EFF taking on software patent reform | Hacker News Reader

EFF taking on software patent reform

defendinnovation.org

157 pointsbits60 comments

EFF's position is too moderate. 5 year monopoly on software ideas? If not even the EFF is willing to take an unequivocal stance against software patents, the trolls and the system will keep their legitimacy.

We should not be afraid to take (seemingly) radical positions. Fear of offending the status quo is what keeps it in place. Not too long ago the idea of patenting a theorem or a gene was dubious; the moderates may only slow the tide, not push it back.

We don't have unequivocal evidence that the status quo is wrong. It is prudent to take small steps and study the effects carefully after each one. Startups are rewarded for being bold. Countries can't take 80/20 decisions on faith.

Whatever the direction the evidence points to, it's likely massive. The real problem is to sort it out. In this respect, I very much like EFF's proposition to conduct a study about the effects of software patents on the economy. (Personally, I'd do that for the other patents for copyright as well, as well, but narrowing the field has its benefits.)

While the EFF is prudent, I expect a proper study to yield much bolder results, with the evidence to back them up.

I believe EFF tries to avoid fight back from Big Corps. However, you're absolutely right. Software patents are absurd and should be abolished once and for all.

Extreme positions can typically only be accomplished in dire times. Outside of an extremely dire scenario, what you'll accomplish by taking the abolish software patents position, is nothing.

If you want to make progress, the EFF is taking the right tact. If you want to be idealistic (and that's fine I'll emphasize), then stick to your guns and you'll see zero progress, but your ideals will still be intact.

> then stick to your guns and you'll see zero progress, but your ideals will still be intact.

That would require some self deception. Those who have an ideal, and know at the same time that sticking to their guns wouldn't work, shouldn't stick to their guns. Unless of course they only want to signal an ideal, which I concede is easier than actually trying achieve it.

So, good engineers know what happens if you try to just take a complex system and change everything at once, instead of incrementally. Certainly government does (witness the number of "hey let's start from scratch and come up with a much better system" that are 10+ years overdue and many billions over budget). The RIAA/MPAA knows too (make small-medium sized changes using bills that push in the direction they want until it's death by 50 cuts).

Yet, I always see otherwise rational people wanting to just blow the patent system up. What makes you think this is a goal achievable in one step? Why isn't the EFF position a good starting point to get there eventually?

Just because the system sucks really badly doesn't mean you'll be able to change it in one fell swoop. Doing that with healthcare in the US took 20+ years, and we arguably did not end up with a better system, just a bunch of incremental improvements.

Yep. I'm reminded of Don't Ask, Don't Tell, which in 1993 was a GIANT step forward for gay rights (you should have seen the elation during the March on Washington). It worked so well, it moved the Overton window so far, that 19 years later it represented all the facets of the discriminatory policies it had once replaced.

We don't want a different system. We want no system at all. How's that so hard to grasp? Every single proposal to "fix" patents so far either involves fighting bureaucracy with even more bureaucracy (that's suuuure gonna work out) or are based on the naive assertion that a shorter evil is somehow a lesser evil.

People need to acknowledge already that the patent system is not just a little broken, it's fundamentally broken to its very core. You can band-aid it all you want, it won't fix the inherent problem, and that is and always was the paradoxical claim that slowing down progress will somehow lead to more progress, as well as the utterly illogical assertion that you can, in any way, own abstract concepts.

I completely agree with iwwr: don't be afraid to take the "radical" stance for the sake of a twisted form of political correctness. If something is bullshit, then say so, and demand it be stopped. Not weasel around trying to appease the people who profit from the status quo. Patents are bullshit - the only good patent is a nonexistent patent. Period. So demand that we get rid of this impediment to mankind.

I think you missed the real question, so let me rephrase.

It's not hard to grasp as an abstract concept, and in general it's a concept I mostly agree with. What i'm trying to grasp why you think this "blow up the world" will work as an effective strategy to get there, instead of "incrementally destroy the system".

You are trying to fight a political fight here, and "radical stances" rarely work well there. If you are going to "Demand we get rid of this impediment to mankind", expect to never get rid of it. Change doesn't happen by screaming about how bad things are, and taking radical stances, change happens by doing something about it, be it legislative lobbying or otherwise.

Actually, it's valuable to have both (the radical as an anchor, the moderate to define a path), as long as they don't spend so much time fighting each other that the real goal never occurs.

The more people take the "radical" stance, the less radical it becomes (relative to the status quo). That's my whole point. So stop bickering about how we'll never get anything done with demands for abolition - demand it be done, and tell others to do the same. It's that simple.

Not all of us think abolishing all software patents is the solution here. Don't think the entire industry agrees with you. Perhaps in the silicon-valley-startup-bubble, but that's about it.

What they're doing here is good strategy.

Option A:

EFF: "Hey, legislators, you should abolish this system that we've had for decades and you don't understand. Let me tell you why the interlocking parts of a software algorithm are totally different from the interlocking parts of a car engine ..."

Patent Trolls: "This is a pie-in-the-sky proposal that would never work in practice and would undercut our economy in the one area where we're seriously dominant! [1]."

Option B:

EFF: "Hey, legislators, our economy depends on software, and patents are screwing it up. Software moves really fast, so we should limit the time a patent lasts to five years. And lots of the things that are getting patented are really obvious, so if something is so obvious that someone else invents it independently, they should be allowed to use it -- that will avoid the need for lawyers to review every single program that gets written. And software projects are often incredibly huge, so we should make it so millions of dollars won't be awarded for a violation that consists of .001% of the project. Can we hold some hearings to talk about this stuff?"

Patent Trolls: "These are pie-in-the-sky proposals that would never work in practice! Hang on while I try to come up with a reason for that."

Option B is 1000 times more likely to get us in the door. And once public hearings start and legislators actually start to have some idea what the issue is, that's our chance to make the case (in the media, through lobbying, and through testimony) that we'd be better off without software patents at all.[2]

[1] "... other than music and pizza delivery, obviously."

[2] If this is true. It's totally possible that, within the boundaries the EFF is proposing -- short-lived, open-source, non-obvious, damage-limited, subject to prior art up to 2007 -- software patents would actually become a force for good, in complex areas like compression, encryption, language processing etc. A game where highly-funded research programs are racing to stay 5 years ahead of open source projects that incorporate all their best ideas could be pretty sweet. It's worth discussing anyway.

Besides the above, which is completely and utterly true, legislators often want consensus, if they can get it (I realize how crazy this sounds, given the way bills often end up). They don't want to be forced to pick sides when it's large companies that support one side vs other large companies that support the other. Not just because of the lobbying money involved, but because they think they are trying to do the right thing, and if it's 25 folks they trust on one side of an issue, and 25 on the other, they aren't likely to do anything.

Perhaps it's worth having both the maximal and the moderate positions -- the maximalists introduce the pure form of the idea, shifting the Overton window, so the more moderate version becomes palatable.

http://en.wikipedia.org/wiki/Overton_window

A 5 year monopoly on software ideas is no more ridiculous than a 5 year monopoly on mechanical ideas or chemical ideas.

True.

In fact, for every field X, most X engineers don't want patents to apply to field X.

Most drug researchers I have talked to have been in support of drug patents and only have issue with DNA related patents. I think the real issue is patents work best for well developed fields, and tend to have issues when things start moving quickly.

Very different. The cost of coming up with chemical compounds is often quite large. With software most new work is done by very few people.

At the same time, a successful chemical compound might mean tens of billions in sales. A modest software innovation might have a very niche application with much smaller sales.

Is a small research team less entitled to protect their novel work than a big corporation?

If you use the word "entitled", you're thinking about this wrong. Patents are not designed to protect fundamental rights (e.g. to a "reasonable" profit), they are designed to maximize societal good by balancing a monopoly incentive with the benefits of open use.

That will be solved in part if patents get assigned a value (on which 'damages' etc. are based) that are proportional to the work that went in. For a software product that contains thousands of good ideas, the value of each of those will be only a fraction of the value of the total product.

Then, of, course, the idea of blocking sales of a product because of infringement should also be completely abolished -- some money should be the most you can get.

"If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees."

By offering to reduce the time to five years, they are implicitly supporting the idea of using and defending the patent for those five years. You might legitimately think there's infringement and then the court might find otherwise. Calling anyone who goes to court with a patent a troll seems unnecessary in that case.

"Infringers should avoid liability if they independently arrive at the patented invention."

You don't pay damages, and then what happens? Do you still have to get a license or can you keep going because you invented it on your own? Also: how do you prove you independently arrived at the patented invention? Who's burden is it to prove / disprove it?

Wrong. EFF, this is not what we the members are asking - software patents should be abolished, not changed to "acceptable" terms. It's just a boil-the-frog strategy. There are no conditions that would make software patents a good thing ethically and economically.

Indeed. I was about to go contribute, but then I saw that it's a total concession in principle. I don't want haggling over how much when a robber robs me at gunpoint, I want the robber to be stopped. I don't want a concession to the principle that robbing is legitimate.

Number 4 is a tragically bad idea: "Infringers should avoid liability if they independently arrive at the patented invention." I love the EFF (and donate) but as a litigator it appears entirely unworkable. The root problem is that this proposal commingles the standards for copyright and patents. In copyright law, independent creation means there was no copying, and thus no infringement. Patents (sw or otherwise) are entirely different and exist for different purposes. Patents protect early work done by inventors from poaching by later (or larger) entrants. The inherent tradeoff is that the inventor must disclose to the world how his invention works in exchange for receiving a limited time period of market exclusivity. (EFF #1 is spot-on that the current time period is too long for software). However, the EFF is saying "If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it." If all inventors required was copy protection, they could rely on existing copyright law. Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles. Done right, a patent system should protect small inventors whose creation is groundbreaking in their industry, but that could be easily reverse-engineered or duplicated by the big players based simply on recreating the inventor's product without literal copying. TiVo vs. cable DVRs is a good example.

I agree wholeheartedly.

Slightly off topic, but there is a general modification of IPR law that I've never seen discussed but that I think could affect some very interesting change: simply require that licenses are available to all on reasonable and equal terms. For every registered patent or copyright there would also be a license template, ready to fill in, with payment details, preferably machine readable...

You could apply that principle to copyright as well as patent rights. The consequence for copyright would be e.g. that large record labels would be forced to license their music to all online services, or not at all. If the government enforces a "monopoly" then why not also enforce an even playing field?

Yes #4 could be problematic if not implemented carefully, but it is addressing a real problem. Parallel evolution is commonplace in the tech industry. In the current system, if two (or three, or twenty) companies legitimately and independently happen onto the same idea, whoever gets the patent can blindside the others. Often after the other inventors have made large investments in developing and fleshing out the idea, possibly to a much greater extent than the patent holder. This makes no sense, whether you're interested in promoting innovation, or simple justice and fairness.

I think the impetus for #4 goes away if we raise the bar for obviousness, which we need to do. If you patent a complicated system, it's vanishingly unlikely that someone will come up with an independent version of the same idea within the patent term. If 20 companies legitimately happen onto the same idea, to me that suggests the idea is too obvious to be patentable.

Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles.

What is this doctrine of equivalents and other established principles? I'd like to know if it is reasonable for software or was developed for other fields and then misapplied to ours.

Also, can anyone point to an example of a small inventor who made a groundbreaking software contribution, patented it, and then profited from that patent as it was applied by big players on a large scale? Since that's the use case that's supposed to justify software patents, it would be interesting to see some examples. Given how many counterexamples there are (basically, all the ones we hear about), it seems likely that this argument is a straw man, or whatever one calls a straw man when somebody's arguing in favor of it rather than against.

A lot of people think we should get rid of software patents entirely. I'm curious to get peoples' feedback on this:

I spent years working for a wireless startup. Our innovation was in the domain of software, but our product was not software--software just drove the product (military radios). The algorithms took years and millions of dollars of research to derive, and we patented them.

I think that business model is valuable, and it's extremely common. The companies that manufacture radios, telephones, networking equipment, etc, don't necessarily have the agility to come up with innovative software, and the small firms that can come up with innovative software don't have the manufacturing capability to go into the end-user product market. Software patents allow them to focus on their core competencies, then engage in mutually beneficial transactions with the assurance that the legal system will keep them from getting ripped off.

So my question is: how would businesses like the above work without software patents?

I'm ok with algorithm patents. It seems like the vast majority of abuses involve business method patents. I'd like to see those abolished.

Doesn't copyright law already cover this?

For some types of software, say operating systems, the hard work is writing all the lines of code. No device driver is ground breaking, but all those devices have to have device drivers and someone has to write them. The product you end up selling is those lines of code. Copyright protects those specific lines of code you wrote.

For other types of software, the hard part is figuring out how the software should work. That's where all the research dollars and engineer time gets spent. The actual lines of code are often an afterthought. If someone saw the code, they could easily figure out how it works and write an independent implementation. They can do that because writing the lines of code is the easy part. Copyright only protects the lines of code, so it can't help here. That's where patents come in.

In both cases, the law facilitates a division of labor. Copyright lets one company write an operating system, and sell it to others. Copyright creates and protects the subject matter of that transaction. Patents let one company design an algorithm, and sell it to others. Patent law creates and protects the subject matter of that transaction.

Now, I don't think the law should be concerned with protecting particular business models. However, it should be concerned with facilitating the division of labor. Indeed, that's one of the key purposes of property law. And that's why I think software patents have to exist in some form. Because I think it's good to be able to separate the process of design from the process of implementation, and without being able to protect design you can't do that.

I should point out that ARM is a very good example of this design/implementation separation. What do you think ARM uses to protect its designs?

Your argument works only if those who patent stuff are (i) better stuffers than most, and (ii) wouldn't have stuffed without patents. This is difficult to measure, because patents hinder those who want to build on your stuff (you want a cut, so it's more expensive to them). For instance, if ARM didn't have the monopoly over its designs, maybe people would step up and do the same work for free. The best analogy I can think of is free software, most notably GNU and Linux.

On the other hand, maybe ARM wouldn't have designed any chip at all. I don't think that would be a problem however. Technology tends to happen no matter what. Independent inventions of non-obvious stuff at roughly the same time are common. I don't know why, but it seems that when an idea is "ready", it just pops out of some earthling's head. (Citation badly needed, please.)

The idea to directly reward innovators is seductive, but I think it puts too much focus on the individual. Society as a whole doesn't need to reward something that would happen anyway. That would be a waste of resources. Not to mention the hoops you have to jump through to maintain an artificial reward system (the legal side of patents an copyright is quite expensive).

Your argument assumes that the world of "stuff" resembles GNU/Linux. Very broadly useful things that lots of people have the expertise to contribute to, where the costs of contribution are low.

Most stuff doesn't look like that. Nobody is designing transmission power control loops in their free time, nor are they designing chemical processes to remove impurities from natural gas before combustion. You gotta pay someone to do that, and it's very expensive to do so.

Also, patents are often construed as a reward for innovation, but I don't think that's the only way to look at them. I think a better way to look at them is like other abstract types of property, e.g. stock in a company. Patents, like stock, allow division of labor and specialization. Nobody is designing high-performance CPU cores in their spare time, but Samsung could pay someone to do it. Without patents, they'd keep the design a trade secret, and NVIDIA, Apple, etc, would pay someone to make their own designs and keep those as trade secrets too. Patents (and copyright), allow a single company, ARM, to specialize in designing CPU cores, by creating property which can be the subject of transactions between ARM, Apple, Samsung, etc. In such a scenario, the patent isn't a "reward" for innovation, but simply a legal abstraction that makes certain types of business arrangements practical.

> Your argument assumes that the world of "stuff" resembles GNU/Linux. Very broadly useful things that lots of people have the expertise to contribute to, where the costs of contribution are low.

I don't think I have to assume that. Individuals have to limit themselves to such contributions, but companies can make the bigger ones. The question is, would they? I think they would, because I doubt many such investments cannot be paid for without a (temporary) state granted monopoly.

(Now, if you abolished patents overnight, that could spur a sense of loss, which would indeed have a temporary chilling effect on innovation.)

> In such a scenario, the patent isn't a "reward" for innovation, but simply a legal abstraction that makes certain types of business arrangements practical.

Then, I would investigate the value of such business models. Specialization is good, but I think the additional specializations allowed by patents are hitting diminishing returns.

I would also investigate other means to enable such business models. If they can be achieved without patents (your example suggests trade secrets would work too, if Apple, Samsung, etc signed non-disclosures agreement to the same company), then that's one more argument against the patent system: between the patent office, the difficult suits and counter-suits, and the lawyers that work on this full time, the sheer organizational cost to society is substantial. If trade secrets can do the same more efficiently (I think it can in your example), then I say let's kill the unnecessary work!

Software patents exist only in the US, those business will do exactly what they've always done in the 90% of the world that doesn't have them.

Software algorithms are patentable, with more or fewer restorations, in the U.S., China, The UK, the EU, Japan, South Korea, Australia, and other countries.

Nonsense, the scope of software patentability is so limited outside the US that they do not influence business at all. http://en.wikipedia.org/wiki/Software_patents

Unless you open-source your code or describe it publicly, I can't tell what algorithm you use.

So there are 2 possibilities here:

1. Your algorithm really requires years and millions of dollars of research to develop, in which case you have little to worry about - your competition is years behind you and probably doesn't have millions of dollars to spend on re-developing the algorithm. Trade secrets will work for you just fine.

2. Someone can quickly and cheaply come up with the same algorithm independently from you, in which case you don't deserve patent protection in the first place.

When it comes to patents, everyone brings the "super hard, expensive to develop" case, which carries the assumption that they're so smart that no other persone on the planet can come up with the same idea.

The reality is that even the patents that survive in courts and reap millions of dollars in damages, are laughably trivial and are a result of routine work of software developers, not to mention the vast number of patents that were granted and then stricken down during litigation, but only after both sides spent hundreds of thousands of dollars on said litigation.

> Unless you open-source your code or describe it publicly, I can't tell what algorithm you use.

But how do I sell it to someone without opening the code or describing it to them? With trade secrets, I'm forced to go into the business of building military radios (or whatever). What sense does it make for a small shop of wireless technology experts to go into the manufacturing business, learning how to manage supply chains, support end-users, etc?

That's the very problem patents were designed to solve 200+ years ago when they were introduced. To allow a separation of design from manufacturing. To allow the guy who invents the telephone to sell it to someone without going into the business of making telephones.

Think of other property abstractions, like stock. Stock allows separation of the roles of investor and manager. The CEO doesn't have to come up with the capital to buy the company, and the shareholders don't have to figure out how to run it. That's a useful separation of concerns. Patents allow separation of the roles of designer and manufacturer. ARM can focus on designing CPU's and patenting the novel features. They don't have to get into the business of manufacturing all of the different products that might contain their CPU core.

Tangential, but was just thinking about this today.

Last week I visited the white house as a part of this program -> http://www.businessfwd.org/

The two topics I brought up with the administration were patent reform and immigration reform. Brought up all the obvious issues that play on HN frequently. Today I got a follow up email intro to someone at the USPTO and here's a copy of my reply to that person. I also pointed him to the defendinnovation.org.

Text of my message to USPTO----

The main concern I brought up during the white house visit was around software related patents and frivolous lawsuits by trolls. I'm sure you get this question often from technology and startup folks, but in my opinion it's pretty clear that the USPTO is effectively levying a giant tax on output of my industry due to issuance and complicit enforcement of patents around elementary concepts.

To me the biggest costs to our economy come in the form of -

- fear of patent conflicts prevent new companies from doing truly novel things that would generate jobs and innovation

- costs of licensing patents from trolls or patent groups impede growth of companies at the most delicate nascent stage (e.g. MPEG-LA or Intellectual Ventures)

- settlements out of court with trolls and/or direct costs of litigation to defend (for the bravest large companies who want to take a stand, e.g. google)

- giant piles of money burned litigating frivolous patent disputes between large companies as a proxy for competing directly in the market (oracle vs google)

In general software patents attract the worst elements of the free market. People and companies that take advantage of the system, who extort, abuse and profit from the structural deficiencies of the USPTO. A typical patent troll group will acquire a set of frivolous software patents covering concepts in use in literally any major piece of software so that technically every large company is an infringer. They will then approach a set of large or medium companies with a veiled threat and offer to sell a share of the patent troll entity. They give a choice to their target to get on board or take an ethical stand and if the victim chooses the later, they'll get sued for infringing and likely be forced to settle because truly there is infringement according to the drafting of the patent that was granted. It's the modern mafia.

The root cause of all of these problems are two fold

1 - granting of patents for non-novel and trivial software and concepts

2 - inability to efficiently litigate and have a patent invalidated by demonstrating that it is truly trivial

Google is a major force of good in this fight and the Oracle litigation has shown my industry a great deal of hope on this front. In particular Judge Alsup on that case showed a very keen understanding of the technology in question and how ridiculous the patent was that Oracle litigated with. That story had a happy ending, but honestly in large part because of that one judge. If this were a different court there could have been a vastly different outcome.

http://news.cnet.com/8301-1035_3-57445082-94/judge-william-a...

My question to you is simple - How can we address these root causes?

The current patent system and review system was not designed for software and is clearly failing to adapt to the current environment and pace. USPTO is granting patents at an ever increasing rate. We quite literally are in such a broken state that I would wager that every piece of software being sold today is infringing on some patent. How long until that structure completely halts the development of any innovation at all?

Too big of an issue to ignore. Thanks for listening.

Recently someone posted a link to change.org petitioning the EFF to take a tougher stand on patents:

Petition the EFF to Oppose Software Patents -- http://news.ycombinator.com/item?id=4134873

I appreciate their efforts, but I disagree with a couple of their points. First, their use of the term 'troll' automatically imbues the reader with a sense of the type of person from whom this effort attempts to protect innovators: people whose single business purpose is the collection and enforcement of patents. That's simply a small, yet quite vocal, subset of the majority of people who benefit from patent law, and who should be entitled to protect their inventions.

With that in mind, I completely agree with limiting the term of software patents. In fact, I agree with limiting the terms of patents, generally; not inventions are the same, and technological innovation across various sectors does not progress at the same rate. Pharmaceutical patents, for example, typically aren't enforced until FDA approval occurs (which is sometimes up to 15 years later, giving them only 5 years to recoup the often immense investment in the research leading to the drug!).

The second point is awful: why should someone with a bona fide claim in patent infringement have to pay when the court rules against their favor in something that's an arguable question of law? Claim construction is done by the court; that is, the judge is the one who decides what claims in a patent mean. If the judge's decision goes against what you reasonably believed to be a correct construction of the claims and the defendant then prevails on a motion to dismiss, but you appeal, and the Court of Appeals for the Federal Circuit reverses, but then the defendant appeals and it goes to the Supreme Court, which agrees with the original judge and by dint of their judgment creates new law? Shouldn't both parties have to pay their respective attorneys' fees here? Of course. Oh, you mean cases of vexatious or malicious litigation, which are effectively extortion? Call the bar association of the lawyers involved, and file an ethics complaint. Patent trolls can be kept in line with ethics complaints.

I disagree with 3, because it violates due process unless there are significant changes to the Patent Act. Keep in mind: there's a major difference between sufficiency of disclosure and actually practicing an invention. Patent law has never required an inventor to actually produce or manufacture their invention, because it understands that sometimes, this is impossible. In software cases, what happens if you've imagined a beautifully complex system that's novel and non-obvious, but the software, skills, time, etc. required to bring it to fruition preclude you from doing so for whatever reason? What if you instead wish to license the invention to someone who can produce or manufacture the software? This provision would perpetuate corporate oligopolies by entitling those with the resources to reap the benefits of patent protection. We cannot allow this to happen.

That brings me to independent inventions: I'm on the fence about this. Copyright law has something similar to this, but patent law doesn't, and I'm not really sure why. My only idea is that during the inventive process, you will always be looking to prior art, and a reasonably prudent person would likely discover the patented subject matter during this process. Of course, this doesn't address the concern with an 'ignorant inventor' independently inventing something patented. Here's the issue: issued patents are published, and the public is 'on notice' that this invention is no longer in the public domain. Of course, there are more than 7 million patents, of which maybe 2 million or so are active. While possible, it's just not the best use of someone's time to ensure that they're not infringing on someone else's invention. But it's also unfair to the inventor who took the steps to patent their invention if this 'independent inventor' is allowed to reap the benefits of something taken out of the public domain with notice given. I guess the problem we have is that notice isn't 'effective', and that falls onto the patent office: they need a better categorization system. This is a problem with the executive branch, rather than the legislative or judicial.

Finally, I just want to talk about the sixth point, that someone shouldn't be allowed to collect 'millions' for a 'tiny infringement.' To me, this discredited the entire post, because it unnecessarily muddies the water with regard to liability. Patent infringement does not lead to treble damages (which I guess they fear), but willful patent infringement does. When an inventor sends you a cease and desist letter and you continue to practice the invention knowing that you're infringing, then you're liable for enhanced damages. But, you have to continue practicing the invention in willful disregard to the patent--it's a jury question.

In short, the patent system IS in need of reform to take into account the mutability of technological advancement. However, let's not jump to conclusions and pollute the Patent Act with exceptions to a technology that appears on its face to be an exception; we need to find and eradicate the root cause of the perceived injustices.

I agree the "loser pays" provision is ridiculous, for the same reason "loser pays" provisions are always ridiculous. It totally chills small firms from taking on large firms who are ripping them off.

Show me 2 examples of small, non-patent-troll company taking on bigger company with software patents. Seriously, I've never heard of any.

I suppose small companies don't even try patenting their "software inventions", they are busy making the product.

I think independent invention is really key to the whole issue. If a particular problem is solved in a similar way by multiple independent parties, then the solution on its face should be unpatentable due to obviousness. Independent invention should always be permissible evidence in overturning any extant patents.

The whole idea of a patent is "but for my ingenuity and investment you never could have solved this technological problem. Therefore you must pay me to use my solution."

If it is not the case that nobody could have solved the problem but the patent holder, then the patent is invalid.

That's a very good point, but recall that the standard is the hypothetical person who is presumed to have known the relevant art at the time of the invention. From KSR, we know that it's this person who's the baseline for determining which, if any, inferences or creative steps are obvious.

If a person NOT falling within this definition were to independently arrive at an invention and could have arrived at the same invention prior to the issuance of that invention's patent, then there's an issue. KSR states: "a person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." It follows that a hyper-creative, one-of-a-kind person who proves that he or she independently arrived at the invention would not be this hypothetical person. Although obvious to a genius in the art, it was non-obvious to a person having ordinary skill in the art. That's where I disagree with your reasoning.

EDIT: This is not to say that the genius in the art should be out-of-luck. He or she should be entitled to continue practicing the invention, but the patent itself shouldn't be invalidated. This should be evaluated on a case-by-case basis and treated as an exception to the general rule.

I don't think this provision will work. In practice software developers would then be required to keep the equivalent of lab notebooks and write down everything they do so if there is a lawsuit it can be proved that the invention is independent. While developers are already forbidden by most companies from looking at patents so as to prevent claims of willful infringement I can see legal departments forbidding software from reading papers and using much of the internet so that in case of a lawsuit it can be proved that a developer truly arrived at a solution independently.

Now the novelty claim is a somewhat separate issue. I don't have a good solution to this and there is a lot of ambiguity that arrises here.

It seems to me limiting the duration of a patent is the best solution. There is some precedent for this with the adjustment of how time for pharma patents are measured.

I think this is a good set of reforms to investigate, but I think a real problem is simply the PTO issuing bad patents, a large percentage in the realm of software, for the past decade or so. By "bad" I mean failing a basic novelty/obviousness analysis.

I think it's more of an issue in software because software developers are essentially producing tens of "inventions" a day, every day, any of which are potentially infringing due to poor PTO operation. Whereas in something like chemical engineering a patent might affect maybe a few hundred other well-capitalized firms at a single point in their process, in software for any given app/developer potentially multiple patents are implicated in the course of a normal day's work.

A lot of patent trolls seem to be exploiting "we got here first nya nya" patents. That is, they patent solutions to problems that the market has not deemed significant enough to solve yet (like in app purchasing, before the iphone). When the market does move and encounters these problems, the straightforward solution(s) are developed, and then in swoops the patent troll.

The PTO just needs to become more sensitive to the unique industry that is software development: the high natural rate of invention, the high likelihood for multiple independent similar solutions to problems, the fact that a problem hasn't been solved yet doesnt mean the first submitted solution should nor can be patented, etc.

I think if a patent holder can show "but for my solution, you never would have solved this problem in a reasonably efficient manner" then sure, let's protect his IP. Determining when that condition is true is obviously difficult, but the current PTO strategy of giving the benefit of the doubt to the patent applicant has proven a bad bet.

I say, at that point, let the FSF "reform" software patents.

This seems like a good first step.

I never understood why people think we should try and abolish software patents. We can't. Period. There's too much money in them. We can attempt to reform or reshape them so they are less destructive, but crying for total abolition seems to be akin to attempting to abolish the IRS. It might make sense in a perfect world, but it will never, ever happen.

>There's too much money in them.

This is not an argument. I'm pretty sure there was a lot of money in the slave markets as well. Didn't stop the US from abolishing it, though.

If we're going to be moderate about this, the source code should need to be public and open sourced after the term of the patent expires.

I think that's probably covered by this: "Patent applicants should be required to provide an example of running software code for each claim in the patent and tell the Patent Office which claims are covered by which lines of that code."

The reference implementation in the patent itself would almost certainly be public domain once the patent expired.

It is already against the rules to patent an algorithm, as they are considered mathematics and thus unpatentable.

The reform we need is just better application of the existing patent rules.

Anyone know the legal distinction between an algorithm, which is not patentable, and a business method/process, which apparently is?

I wonder if a viable legal strategy could be to have the definition of the former extended to the latter in some way.

Most important of all, if you want a patent, provide working code.

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