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It's pretty hard to drill on someone else's land, use someone else's music in a production, or use someone else's logo without realizing it. Software patents are nothing like this.
Software patents would be more akin to it being patented for an oil company to drill with a very hard diamond bit, or a guitarist to hold their guitar a certain way during a solo, or perhaps a clothing manufacturer to wash their jeans for a more rugged look.
Maybe other industries do have patents like these, but I certainly never hear about them.
> Software patents would be more akin to it being patented for an oil company to drill with a very hard diamond bit
It's even worse than that.
If you want to drill for oil on some land, then you need to get rights to drill on _that land_. A software patent though prevents you from drilling on _any_ land. It's not a right to the oil that's in question, it's a right to drill at all. A software patent is akin to "we've patented searching for oil". No wait, why stop there, let's patent "Digging a hole in the ground". You wanna plant a tree over there? Yeah, sure, digging a hole to put it in is kinda obvious, but I've got the patent on digging holes.
The problem with patents is when they move from patenting a "true invention" (and yes, that could be software, like say a better compression algorithm) to patenting the "obvious". therein lies the rub - who determines the legal standard for "obvious". Is Bitblt'ing obvious? Is Public-Private-Keys? Is buying-something-with-a-click?
Given the impossibility of defining the "obvious" I'm in favor of just dropping the whole sorry mess, and going back to the days when _machines_ were protected, the implementation of ideas, not the ideas themselves. Yes programs are copyrighted, but not code-snippets.
Actually, it's not, and that's the sort of thing that makes folks who actually know about patents dismiss much of the software patent rants.
Take the RSA patent. It just covers the use of a specific set of algorithms to do a specific task. It does not cover using those algorithms to do other tasks or other algorithms for doing said task.
In that, the RSA patent just like the Viagra patent. If you can figure out how to use the Viagra compound to shine shoes, you can patent that, and the pharma patent doesn't apply.
Not if Pfizer files a lawsuit about it and you run out of money before you ever see the inside of a courtroom.
And yet, the patent is violated, and they had to stop.
Amazon does not have a patent on the implementation they have for One-Click purchasing. They have a patent on the idea of One-Click shopping. There apparently exists no alternate implementation of One-Click shopping that will not violate the patent, because by any remotely sensible standard that would permit such an alternate implementation, Barnes and Noble must be able to meet it. (If somebody had cracked into Amazon's system and sold Barnes and Noble the one-click implementation, it would have been useless to them.) This is a fundamental perversion of the system. Patents are supposed to encourage innovation by enticing people to create their own alternate solutions, but in software, and more or less only in software, you can patent ideas.
And if you want to claim that this is not true, I would ask you to explain exactly how Barnes and Noble violated the patent in any other manner, given what I've said above.
I'd also observe that this patent probably falls under this rubric, too. There's no way to implement "buying from within an app" that will not trigger litigation. This is ridiculous. As I said yesterday, maybe programmers overreact to patents vs. most other industries because we are being abused by them, but I'm willing to try living without them and worry about any problems that result later.
So? The patent is on a mechanism for one click shopping. Like all patents, the mechanism is described as abstractly as possible while avoiding prior art. (The doctrine of equivalents is settled law wrt every other kind of patent. Why do you think that it shouldn't apply to software?)
Implement one-click shopping with a different mechanism and the patent doesn't apply. The patent also doesn't cover using one click for anything else.
> In each case I guarantee the relevant code in both implementations is orders of magnitude larger than the patent itself, which by simple information theory means that the patent is only a small part of the whole.
You write that like it's important - it isn't, at least not wrt any other kind of patent. Why should software be different?
> They have a patent on the idea of One-Click shopping.
You seem to think that patenting an idea is somehow wrong. Since every patent covers an idea ....
> There apparently exists no alternate implementation of One-Click shopping that will not violate the patent, because by any remotely sensible standard that would permit such an alternate implementation, Barnes and Noble must be able to meet it.
I haven't read the claims (and I'll bet that you haven't either), so I can't say whether it covers every possible implementation, but even if it did, so what? That's the goal of every other patent as well. Why should software be different?
I suspect that you also think that "the abstract mechanism is obvious if you're trying to do one-click shopping" is meaningful - it isn't. In every other domain, novelty can come from asking a new question, such as "wouldn't one-click shopping be a good idea?" Again - why should software be different.
> Patents are supposed to encourage innovation by enticing people to create their own alternate solutions, but in software, and more or less only in software, you can patent ideas.
The above is wrong on almost every detail.
Patents have nothing to do with encouraging people to create alternative solutions. They're about disclosure and blocking free-riders. And, as I wrote above, every patent is an idea patent.
What different mechanism? What different mechanism implements one-click shopping that isn't one-click shopping?
I'm serious. Lay it out for me. Then, if you manage to get that far, explain what your difference has that the B&N implementation didn't have. Don't just handwave.
"I haven't read the claims(and I'll bet that you haven't either)"
Wrong.
In fact...
"They're about disclosure..."
If you have any programming skills, you should go read the patent and see just how much is "disclosed". First, sit down and sketch out what you would need to implement in order to create a one-click ordering system. No, seriously, sketch out the basic systems on paper. Then go read the patent. Then boil out the legalese. Then observer that your sketch and what the patent contains has roughly the same amount of information.
You are at a disadvantage until you do this, by the way, because like I said, I have read this, and several other such patents. You need to read at least one before continuing on. And ask yourself the question, exactly how much help are these patent applications in implementing a solution to the given problem to one "skilled in the art"? This is part of the reason software patents are so stupid, they almost all completely fail this test. You cited one of the handful of counterexamples already, but an exception it very much is.
"Patents have nothing to do with encouraging people to create alternative solutions."
You need to brush up on your patent defenses if you're going to spend any time defending them. They're for the purposes of promoting innovation, and the stimulation of alternate solutions is one of the big ways they do this. It is only a recent perversion of the goals of IP that they are solely intended to serve as property and create gatekeepers and therefore allow people to block innovation as they see fit.
As I thought, you haven't read (or understood) the claims. The claims describe the mechanisms that the patent covers. Do one-click shopping with a different mechanism (that is, eliminate and/or replace one or more elements), and you're home free.
I don't know, or care, what mechanism B&N was using. (I'm guessing that you don't know either, so ....) I do know that some combination of B&N's lawyers and a court decided that B&N had used a claimed mechanism. If so, that's the result that we'd want from any other patent, so why is software different. (If B&N didn't actually use a claimed mechanism, that's a different problem, but again, that wouldn't be anything different about software patents.)
> If you have any programming skills, you should go read the patent
I've both (significant) programming skills and some familiarity with patent law. (I've even written a couple.) Moreover, I have read the patent.
> You are at a disadvantage until you do this,
Not to anything that you've shown.
>> "Patents have nothing to do with encouraging people to c>reate alternative solutions."
> You need to brush up on your patent defenses if you're going to spend any time defending them. They're for the purposes of promoting innovation,
You need to brush up on your understanding of basic English and/or logic. "create alternative solutions" is not the same as "promote innovation". It is one way, but it is not the only way, so whether a given patent encourages "create alternative solutions" or not is irrelevant. Patents encourage innovation by rewarding it.
> It is only a recent perversion of the goals of IP that they are solely intended to serve as property
That's simply absurd and has no basis in history. Patent assighment is not new, and that's a fundamental characteristic of "property". Moreover, US Patents have always worked by restricting what other people can do. That's how they funnel money to inventors and the folks who support them.
There's a reason why I mentioned AG Bell. What do you think that the telephone patent lawsuits were about if not "gatekeeping"?
It's perfectly reasonable to think that there might be more effective ways to promote innovation or to reward inventors, but that doesn't entitle you to misrepresent how patents actually work.
You're assuming that a patent is "bad" if the solution is obvious given the problem. That's wrong. Patents for new problems with an "obvious" high-level solution are completely legitmate and well-established in every other domain. In other words, the novelty can be in the problem. Why is software different?
But the thing is, the patent is an invention of something completely different - customer satisfaction surveys on fax machines - and has to be interpreted in the most general way possible to even approach covering what they're seeking licenses for.
This patent has added zero value to the iPhone developers it is targeting.
And right in the next paragraph...
"Many industries study the IP landscape prior to releasing a product or service and either design around or acquire necessary patent rights if they need them to do their solution."
So we need to hire lawyers to research whether we are inadvertently building on the ideas of others?
The patent trolls are now justifying patents by explaining exactly why they are unjustified.
The system is broken. You can't know what is patented because it's too bleeping risky to even look.
There is no "teaching." All you can do is build up a war chest and rattle paper at people who try to come after you.
But if I, sitting in a room with nothing but my own mind and a keyboard, actually WRITE THE F&#@ING CODE that is covered by one of these patents, then someone who never did an ounce of work actually implementing it will come along and demand a fee.
How can anybody think that's a reasonable system?
This isn't an Apple issue, this is an industry wide issue. Apple owning the patent would make the issue go away for Apple but it might actually make it worse for other app stores (if Apple decided to be a dick about it).
On the surface this feels remarkably broad and uninnovative as patents go (similar to the Amazon one click one which I believe was recently said to be invalid - potentially pending an appeal from them).
If this is the case (and it's hard to know without knowing more detail and more law than I do) then it really needs to be fought and overturned.
It would be nice to see the big players - Apple, Google and Microsoft - setting up some sort of fund to allow the small developers to fight this properly for everyone's benefit.
The actions of patent trolls might be curtailed if they knew that there was a distinct possibility that the next letter they sent off to a one man software house was going to be met with an army of the most vicious lawyers money can buy queuing up to kick your ass from here to kingdom come.
Does US law allow for 3rd party funding of such cases?
They're patent trolls, they care about making money. If anything they'd want to avoid upsetting Apple because the minute Apple's legal and financial muscle gets involved things are a lot lot harder if you're Lodsys.
Also, at the percentages that he is seeking, how much does he truthfully expect to get out of something like pCalc. I don't know how much it is selling, but I kinda expect that it is a bit south of 1Mil.
Is there any resolution to this situation in a similar way that EA games shut down the "Edge" trademark (http://en.wikipedia.org/wiki/Edge_Games). I hope so.
If the guy is successful with Apple then it's inconceivable that they're not next so a little proactivity is probably the best way forward.
At the very least they should be putting together a strategy,
Dan Abelow sounds like a self-aggrandizing jerk when he talks about himself in the third person.
Once your patent lawyers have had time to study what's going on, then you're ready to do something.
It's not "disturbing" at all. It's just common sense.
Lawyers can read and write at superhuman speed, but it still takes time to prepare all that material and do all that research. It's not a field that rewards those who shoot from the hip.
The law (and lawyers) move slowly so I suspect it's going to be some time before they have anything useful and if you can't say anything useful why say anything at all?
Any devs got the terms handy?