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Comment by Triumvark | Hacker News Reader

> and to void all existing software patents

The Fifth Amendment states "[No person shall] be deprived of... property, without due process of law; nor shall private property be taken for public use, without just compensation."

In other words, this means a lawsuit for every existing software patent to determine its hypothetical value were the law left as is. The Federal Government is suddenly the defendant in millions of civil cases. It will essentially have to buy every software patent out there. The fallout would destroy everything you love and more.

I know it seems like a sad compromise, but there might be huge practical difficulties with that sort of ex post facto rejection of existing patents. Just tell them to stop issuing new software patents, and urge the judiciary to vigorously scrutinize existing software patents which come before the bench for obviousness or prior art.

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I seem to have lost edit ability, so here's revision 3:

The US Patent system is badly broken with respect to software patents. Patents are being issued to companies for “inventions” that are, in fact, common knowledge included in any introductory software textbook. The result is that the large software corporations are buying up reams of patents and using them to bully small, innovative companies out of business or into paying ridiculous licensing fees.

Quite apart from encouraging innovation, patents are now stifling it.

The software industry is one of the few industries still strong in America. Even in a time of recession, there are not enough computer programmers to fill all the available positions. Startup companies are forming and growing readily. But if every line of code written brings with it a potential violation of someone else's intellectual property, this will cease to be the case.

To solve this problem, we petition the Obama Administration to direct the Patent office to cease issuing software patents and to instruct the judicial system to take a long hard look at existing patents for validity. With these two steps, those of us in the software industry can stop worrying about mutually assured patent destruction and get back to doing what we do best.

A lot of responses are claiming that patents aren't property, or there isn't public use.

35 U.S.C. § 261 claims that "patents shall have the attributes of personal property."

Kelo established the broad reading of 'public use.' Just about any economic intervention could fall under public use, it isn't limited to the government taking permanent ownership.

These are muddy questions debated in legal journals, but if the government is depriving that many people of significant value, then everyone who owns any patents will pitch in to the legal fund. The case is going to be made in its strongest possible terms, and it's something that government would have to seriously worry about.

A law declaring patents invalid would not be taking private property for public use.

Yeah, the only way for this to play out is in the courts. You cant just have the gov't (executive or legislative) just broadly declare "no more software patents". All that would do is make the existing software patents much more valuable and reward those who have them. Because you can be sure that you won't be able to get them away from everyone that has them.

So the only real course would be for the courts to declare that they weren't valid to begin with.

> "Yeah, ..."

There's a difference between saying 'no more software patents from now on,' and 'all those we granted before are automatically invalid.'

My take: while the first one is probably ok, the second would raise specific constitutional problems.

It sounds like you feel both issues are best left to the courts, for public policy reasons independent of the 5th Amendment.

Against my better judgment, I should point out that those positions are not really the same, and that you probably don't actually agree with me.

Patents aren't actually property, so I don't think the 5th ammendment applies. Invalidating a patent doesn't deprive the holder of anything. It just stops the law from injoining others from engaging in protected activities.

I am aghast at the disastrous amount of disinformation about patents in this community. Patents are fundamentally and in the libertarian sense of the word, inalienable property rights, that have value, and that can be bought and sold.

A patent is not an inalienable right. Definetly not in the libriterian sense.

1. A patent is, fundamentally anti-libriterian. It's an example of the government interfering with private action, buy granting exclusive rights solely to a single entity. When the government enforces a patent it intervenes in the market place, picking winners and loosers. In most contexts, that's called corpatism. The fact that the rights conveyed by government granted monopoly can be bought and sold doesn't make them a libriterian concept.

2. The monopoly granted by a patent is not inalienable. Congress has the express power to "promote the progress of science and the useful arts" through granting of monopolies. Any monopoly rights conveyed by congress impede the natural rights of man. They prevent me from manufacturing, selling, or reproducing what I see fit to manufacture, sell, or reproduce. As an action that is fundamentally abhorrent to liberty, congress's power to grant such a monopoly is only valid within the scope of it's enumerated powers. Software patents do not "promote the progress of science or the useful arts", they impede it. So, not only are they not inalienable, they are unconstitutional.

Patents are not property. That's the problem right there. The patent system has been hijacked into a new form of capital.

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