HR5874: Restoring Software Patents in the US | Hacker News Reader

HR5874: Restoring Software Patents in the US

patentlyo.com

75 pointszoobab40 comments

HR5874 isn't about restoring software patents. It's about undoing every single element of patent reform this century, whether it be the America Invents Act (that normalizes US patent law to bring it in line with the entire rest of the world), or any SCOTUS ruling to the contrary.

As one of the commentators on the linked blog points out, it's actually surprising that it's not overruling TC Heartland (which is the case that says, no, you can't bring every patent case in ED Texas because you like the judge there) as well. Every other notable hitter--and not just the subject matter of Alice or Bilski, but things like Oil States that upheld IPR or Impression v Lexmark that held that resales don't violate patents--are also expressly overturned.

This isn't the first time such a bill has been introduced in Congress (and it likely won't be the last), but this is going to go absolutely nowhere.

Massie has two engineering degrees, a bachelors in electrical and a masters in mechanical from MIT so he isn't a luddite or science illiterate. Looking in to him further, he spun off his undergrad work at MIT into a tech startup, a pretty common thing for MIT alums to do, and has several patents. This likely comes from a fundamentally different stance on tech IP than what most of HN believes.

Or it comes straight from some patent trolls that fund his campaigns.

None of those credentials translate into an understanding of the current state of patent law.

Like all other areas of US law, its a heaping pile of high-court precedent built on longstanding traditions and understandings of what the Founders had in mind 300 years ago. Since it's built on 300 year old legal theory, some of it makes no sense in a modern context -- but that's what we have.

What is true, and what Massie surely understands, is that tinkering with these rules has seismic consequences, that are all of good, bad, and unpredictable. There are extremely strong opinions and lobbies on all sides of this. Any reform to the US patent system will happen slowly, carefully, and incrementally. Congress is too spineless to actually enact anything like this, and the Supreme Court is extremely reluctant to make any decisions on this.

Most likely, reforms will continue to occur at the margins, according to Federal Circuit appeals decisions. One day, the Supreme Court will review Alice, etc. and we might get a nudge one way or the other.

He may not be a Luddite, but he is a sitting congressman, so some level of corruption/bad faith should be assumed.

The ironic thing is that moving back to "first to invent" works in favor of big companies who can afford armies of patent lawyers to argue over who was, in fact, "first to invent". First to file is much more egalitarian and more favorable to startups, small companies, independent inventors, and suchlike.

And yes, I get that "first to invent" feels more fair in a certain sense. But from a pragmatic point of view, first to file makes more sense. It's also more consistent with how most of the rest of the world works, if I recall correctly.

  > The ironic thing is that moving back to "first to invent" works in favor of big companies

honestly, i really wonder if that isn't the actual goal of this legislation... especially considering where most lobbying/funding comes from...

Here are some pertinent facts. Rep. Massie did not write this bill. No member of Rep. Massie's staff wrote this bill. The bag-man (lobbyist) who is compensating Rep. Massie for introducing this bill also did not write it. In fact I wouldn't be surprised if neither Rep. Massie nor any of his staff have even read the actual bill, rather than the executive summary. So who did write the bill then? A reasonable assumption is that it is some party who stands to benefit greatly, probably to the tune of billions of dollars, that had their staff attorneys write up the proposed bill. Our entire legislative system has, over time, been warped to maximally obscure the identities and, to a lesser extent the motivations, of the parties that actually write the laws.

All that being said, your surmise that someone with an electrical and mechanical engineering background would see patents through that lens is plausible, but sadly probably irrelevant.

The above is true for all legislation in the modern day USA. Virtually no "legislator" has actually legislated in decades at the very least. Occasionally a member of congress will have their staff write up some bill for political purposes, but nobody takes them seriously, not even the members in question.

Do you have proof of anything you state in your first paragraph?

Maybe he just recycled the STRONGER patent act?

This is so true. K-street mostly writes bills and then invites staffers over for reviews before they hand them off with the check on the side to the reps who vote on them without ever actually reading them. Those staffers are often plied to do the bidding of k- or whatever letter street, with stuff like offers of a job later. (See Jack Abramoff's talks) Such a bullshit state of affairs.

Our representatives don't represent us at all. We live in an oligarchy.

I think I could make an argument that who wrote it is not important when it comes to the question of who you should hold accountable for a bill. Rep. Massie introduced it and attached his name to it as a sponsor. Therefore Rep. Massie should be held accountable for it's contents regardless of who wrote it.

A technical background may be helpful for understanding IP, but certainly not sufficient. Compare Massie to someone like Stephan Kinsella (BS and MS in electrical engineering and a law degree) who literally wrote a book called "Against Intellectual Property."

It’s a difference in mentality between “old world” (EE, MechE, ChemE, pharma) and “new world” (CS) engineers. In old world, capital intensive industries, patents are a unit of currency in relationships between big companies. It’s the new world, mostly software guys, who have a different mentality. Partly because they have a lot of bad patents in that field. But also because it’s just a more fluid, less capital intensive field. It’s not GE versus Rolls Royce. It’s a startup someone started in their garage. The inventions are not things that took a team of a dozen engineers years to come up with, but often are things that people reinvented by accident.

It's also an east coast vs west coast thing. East coast culture is, go work for a big respectable firm, put on a suit and tie and dissolve into the thousands of others just like you. West coast culture is, go invent something new, form a scrappy team and achieve unicorn status. If you fail, you get points for trying.

Yup. New Jersey versus Silicon Valley.

You guys say that but Massie has his own startup. It isn't in silicon valley but he did start it in college based around technology he invented.

In the old fields, in a lot of cases, inventions also outlive their patents in their usefulness (which is how it's supposed to work). In software, a lot of the time, by the time the patent expires, something better will have been thought up.

Every attempt to strengthen a form of intellectual property should be viewed as an assault on individual rights for the benefit of whatever corporate entity can most effectively capture, hoard, and exploit it. Strengthening patents in particular holds the special distinction of being a direct attack on the means by which entrenched structures are most often disrupted: Technological innovation itself

> 7. End Automatic publication of patent applications.

This seems very problematic. Publication of pending patents gives others the opportunity to demonstrate prior work before the patent is granted.

Now include new complicating factor: AI creating thousands of patients per day and you have a big mess. One that ends with no one being able to innovate.

Easy fix -- until the day when we've created a truly sentient AI (one which should be considered a person), only natural persons to hold patents (make them non-transferable as well and we'll have made a good bit of progress against patent trolls).

If we ever do create an artificial entity that rises to the level of true personhood, we'll have to reconsider a whole bunch of laws anyway, but this seems like a decent temporary fix until then.

It also allows a convenient way to publicly disclose inventions so that others can't then patent them and block you.

Abrogation of Alice, Mayo, Bilski, and Myriad “to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.”

Wow. Thomas Massie is fucking insane. This has to be one of the worst ideas I've ever heard, and I've heard some real whoppers in my time.

Sure, let's bring back "implement X on a computer" as a valid form of patent and enshrine that nonsense as doctrine. This will result in the issuance of thousands more bad (really bad) patents which will totally fuck innovation and do nothing but make more money for patent lawyers.

Couldn't agree more. If anything we need new legislation that reminds the patent office that doing math on a computer is the same thing as doing math, and the concept of software patents is clearly invalid by definition.

Moving in the opposite direction is insanity.

If anything we need new legislation that reminds the patent office that doing math on a computer is the same thing as doing math, and the concept of software patents is clearly invalid by definition.

Absolutely.

And as for "life sciences discoveries" - that's treading on some dangerous ground if we drift into the possibility of allowing patenting of human genes (see "Orphan Black"), or locking other naturally existing compounds and genetic sequences behind a patent. And you know companies are going to try to do all of the above, and probably other Bad Ideas that I can't even conceive of.

The problem with introducing legislation like that is you end up with the default assumption that it did not exist before the legislation.

> Wow. Thomas Massie is fucking insane. This has to be one of the worst ideas I've ever heard, and I've heard some real whoppers in my time.

I'm pretty sure if you look through all the bills proposed by every Representative in Congress, you'll find a lot of insane stuff, but almost all of it has zero chance of going anywhere.

why does it exist if it has zero chance? I will answer, it does have a chance, just a small one.. and the rewards are so large, it keeps happening.

I stood vocally against software patents in the early 90s California, only to have Barbarians from the North make the World's Richest Man for twenty years straight. How is Chapter XXIII going? guess what...

> why does it exist if it has zero chance? I will answer, it does have a chance, just a small one.. and the rewards are so large, it keeps happening.

Not necessarily, a bill can have value that's computed from something other than its expected chance of passing:

1. an inexpensive sop [1] to some constituency or interest group,

2. a psychologically-pleasing expression of genuinely-held beliefs that are out of step with the consensus,

3. a decoy meant to make some other bill look more reasonable in comparison,

4. legislative make-work,

5. etc.

[1] "something of little importance or value that is offered to stop complaints or unhappiness" https://dictionary.cambridge.org/dictionary/english/sop

ok good call -- but I think number three there is most likely in practice here.. monetary license bills don't seem like a candidate for "sincerely held beliefs" to me

> ok good call -- but I think number three there is most likely in practice here..

Then what's the other bill then? I think it's more likely something 1., 2. or 5. (which I just added after your comment), given the backers of the bill are in the minority and likely have little influence on anything, given the current levels of political polarization.

> monetary license bills don't seem like a candidate for "sincerely held beliefs" to me

Looking at the sponsors (Massie (R-KY), Gohmert (R-TX), Gosar (R-AZ), and McClintock (R-CA)), they seem like they're on the right wing of the Republican party. It's totally believable this might be some kind of reflection of "sincerely held beliefs" in property rights.

Edit: Sayeth the Wiki:

https://en.wikipedia.org/wiki/Thomas_Massie#Other

> Massie describes himself as a constitutional conservative. He believes in intellectual property and thinks it is necessary for incentivizing innovation. Massie has remarked that this is one of the areas where he is not a libertarian.

hmm .. well I can say that as a US citizen, I was really shocked and upset a very long time ago, to find that some non-English speaking countries were completely and utterly throwing out copyright law on English language works. I was raised in an environment where an individual author could make a living (and own a home). This seems to be less-and-less true over the decades in the West.

Meanwhile, software patents were always, from the beginning, a tool of very large corporate interests to secure revenue from "soft" implementations. No individual author of software that I encountered, gained in a meaningful way from Software Patents. At the same time, certain companies you know now as the largest in the world, aggressively added engineers and rewards for filing software patents.

Even with strongly conservative, even Libertarian views, I do not see how these representatives and their close constituents, adhere to anything but the advancement of corporate interests, especially in thriving bio-tech of today.

The circumstantial evidence here does make the outsider judgement a bit murkier, definitely.

I bet if you did some research you'd find he's not insane, but that he has substantial financial ties to companies/people, who would benefit from this.

I think it's safe to assume "insane" here is a stand-in for "insane to put those interests ahead of those of his constituents." That is, of course, if you accept that he considers his voting bloc his constituents in the first place.

Here in Europe they are trying again via the Unified Patent Court, which will be free to declare software patents valid using the "as such" or the "technical effect" loopholes, without any possibility of appeal to the CJEU.

They are trying to bypass Brexit with a dubious secret "interpretative declaration":

https://ffii.org/unified-patent-court-committee-refuse-acces...

> Rep Massie (R-KY)

I wonder if KY saw TX's highly successful patent shakedown sector and wanted in.

This is some ridiculous, “doing an already common idea but on a computer” has no ground for “invention”. Doing math is math.

This is a Republican-sponsored bill in the House so, unless it has Democratic support, is going absolutely nowhere.

I'm actually a little surprised this isn't Democrat-sponsored. It may find traction with Democrats unfortunately because one of the key supports of Democrats are trial lawyers. It's one reasons Democrats have historically opposed tort reform. Patent litigation is a jobs-for-life program for lawyers.

But there's no sign yet of this enjoying any kind of Democratic support. I would've expected a Democratic co-sponsor at least. The authors certainly could've found one but there are none.

So who is this aimed at? What group are the sponsors currying favour with? It's really not clear. If there isn't one then that really means the authors think this is a good idea, which is... insane.

There's absolutely no reason for software patents to exist. None. Let copyright law handle IP protection for software.

What about in less than two years? Republicans could control both the Senate and the House then.

This could have legs in the future, if it becomes part of the Republican platform (I.e. McConnell and that Kevin dude whip for it).

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