Enough Is Enough
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I'd like to introduce the concept of Movie Patents. I'd register a patent for the plot device of having the bad guy be the main character's best friend, with additional clauses for being his boss, advisor, or partner. I wouldn't ever make any movies. I'd just sit back and collect royalties from everybody who used my idea.
The reason behind this is that maybe then people who matter would actually notice how silly this concept is. It's so plainly obvious that it's a bad idea that regular people can finally understand what's going on. Eventually, people with the ability to make changes might actually find themselves forced to make changes.
Software, as big as it is, is just not that big. This issue can piss every single one of us off, and it won't make the NBC Nightly News. It can't piss off the people it needs to piss off in order to get it fixed, so chances are it will stay unfixed indefinitely.
People have disputed the originality of movie ideas including Matrix [0] and Harry Potter [1].
[0] http://blogcritics.org/video/article/author-sues-matrix-writ...
[1] http://www.cbsnews.com/stories/2010/02/18/entertainment/main...
mluiten might be referring to the fact that copyright only applies to "original works of authorship fixed in a tangible medium of expression." (See http://www.copyright.gov/help/faq/faq-general.html)
That is, copyrights don't cover ideas, but creative works in some fixed form (e.g., a painting or a piece of software).
Say you've got a popular photo, you can transfer the litigious rights of it to a copyright troll and that troll will then sue everyone using it.
Kind of like what RIAA is doing.
So to clarify: Saying two different movies both of which has the "friend turns out to be bad" are copies is wrong; that's just not enough of a similarity to base a copyright case on. However, if you happen to find a way to patent it (which you probably could if there hasn't been prior art), you would be able to sue for patent infringement.
Doubtful. But, given that if diversity in movie plots benefits mankind (!) then offering an incentive to develop a new plot could be worth it. If the plot is entirely disclosed so that it can be used for free by anyone in a few years then is this not a benefit?
Well, lawyers already went there: http://www.plotpatents.com/
"A Plot or Storyline Patent application seeks to patent the underlying novel and nonobvious storyline of a fictional story. Such protection is to be contrasted from the copyright protection of one of millions of possible expressions of an underlying storyline. The field of possible applications is broad, and may tentatively be split into an entertainment-advertisement dichotomy. The epitome of an entertainment application is an original, thought-provoking, often shockingly unique movie plot. Several potentially patentable features may have been found in the plots of, Memento, The Thirteenth Floor, Being John Malkovich, Butterfly Effect, The Game, Fight Club, The Matrix, Total Recall, The Truman Show, Minority Report, The Village, Groundhog Day, and Eternal Sunshine of the Spotless Mind, to name a few. The epitome of an advertisement application is one of the many thoughtfully hilarious Super Bowl commercials."
http://www.theregister.co.uk/2005/11/04/movie_plotline_paten... http://www.groklaw.net/articlebasic.php?story=20051103183218... (this article's link to the published application is no longer accurate)
the ... proponent's website has its own legal reasoning: http://www.plotpatents.com/about_us.htm
USPTO publication numbers for a few of their applications 20050272013 20050282140 20050255437 20050244804
You can find those on google's patent search or the USPTO's Public Pair service: http://portal.uspto.gov/external/portal/pair
And beyond just being... questionable as a type of invention, the applications seem eager to see just how broad such claims might be:
1. A process of relaying a story having a timeline and a unique plot involving characters, comprising: indicating that a first character experiences dj vu to mask an actual event.
The problem is that as soon as you put the word "software" in front of the word "patent" during a discussion you can actually see eyes glaze over and brains shut off in the person you are talking to.
It's just easier for representatives to ignore this. That or they see the issue as niche, and therefore don't pay attention.
Yes, the same ridiculous rules that apply to software MUST apply to something more mainstream so that it gets noticed.
Here's an example: my employer, a rather small company has invested an enormous amount of resources in developing a specific algorithm. It took years of research and development, lots of money and brainpower, it's very far from being trivial (in fact it's so complicated I have to admit I don't understand some parts of it) and it's light years ahead (in terms of usefulness and speed) of any other algorithm with similar applications.
Obviously the last thing we want now is simply handing it over to our competitors, after all this work. If the patent system didn't guarantee us monopoly on using the fruits of our own R&D, this algorithm probably would not have been developed for a very long time, if ever, by anyone. It would have been innovation that never happened.
My point is that the threshold of what can patentable should by way higher, but I think we need a (software) patent system none the less.
Yours sounds like an edge case. The real question is what's best for the industry as a whole?
So, I think there are more winners and innovation "sacrificing" the software inventors side.
For example one of the mini revolutions was Turbo Pascal from Borland offering the compiler for few bucks when compilers were more expensive, with patents all prices go high and that means few people or companies can spend money on that.
Reverse engineering.
And is there any possible scenario where the long term good that comes from this patent will outweigh the long term good that will come from untethered innovation?
Perhaps. In those situations where there would otherwise be no commercial development at all without the prospect of the monopoly a patent affords. In software, I would posit that there's more good that comes from the innovation.
You have the right to keep your code confidential and protect it from theft, but people who are capable of making something similar with their own abilities shouldn't be punished.
A better one could be to make it profitable to defend against frivolous lawsuits like these. If the plaintiff is required to pay the legal bills of the defendant, plus a hefty margin awarded by the judge according to how frivolous the lawsuit was, we would turn the incentive backwards. That would prevent ridiculous patents like these to even reach a court and create a market for lawyers specialized in shooting down stupid lawsuits.
Additionally, keep in mind that road goes both ways. Suppose you devise something that is arguably worth a patent and suppose you later find one or many people infringing on your patent, far over the line of fair use. If legal defense is now cheap (dollars/time-wise), you may be stalled in the courts trying to legitimately defend your patent.
There is the approach of increasing punitive fines for unworthy suits or false claims. But patent law is messy. How do you prove the other party intentionally made false claims, wasting the courts time? Or what is an unworthy suit? Somewhat related to punitive enforcement measures, in one of our states a government official is automatically jailed for 1 or 2 nights if they close off an open-meeting no matter the reason. I personally think this is an appropriate punitive measure, but others may think it harsh.
I don't think either approach would work -- both would likely make the system worse. What we need are both a court system and patent office that are sufficiently staffed and have a minimum competence. (I don't mean to insult -- I say this in the context where an official is utterly out of their realm of expertise).
I always thought that this is precisely why the patentable ideas are non-trivial.
But even non-trivial ideas tend to occur to several people at once, which is a part of the problem.
What we need is some counter-balancing force that ensures patent license prices remain reasonable. Normally that's done by the threat of substitution or inventing-around, which doesn't work when USPTO screws up and allows claiming the whole problem space. The price especially needs to be reasonable for non-profit use, which is a software-specific issue made possible because our unit costs are also basically zero. It would also help if they tested patent claims for obviousness by giving someone the problem statement and seeing if they produce a solution off the cuff covered by the same claims.
I'm not a lawyer or historian, but I suspect that protecting against independent invention may not have been the main goal of those who created the patents system. I suspect that this kind of protection may just be a side effect of assuming that it is generally impossible to tell whether or not an invention was arrived at independently and that it is generally impossible to keep the inner workings of an invention secret.
These assumptions are not true in the same way for software as for, say, the typewriter or a particular kind of elevator or even a chemical substance. That's why it may make sense to think about software patents seperately.
First, it assumes that we want to be protected against "others independently developing a similar algorithm". Second, it assumes that I "believe that my company deserves to be protected" from such other people. We're not concerned about other people independently developing a similar algorithm as it's rather non-trivial and as I mentioned, it took an awful lot of effort to develop it. We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
As for your second assumption, personally (and I'm not representing my employer here) I don't believe that we have the moral right to be protected from other people doing their research independently who reach the same results.
In lights of all this, I really don't know how to answer your question.
These are merely two perspectives from which we can view the same phenomenon.
How is that plausible? Aren't these trade secrets? Is your research/work publicly visible?
They sell the product to customers, other people spend a small amount of time reverse-engineering how it was done, and copy it.
I wasn't assuming that you personally or even your employer actually wanted that kind of protection. So my rather rhetorical question was intended to highlight that discrepancy.
You want to prevent others from copying your work but what you do by patenting it is more than that. You prevent others from making or benefiting from their own original invention. Of course, as long as software patents exist, you don't have much choice.
I don't understand the "destroy software patents" crusade. "Destroy all patents" makes sense, and "improve all patents" makes sense, but why are software patents any different than device or chemical patents?
But to understand what might make software special you have to look no further than the things that are currently not patentable and never have been, like mathematical approaches and business processes.
So, for instance, if you invent some data mining approach based on graph theory and you write your formulas on a piece of paper or into your matlab or R worksheet you cannot patent it. If you express the same ideas in a couple of C functions you can patent it.
Another example. Say you are the first to have the idea of selling coke and sandwiches at gas stations. You cannot patent it. But if you are the first to have the idea of selling avatars from within some computer game, you can patent it. Why is that?
The differentiation between patentable and non patentable types of approaches and ideas is not something that was invented by software patent crusaders. It's right there in the law already.
I agree that part of what patents intend to do, protecting original invention from copycats, is legitimate. But if it's done in a way that punishes original invention that seems counter productive to me.
I just think that prohibiting original independent invention in order to prevent copying is absurd because it punishes exactly the people who are supposed to be the beneficiaries of patents.
Flip this around. It is protection against others wasting research on something that has already been invented and [supposedly] enables them to add their research to your own and thus add effort rather than waste it. Is that not a noble cause?
Patents have a double purpose: One is to ensure implementation details of inventions enter the public domain and the second is to provide a limited monopoly as a bribe to ensure that the public domain will ultimately benefit.
In this way patents promote innovation, encouraging the release of new technological developments quickly to other practitioners in the art and so accelerate said development.
The only (large) part I see broken in the current patent system is that the duration of monopolies hasn't reduced to keep pace with the acceleration in the life cycle of new technologies.
Let's say company A and company B create the exact same alogorithim in the exact same time. Company A markets it much better and effectively "wins" the market. Should their success be determined by purely R&D alone? Since this is a rather unrealistic (albeit becoming more and more realistic) situation. Imagine a slightly more realistic scenario. Company A starts R&D day 1 and finishes day 100. Company B starts R&D day 50 and finishes day 125. But Company B has better management, marketing, etc. and (again) effectively wins the market.
Who gets precedence?
> We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
So why don't you just keep it secret? Is this ultimately the question?
Then what you do is keep your algorithm as a trade secret. The point of a patent is to publicize the invention so that others may benefit, and in compensation to the inventor they get a period of protection on its use so that they may license the invention and recoup R&D costs.
"If the patent system didn't guarantee us monopoly on using the fruits of our own R&D, this algorithm probably would not have been developed for a very long time, if ever, by anyone. It would have been innovation that never happened."
You may not agree with the conclusion, but it does address your question.
I used to work at a software company that has an incentive program for developers that come up with patentable ideas, e.g. algorithms. You get a token prize when "your" patent gets submitted -- a pencil or something like that, I don't remember anymore. Then, if "your" patent gets accepted by USPTO, you get a more substantial prize, along the lines of a week at some comfy resort. A lot of my co-workers asked the same question: "Yeah, okay, that's nice, but there's a good chance that the company is going to make shitloads of money off a successful patent. A week at some resort doesn't really compare to that. Why don't you guys offer something that does?"
The guy who was explaining the incentive program responded: "Because you patent an idea and that's worth exactly nothing until you implement that idea in a product and sell that product to customers. You had the idea, but it's the company that has the means to implement it and market it and sell it." When you think about it, it's reasonable. Not precisely fair, but then again, things rarely are.
The point of this story is that software patents, just like all patents, are there to give the inventor a chance to implement the invention and make money from it, as a reward for the inventor's genius and hard work that went into coming up with an invention. That's obviously a good thing, because it gives you an incentive to invent something without having to fear that someone will simply steal your invention and make money off it.
Like every regulation with good intentions, it gets abused. What you said about trivial patents is just one way it gets abused. But another thing that makes it easy to abuse software patents is the duration of the patent. Twenty years is a hell of a long time in software. It practically invites patent trolling.
Besides, they're unfair. A typical software product might have perhaps 1% patented matter, and 99% copied from the "standard requirements" of the market segment it's in. The competitors spent the money developing the market to figure out that 99%, so if you use a quid pro quo measure then they have an automatic right to the 1% innovation the new player brings to the table.
Me neither, but that just means that patents, as they are now, don't serve their intended purpose. It doesn't mean that there's nothing that could be done to remedy that situation.
That they are somehow needed to encourage innovation is a myth.
Maybe it's more accurate to say that they (are intended to) prevent situation that seriously discourage innovation. If I come up with a really ingenious algorithm to do a hellishly complicated thing X, it would be nice to have the legal protection for a certain period while I struggle to get it to the point where it starts making me money. Protection from what? Protection from someone else stealing the algorithm and implementing it faster and beating me to the money making stage.
Besides, they're unfair. A typical software product might have perhaps 1% patented matter, and 99% copied from the "standard requirements" of the market segment it's in. The competitors spent the money developing the market to figure out that 99%, so if you use a quid pro quo measure then they have an automatic right to the 1% innovation the new player brings to the table.
First of all, the assumption that a "typical software product" should rely on a patent is not necessarily true. The company to which I was referring is in the business of developing software for semiconductor manufacturers. Their products are definitely not "typical software products". That specific market is pretty much cut-throat: there aren't many companies developing for it and, consequently, the customer always has you by short hairs. Patents are just another tool in their toolbox for dealing with the competition.
Second, I don't understand why you automatically assume that the patent holder isn't one of those players who "spent the money developing the market to figure out that 99%". I'm not defending patent trolls here. I'm defending the cases in which you want to protect that 1% that distinguishes you from the competition.
Third, even if the patent holder is a new player, how did you arrive at a conclusion that spending money on figuring out 99% of "standard requirements" somehow makes you have "an automatic right to the 1% innovation the new player brings to the table"? It sounds like a false sense of entitlement.
Combined with the fact that I am appalled by the idea of use of government force to block someone from using an invention - that they may have arrived at independently - just because someone else patented it first; and my belief that there are too many smart people in the world for any really useful idea to stay undiscovered long, I advocate for simply abolishing the entire patent system.
The abuse of the system for things that really don't require research and development is at issue here. I think proposals to abolish software patents entirely are probably wrong - but granting patents on XOR, or 1-click, or doing something obvious but on a computer system, are equally wrong.
Put it this way: if I have a problem to be solved by software that is really hard (such as your algorithm), then I'm going to research it before spending five man-years developing it, find you guys, and happily license your solution. No question. And if somebody reverse engineers your solution and sells it, then by God they should be penalized for violating your patent. This is why we have patents.
But if I have an idea like 1-click and pay an Indian developer $10 an hour for a week to develop it, this is simply not worthy of monopoly protection; your disclosing your solution isn't that valuable. If, seventeen years from now, after I've built an online shopping empire while you haven't, you sell your patent to Lodsys and they sue me for a billion dollars out of the blue, that is highway robbery, and it's not in any way helping society - and that is the situation we actually currently have.
There is no "effort" requirement for patents on physical inventions. There's also no "it was done by experts" requirement.
A classic case of "see, this is why we can't have nice things".
In most regulatory organizations where a high amount of expertise is required (like economics) you see a lot of corruption where companies hire out of and into these organizations specifically for the benefits of having representation on the inside. I.e. Henry Paulson.
So unless you have a good way of preventing these employees from ever working for Microsoft / Facebook / Apple / Google etc. then it's really not going to work out as intended.
IMO, just get rid of software patents. Sure it'll suck for some, but overall it's probably healthier for the industry. Plus it's nice and simple and doesn't employ a whole mess of lawyers.
What I don't get though is why it seems to be such a challenge to prove the invalidity of these crap patents in court. The google loss to bedrock (the linux kernel troll) is a high profile example of this. Maybe the standards that need to be looked at are around litigation and if enough crap is thrown out, all the incentive is gone and all of the sudden the USPTO application volume goes way down.
Perfect software patent system > no software patent system > broke software patent system, but I believe the perfect system is impossible, so I'd rather see the software patent system dismantled completely than exist in a broken state.
1) if it is proprietary software, just add a clause which forbids reverse engineering. If it really is as complex as you describe however, I doubt reverse engineering it would be an option.
2) if it is open source software, I don't see the big deal. Even if they get the algorithm your software can still stay steps ahead of theirs.
So what advantage would a patent even give you in this case?
The law includes an obviousness test for a reason. If Congress intended prior patent applications to be the sole test, they would have said so. The patent office is ignoring the law to the detriment of all of us.
Second, Lodsys didn't even "invent" the idea. They purchased the patent and are now using it like a cluster bomb on the entire mobile app developer community.
The fact that Lodsys bought the patent and didn't invent the idea themselves seems entirely irrelevant to this dilemma. Unless you also think that if you acquire someone else's software, you don't have the right to sell it.
Please correct me if I'm wrong, but is Lodsys not just a collector of intellectual property? There's something to say about the difference between a corporation buying intellectual property rights related to its business and a corporation seeking only to sponge off others labor, profits and wit, contributing neither economic activity nor social involvement.
Companies that create patents are more likely to invest their time, money and effort into actually making things that will eventually be sold (in whatever fashion). This activity adds value to the economy. While it is possible for such companies to aggressively pursue their patents in the way that Lodsys has, they don't need to do it to survive, and I hope that the people who work there would rather spend time on more productive things. That's not a guarantee, of course.
Companies that merely collect patents, and exist solely to collect and profit off of the patents themselves, do not add value to the economy. They are parasites. Because they have no other way of generating revenue, we can expect them to behave in the way that Lodsys has.
If it was possible to design the IP laws so that patent trolling was not profitable, then I think that would be a good thing. I'm not sure if it's possible - but I think it's worthwhile to recognize that there is a relevant difference.
Then again, they take way more value out of the market, so it ends up being a negative.
This is what I fear. I worry this idea will take hold and we'll get copyright protection for software 'design' instead of patent protection, and then that happens, the Lodsys crap will have a lifetime of 85 years not 20.
We need to be able to protect someone's innovation so that they aren't screwed over by some larger competitor taking their idea and running with it. That need is real and continues to exist, we need patents.
Let's argue for the real problem here, we also need a better system for dumping things that should not have been patented in the first place because they fail the 'novel' test. We need jurists that understand the technology they are being asked to evaluate, and we need to require at least three people 'skilled in the art' to sit in on juries in patent hearings. I might even go so far as to create special patent juries for these cases. We need a better way of reviewing a patent and validating it against the state of the art.
What we don't need is to convince policy makers that software is like 'music.' And we don't need people believing that we don't need any protection for people's work should they choose to take advantage of those protections.
My thesis is quite simple;
1) There must be a doctrine for protecting the origination and implementation of complex systems, whether their components are manufactured from solid materials or are simply algorithmic components.
You'll recall that software patents came to be when it was shown that implementation via software was indistinguishable from implementation in hardware for some classes of problem. Your "first mover' advantage is worthless if someone else controls all the distribution.
Further, not all software efforts are 'trivial' and while we see those stories all the time I don't believe you could make a similar argument for the implementation of assymetric cryptography as a 'trivial' software patent.
2) The current system is clearly flawed in many ways, but the concept is not.
3) Pushing otherwise technologically illiterate but 'wanting to help' policy makers toward the concept that all software is more like creating 'art' than it like creating 'machines.' Would have the un-intended side effect of having those policy makers moving the necessary protection doctrine to the only other set of laws we have which are copyright.
Copyright, being even more easily argued than software, has been completely corrupted by media 'barons' and their efforts around the world. Which is why the question of whether or not I could legally copy a book printed in 1900 about a story that was 'old' even then, is currently 'questionable' whereas building a steam engine and selling it for profit is not.
1) There can be no doctrine to protect ideas, because any sufficiently complex software system to be marketable also relies on so many different ideas that the cost of licensing patents to enter the market is prohibitive. See for example the mobile OS market, which is effectively inaccessible for new players right now unless they have a billion-dollar bankroll.
Your example of cryptography is a bad one, because those ideas are usually developed in educational environments, funded by tax dollars. For those rare classes of software where the idea really is non-obvious and takes a large time to develop, government can provide the necessary funding to develop it, without the other 98% of software having to suffer under a restrictive patent system.
2) The current system is flawed conceptually, we don't need a software patent system, never did. It's a myth, and there's no cost/benefit analysis that ever proved it as anything else. We don't need a patent system for many other classes of invention also. In most industries it's a net negative, not much more than a tax on doing business.
3) Whether or not software is like making art has nothing to do with the legal situation. If the laws covering art are even worse than the laws covering technological invention then those laws need to change as well. That copyright has been misappropriated to the degree that it has is not something you solve by making less subject matter copyrightable, but by fixing the law.
Edit: A bit unfair and stereo-typing.. I'm sure there are good people working at Lodsys that got sucked in...
It's relatively easy to say "enough is enough". Actually fighting back is harder and, at this point, almost impossible.
Reality is a bit more complex: none of those licensed from Lodsys, instead they have blanket licenses to all IP of Intellectual Ventures (the biggest patent troll in the world) as part of their initial investment in the company (a number of large, patent-warring company invested in IV, probably in the hope of weaponizing it down the road). And Abelow '078 was assigned to a (patent sub-troll) front company of IV (Ferrata Ethereal), therefore being accounted to as part of IV licensing. Which is why Apple, Google and Microsoft have licenses to Abelow '078.
[0] http://www.patentlyo.com/patent/2011/05/intellectual-venture...
Lots of people speak about the "stupidity" of it all. I see no stupidity here. Just the normal, to-be-expected lean of a big government toward protecting the incumbents.
Also I think people should speak more often about drastically shortening copyright and patent terms. They are both very useful, even in controversial domains like software or biotech (patenting genes). The problem is that the situation is waay skewed one way. If you want to bring it closer to normal, start asking for 1 year patent terms and 3 year copyright.
In practice, however, this will simply force patent trolls to jump through a few more hoops and find the least expensive way to distribute the product in some form in order to defeat the intent of the law while following its letter.
This would effectively cover the pharmaceutical case where hundreds of millions are invested, as well as the worst software case where only a few thousand are invested.
[1] - This number would need to pass simple smell tests: the sum of these investment amounts across a patent portfolio can't exceed the total expenses in the company's books for R&D, etc. [2] - If a patent holder sues multiple companies at once, each infringing company would owe only a fraction of the total.
Another idea: a simple community that accepts and publishes every random software idea anyone ever comes up with in order to establish prior art.
Perhaps include mechanisms to discover patent applications linked to relevant keywords, etc.
What would it take to prove the date of submissibon to the system? Is there some type of digital notary that we could send a daily batch of documents?
This is another instance where it would have been beneficial if all software professionals belonged to a Guild or union. If we were organized, at least there is some sliver of a chance that we'd be able to have an influence on the legislative process. If that fails, we would just not work to create software patents.
While I tend to agree in general, the Lodsys situation is not a particularly good example in support of the position from an intellectual standpoint, though it may be good for rallying the troops. This is because Apple's actions in regard to in app purchases (IAP's) have been explicitly anti-innovation, i.e. Apple has required a specific monetizable IAP protocol in lieu of allowing developers to innovate (one does not need to even get into questions regarding the innovation raised by Apple's patent portfolio regarding UX elements). Let us remember that developers are only vulnerable because they are complying with a technical mandate of their agreement with Apple and that this mandate is solely intended to produce uniformity within the IOS ecosystem. Given Apple's patent portfolio, they may have far more to gain in terms of IP protection by upholding Lodsys's position than by fighting it.
1) Patenting obvious stuff / stuff with prior art. "X, but on the internet"
2) Patenting stuff with no intention of releasing a product.
I see a lot of talk about the former and not enough about the latter. My question is this, could we put a time limit on releasing a product once a patent is awarded? Is it normal in other industries to patent something as soon as possible or do they wait until a product is ready to be released? What would be an acceptable time limit? In this case, the patent was issued in May 2007, 4 years ago. Is it reasonable for the inventor to not have a product using this on the market yet?
Because software and technology are like magic to a large part of the population, including a large segment of those involved in government and the judiciary.
Patents are just another specialized form of legalese. It's obvious we need better ways of challenging patents and filtering them in the first place.
It's because Congress has been embroiled in a bitter fight of brinkmanship over who can stall longer over raising the debt limit over the past year. Not much actual progress has come out since they decided that they will keep up the debt limit talks, knowing completely that the partisanship will yield no progress.
While they have debated raising the debt limit, the debt has risen by over half a trillion dollars. They need to fix that and move onto other things. The point of Congress isn't to debate solely over how to balance the budget. They have other responsibilities too, and they need to get to it.
http://www.insidefacebook.com/2011/05/17/facebook-patent-pho...
Now I'm in Europe where this don't apply, but we actually had plans making our platform available in U.S. later on with something that has to do with tagging images - which itself is hardly any innovation (?!!)!. I mean, c'mon. We will now probably avoid that and look east instead. I'm still fascinated that they managed to get thorugh with this, almost like the 1-click-purchase that Amazon trying to paten. It's almost like a fairy tale - with no happy ending.
That's the central travesty here. Possibly if you're a patent attorney, you really do think purchasing with one click is a detailed and arcane technology the development of which is expensive enough to require a 20-year monopoly, but all that tells me is that patent attorneys are somewhat dim people who wouldn't understand productive work if it bit them in the face.
Not that I have strong feelings or anything.
Make software patents only holdable by a real person (i.e. not a corporation), and not transferable. Any money received from a patent infringement lawsuit would be paid to that named person.
That way, they can be used for their original purpose (to protect small inventors and allow them to build a larger business), but can't be collected by the trolls.
(It would also give companies an incentive to keep 'their' patent owners happy).
Just an idea... I'm sure there's a glaring hole in it somewhere.
Unfortunately software patents are useless for this purpose: they don't fulfil the function of making ideas public. Who, in this day and age, refers to a patent for the details of an algorithm?
I would argue that open-source software, in many ways, succeeds where software patents fail.
You can imagine each company keeping a private/internal log of innovation in Merkle trees (with timed signatures by some central authority). All innovation and production is assumed to be original works of art until proven otherwise. In the current patent system, all innovation is public, but there is only 1 winner. In the new system, everybody can win if we all arrive at innovations independently.
Problem solved, + you enforce good documentation practices.
This is an engineering problem. Why don't you fund a startup that builds this system? If we all start using it, that's when we have the power to change the status quo. If we don't know what alternatives are out there, we have no chance of disabling the current system.
I doubt that keeping the government out of software IP disputes altogether is a good idea, because realistically that won't work out -- it'll encourage stealing and the playing field will change for the worse.
You can find and write them here: http://capwiz.com/c-span/dbq/officials/
Also, it scares me a bit when someone as influential as Fred takes this to his blog - read by so many startups. VCs make money from execution and have an (or another) incentive to suggest that patents are not an acceptable tool for startups.
I agree with the need for patent reform, actually, but a) I'm not sure eliminating software patents is the answer and b) would encourage each startup to make their own decision on how to use the current laws to give them every advantage they can get.
To get funded, a company must not try to obtain software patent, and if they do have software patent(s), they will publicly say they will not try to license them and will not sue for infringement of one of their patent.
Beside clearing up the landscape, it will send a clear message, hopefully that is going to be heard by politicians and media: software patent doesn't help innovation, quite the opposite, the guys that fund innovation refuse to give money to companies (ab)using software patent.
Moreover, as VCs seem to be able to work on templates for the paperwork to lower the cost of the creation and founding of a start-up, couldn't they work on standard responses to lower the cost of defending against a patent troll as well ?
You can't patent something that has prior art (and if the patent office doesn't see it, it will invalidate the patent it has wrongly granted). Not sure I understood your point.
Very novel, complex software that might be worth a patent would be very unlikely to turn up in such a collection because of the effort required. Ideally, this would help create an ecosystem where patent-worthy software is awarded a patent, and trivial software is not (because of prior art).
This is an idea I've thought about for a long time. One could argue that much of this idea might already be implemented by websites like sourceforge, github, etc. A focus on explicitly being prior art would probably help, however, justifying the need for a separate archive of ideas.
Just a thought, not the answer. But the system is totally ridiculous as it stands.
My thoughts:
- Prevent the existence of trolls (for example by mandating that only patents that are central to your own business can be enforced).
- Raise the bar for the acceptability of software patents.
- Reduce the lifetime of software patents to something more in line with the software industry (a few years maybe).
But by all means, preserve software patents, they do have some value if used as they were designed for (protect companies that invest into R&D).
Sunset the validity of the patent like the original scope of copyright, and limit the transferral to being able to license it for use so that the only financial benefit goes to the original R&D crowd. That way it still promotes research but limits the possibility of patent trolls since they'd have to actually do the research themselves.
I have to say though that I am disappointed by the blog post. Based on the title and the topic I kind of expected something, anything as a suggestion, instead of just a rant and a loose plan to spam every elected official you meet.
They also lobby for patent reform. They're exactly the credible group you're looking for, in my opinion. Here's part of their statement on the patent page:
There are many ways to promote better patent quality and a vibrant
knowledge commons. One approach is to advocate for good legislation in
Congress and proper interpretation of that legislation by the courts.
Another is to promote enforcement efforts, such as the reexamination of
bogus patents. EFF employs both approaches to protect the public
interest while supporting innovation.Same problem: other apps used it because it's such a generic concept. They (always) say that it's for protection… Riiiight! :|
That doesn't imply that I think that every bit of programming deserves the protection of a patent. But if someone invents a new algorithm, then why doesn't that deserve a patent?
I understand that big software companies. (IBM, Oracle, Apple, etc) own a large portfolios of patents that they can use to defend themselves. But, do they really support software patents or they just use them to play the games they have to play?
Oh god, please don't give them ideas...
Whatever you do, don't count on Reddit and Hacker News to do it for you, that's just slacktivism.
I don't know that anyone really knows how or what to do here. How does a non-mainstream issue like this get into the public eye in such a way that anyone but our niche gives a crap?
Lastly, we have to ask why they REALLY exist. What is REALLY going on. Where is the money in all this, who's making the most?
If Big Software Corp A wants patents to stick around, and the legislator wants Big Software Corp A's money for the next election, do they have any interest in representing the people, or just the corporation?
In this situation, the number of PEOPLE who don't want these patents has to surpass the influence of the large corporations who do want software patents to stay as they are. I just don't see this happening.
I ask because I find a high correlation between this particular point of view : "entity 'x' whom is unassailable, is corrupting the politician I voted in to represent me." And people who have neither voted, nor talked with any representative who was either elected or was trying to be elected.
Here is my idea on 'what to do' here, let me know if it sounds reasonable or not.
My idea is that a group of technologists work with Congress and the Patent and Trademark office to take a look at the existing processes and goals and then put together a program for moving the existing patent law into something that makes sense and serves the needs of inventors without creating opportunities for commercial extortion.
Worth a shot?
I mentioned this before in a discussion about how we change government policy by building software. http://news.ycombinator.com/item?id=2479302
I have no idea what USV is up to today, but back when my company was in their portfolio, I got the impression that they were no strangers to lobbying.
Not too long ago, I attended a large meeting of software business people. They needed to find or write appropriate collaboration software for a particular aspect of their community, and the discussion had pretty much taken it as a given that if they ended up developing the software it would get released as OSS. At one point, someone in the room (who had previously introduced themselves as a business founder) said something to the effect of "We're all trying to build businesses on software, so isn't Open Source undermining everything we do here?", with some further comments about the incompatibility of OSS and business. They got a pile of shocked glares, with expressions that plainly said "where have you been for the last decade?", and someone quickly and kindly preempted the dozen responses they were about to get with a brief "no, suffice it to say there are a lot of people building successful businesses on Open Source, and further explanations should wait until after this meeting".
Never assume that everyone understands something just because everyone you know understands it, even if everyone you know understands it to the point of not even needing to hear about it anymore.
The problem is inherent in the fact that people®© are flawed. And by "flawed", I mean "cunts"®
Unless I'm wrong. In which case we can expect software patents to disappear next week.