. However, I agree that it was apparently a waste of time for the parties involved, and likely cost Laminar some real legal fees.

The whole thing seems irrational to me because patent troll cases like this should settle early.

I will have to provide some guidelines here for startups dealing with patent trolls. That’s if you and others on HN are okay with it, i.e., to educate versus being promotional.

I don't care for software patents. I feel software is like art (excluded from patents for a very long time) and if I come up with what someone else comes up with that is that. I worked at a startup that dumped crazy money into patents. They were awarded many that I feel are borderline at best. Patent system overall sucks, it is capitalism like so much else.

Side note: I worked for a guy that was awarded a patent that allows him to be the only person legally able to fill a balloon with ANYTHING but a gas and sell it. He refused to monetize it and went broke.

Sounds like you've had some bad experiences. I really appreciate your sharing this. Regarding the balloon, you'll have to check out some of my other responses about the obviousness legal standard for obtaining a patent. Unfortunately, when problem patents are allowed it makes the whole system look bad.

I rather agree with you in the sense that we've got a winner-take-all system, that has a lot of arbitrariness built into it, with huge ability by big players to game the system, where there's huge misinformation and everyone (whichever side they're on) thinks they're right and won't really listen to the other side. I can tell you that if you talk to a room full of patent lawyers, when they're being honest and not brown nosing their clients, are pro-software patents just as much as people on here will be anti. These are reasons why I'm looking to disrupt, it's like Ma Bell before everyone woke up and AT&T was broken up.