Richard Stallman: Let’s Limit the Effect of Software Patents

FPGAs? Is an algorithm implemented on a FPGA a software or hardware implementation?

Sufficiently popular software algorithms like mpeg4 (including avc) are often implemented in ASICs for speed. Stallman's suggestion does nothing to help in those cases.

What if Intel introduces new instructions that assist with some patented algorithm but do not carry out the complete algorithm? Software completes the algorithm using the chip instruction. Is that covered under Stallman's software patent immunity proposal?

The dichotomy between software implementations and hardware implementations is unhelpful. If you oppose software patents on principle, whether because you think they're harmful or because you think they're math and are not supposed to be patentable in the first place, why let the camel's nose into the tent by campaigning to allow hardware (ASIC?) implementation patents, but not allowing pure-software implementations?

Perhaps this is better framed as an economic argument. If cost were no object, more algorithms would be implemented in ASICs. There's a limit to the total chip area you'd want to fit into a computer, but a lot of algorithms could be implemented in a few custom ASICs. It's likely that some of those algorithms would be covered by patents. Stallman's proposal seems like discrimination against algorithms that are important enough to make faster execution worth a lot of money.

If software patents are not valid, and I don't believe they are valid, then allowing them to apply to hardware implementations is just applying a band-aid and punting on the real issue. Stallman's proposal may be pragmatic, in that it reduces risk to most start-ups and other entities worried about violating patents in software, but it sustains the confusion about what software patents are and whether they can be valid. I think there's more at stake than the money at issue in patent lawsuits every year. I think broad appreciation of the value of open culture, and recognition that algorithms should be part of that, is worth more than any extra value companies might be able to extract from hardware implementations of patented algorithms due to artificial monopolies created by patent protection.

Personally I'm not extremely in favor, as I'm anti-patent/copyright in general, but it makes sense for someone whose primary goal is software freedom.

He goes on to say "generally used computing hardware" is the opposite of "special-purpose hardware" but I think that definition needs to be really explicit.

Of course then, would anyone in Congress actually pass such a bill?

A distinction with surgeons is their work is not reproducible at near-zero cost; so shielding affects only n surgeons, not all developers and their users (i.e. "most people"). Also, people generally don't die because developers can't code a particular technique. He might get a foothold in software in surgical equipment, but I bet the shield doesn't apply to them.

Patent trolls acquire a large number of bogus patents, sue companies and in most cases settle confidentially. Most companies don't like risk especially when their core business process is threatened. So they settle even if there's a good chance the patent could be challenged. It's not a fair fight...

To limit this abuse we could make patents non transferable meaning you can sell the right to use the invention but you cannot sell the invention. Some will argue that patent trolls could work on behalf of inventors to help them enforce their patents but I think most inventors are more reasonable than the lawyers specializing in patent trolling. There might also be a way to mitigate this risk with some regulation, ideas?

This has several advantages:

1. The number of educated people have risen considerably that we are filing more patents in a decade than the past 100 years. Even if there weren't patent protection, ideas will still continue to be created. By getting rid of the first past the post problem, we are effectively saying we will not grant an exclusive patent for something that someone else could have invented.

2. This scheme does not impact on the R&D that requires long term investment. e.g. pharmaceuticals.

3. It makes "idea patents" easy to invalidate. e.g. using a phone to play music.

However I find it odd that in the preamble he points out Apple, but presumably something like an iPhone would easily fall into the class of special purpose computing equipment, so Apple's case would be unaffected by it. In fact, it might even encourage mobile phone platforms to become more locked down and restrictive so as to avoid falling into the definition of a "general purpose" computer. Thus there could be a very dangerous backfiring of this if the definitions were not clear and broad.

They are so influential right now, and are changing the very fate of the infrastructure of this planet.

It isn't just about money, it's about how the whole ecosystem is poisoned. Either there needs to be massive reform sponsored by the major corps. or small countries will start to break out of treaties to promote "IP freedom" for shell corps.

B) There is already a powerful force that has promoted innovation in software much more than patents, and that is open source. In fact, most of the web sites on the internet are powered by a stack of open source software. Therefore, innovation would take place in this industry even if the government didn't offer a 20 year monopoly to anyone who can disclose a non obvious idea to the public.

C) The purpose of patents is to promote innovation by encouraging the inventor to disclose the details of the intention to the public, in exchange for a 17-20 year monopoly on the implementation of the invention. However, since the industry moves so fast, inventions which are not obvious when patented become extremely obvious "incremental improvements" several years later. This combined with A completely defeats the positive side (to the public) of the compromise, but keeps the negative side of the compromise -- namely the monopoly. The latter costs society in the form of litigations, intimidation of small companies, and injunctions against useful products made by big corporations.

D) Software patents encourage patent trolls to file an invention and lie in wait, or sell the patent to someone who will lie in wait. Meanwhile, they discourage actually implementing technology, because it can infringe on any number of patented inventions. We all realize how much implementation and execution is more important than a mere idea. Thus, it might actually be thwarting the very thing that it's supposed to promote: actual implementation. In the words of Fred Wilson, it is a "tax on innovation".

E) By contrast, open source encourages actual IMPLEMENTORS of software to not only disclose the effect to the public, but release a functional piece of software which actually implements the innovations. Moreover, many Free Software licenses compel those who make use of this software to release their own software in turn. The result is people building on each other's work, promoting implementation and execution over simply disclosing ideas. This aligns much better with the interests of society at large -- and the original purpose for patents.

F) The industry moves too fast for the patent office to keep up not only with the state of the art (they have almost no chance), but even the state of PRIOR ART, leading to many patents being granted that don't satisfy the obviousness or prior art requirements. Sometimes dozens of patents are approved for the exact same thing. As a result, the cost to society is pushed into the legal sector, causing lengthy court proceedings rather than patent office actions.

G) When a small company is sued, even by a patent which can be invalidated, it can often be intimidated into entering a settlement (an unfair situation), or in fact defeated because it didn't have the funds to find the prior art. But even in cases where there was no prior art and the patented invention was in fact not obvious, chances are 99% of the time the "infringing" implementation was developed completely unaware of the patent's existence. See points A, and C. Therefore, the positive side of the compromise (to the public) was completely superfluous, but the negative side hits with full force and effect (see point F).

H) Large companies now spend billions of dollars to acquire patent portfolios for purposes of intimidation, defense against ... patent litigation, and anticompetitive practices -- by which I mean not competing on actual quality and price of the products, but rather trying to artificially reduce the quality and increase the price of the competing products. The costs to the consumer are obvious. Moreover, the costs to shareholders include money that will never be used for actual innovation, but simply the above purposes.

All in all, there are many reasons to abolish software patents in the USA.

If you write a program in say... python which is open source. You can patent that program even though your work is based of something that is publicly available? Or can you only patent additional libraries/new languages?

It's an interesting thought experiment, but treating it as more than that is a mistake.