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Comment by dantheman | Hacker News Reader

"In a worst-case scenario for the high-tech industry, the ruling could invalidate many existing software patents or at least make them more difficult to defend in lawsuits. And it could make such patents harder to obtain in the future because software is generally patented as a process for doing something rather than as a physical invention."

I think that might be the best case scenario.

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Oral argument was held today - tough day for the patent applicant, with much skepticism expressed by the justices toward the idea that business methods (and, of course, any software that might implement them) should be loosely patentable: Justice Stevens: "None of our cases has ever approved a rule such as you advocate"; Justice Breyer: applicant is arguing "anything that helps any businessman succeed is patentable"; Justice Scalia: patents are given to inventions that are manufactured or produced by workmen, "not someone who writes a book about how to win friends and influence people."

Not good portends for a favorable decision for the applicant.

On the other hand, several justices overtly questioned the highly restrictive test adopted by the lower court that would essentially gut many business method patents.

Looks like this could go all sorts of directions but not likely to any extreme.

The transcript is available from http://www.supremecourtus.gov/oral_arguments/argument_transc... for those who are interested in more.

I agree that the pendulum today is too strongly on the side of patent trolls.

But have you seriously thought about what a world without patents would look like?

Actually, you can. Visit China. On Monday, the boss of a factory will give you a tour and shows you how they manufacture the iPod case exclusively for Apple. The next day, they offer you to manufacture the exact same design, just for you, for very cheap. IP? What IP?

Personally, I'm hoping for a middle ground. Not all patents are bad, but too many stupid patents is an abuse of the system.

(before you mod into oblivion, let me state that I have standing to discuss this issue, having been sued for patent infringment myself - I know the pain)

Is that really so bad, though? I know that I could get a knock-off of an iPod. But my iPod has guaranteed support from Apple, and it gives me a good feeling to know that I have the "real thing", and not a "fake". For that matter, I could also get a Zune, but I have standards. ;)

If your business model could be so easily undercut by competition, you're Doing It Wrong. People pay more for perceived status and soft values. And the people who are looking for knockoffs were probably never going to be your customers in the first place.

Validity of software patents goes on trial today at Supreme Court. I'm hoping for the death penalty.

You can still have copyright protection without patents. Besides your example is specifically a physical device which isn't the kind of patent being talked about.

You miss the point. A specific case design is something completely different than patenting 'ways that stuff can be done'.

I really hope the EU does not introduce software patents. This is just the thing to stiffle innovation.

The idea behind patents was to encourage innovation by guaranteeing certain rights to the patent holder; unfortunately, software patents have probably hurt innovation more than it has helped out.

Nobody brother to read Against Intellectual Monopoly then.

http://www.dklevine.com/general/intellectual/againstfinal.ht...

People should really seriously consider if a whole system is entirely flawed sometime or it may never do anything for innovation anyway.

As for me, the question is already decided. As an anarchist, I opposed patents on the ground that it is a property right violation. The innovation questions doesn't matter to me.

So, would you argue in favor of a constitutional amendment? Because as far as the US Constitution is concerned, the innovation is the only thing that matters.

Since an amendment is clearly not what's under debate here, what do you think would be the most appropriate resolution for this case, within the constraints of the current constitution?

A thesis of "Against Intellectual Monopoly" is that patents, of all kinds (software, hardware, pharmaceutical…), are at best inefficient, and at worst detrimental to innovation. The reason is that in all domains, research is incremental, at least to some extent.

Suppose this thesis is accurate.

If US constitution just cares about innovation without stating that patents are an effective way to achieve them, no need for an amendment. Just ditch the patents (and smooth the transition as much as you can).

The true, unresolved, question is whether patents enhance innovation at all in any domain. My personal opinion is that they probably don't. If they do, whether the relevant domains can be clearly and legally delimited. My personal opinion is that very few or no domain can.

The problem is, this is my personal, partially informed opinion. I bet about 99% of the western population don't have an opinion at all. So, I think a good start would be to gather data, and inform the population. While they may not care about patents, I bet they care about having better and cheaper goods, saving the planet… When enough citizen have an informed opinion, they could back up a proper political debate (which I feel we need).

I upvoted you because it is a good point, but ... who is advancing the most quickly in manufacturing these days? That would be China....

Plus, I would hesitate to naturalize the idea of intellectual property as if it were a "thing" just like a cheese sandwich. Some of your argument seems to rest on protecting IP which (somehow) exists; a lot of people would doubt that IP is a valid concept or exists at all.

I would offer that in any regulated system you can excel by ignoring the regulations if others insist on adhering to them.

And the "regulation" in this case is for China and other developing nations to pay a tithe to more developed nations because they got there first and planted a flag on some unclaimed (intellectual) property.

I think you are confusing contract law with patent law. There isn't really anything about the iPod that should be patentable, but Apple should certainly insist (in contract) that their manufacturers not give away their design.

Yes and no. The ipod wouldn't be particularly hard to reverse engineer. Should a third party be able to simply copy the ipod in order to cash in on Apple's brand equity?

Granted that's not really a patent issue either, more like trademark, but in any case, I think the GP's point is a good one: copyright and patent law have their place, just not the way they are currently used.

>The ipod wouldn't be particularly hard to reverse engineer. Should a third party be able to simply copy the ipod in order to cash in on Apple's brand equity?

Yes -- see the history of the IBM PC for perhaps the most famous example.

Yes -- see the history of all technology innovation for perhaps the most famous example.

I think patent, copyright and many other things are all mixed up here. Can someone tell me about a case of "software patent" (not software copyright, not hardware patent) where it promoted innovation?

Yea you're right. Who these days come up with great software idea just to get a patent? We create new technologies because we know there will be great rewards (or other motivations), and we get the patent just to protect ourselves from the patent system. Therefore the patent system at least in its current state is purposeless.

Video compression - a lot of companies saw it fit to invest into DVD,MPEG2,MPEG4 etc to rip benefits later. Of course if they hadn't done it we would still have video codecs as demonstrated by DivX, XVid and various open-source video codecs. I think the difference here is that the the patents helped video codecs rich mass users faster than would be the case without them, but became a huge drag after some point.

Pretty much like any other investment, if you think of it.

Maybe you've got a point, but you've not presented any evidence.

DivX and Xvid and most "open-source" video codecs infringe on the same basic patents and so require patent licences from MPEG-LA.

The question at hand is whether the same amount of companies (or simply enough) would have invested in video codecs without the ability to create monopolies via patents.

So you're saying we need patents because people will completely ignore those patents anyway?

That isn't much of an argument.

But have you seriously thought about what a world without patents would look like? Actually, you can. Visit China.

During the Industrial Revolution, the US was the world's cesspit of IP violation. Charles Dickens had to do his US book tours to promote _A Christmas Carol_ because it was so widely pirated, there was no hope of capturing all but a small sliver of profits from book sales. However, this ended up making Charles Dickens pretty well off.

The US didn't do too badly out of it either.

The iPod is hardware; isn't this case about software patents?

Agreed...it all makes sense when you see the quote a few lines down from that:

"The software industry would lose an important incentive to innovate if the government ceased issuing software patents," warned patent attorney James Carmichael, a former judge on the Patent Office board of appeals.

I wonder, If "the industry" spent the resources allocated for software patents on additional R&D, could consumers even handle all the innovation? Besides, when was being the market leader ever an incentive for companies :-D

There was a cool talk on the problems with software patents by D. Ravicher: http://www.youtube.com/watch?v=d0chez_Jf5A

I just can't imagine something like an Augmented Reality iPhone app being patented by a restrictive extortionate company. It's basically the Terminator vision on a modern handheld device. But then again, look at all the ridiculous applications http://www.google.com/patents?q=augmented+reality+phone+came...

I would like to see this supported (or not, methinks) by empirical evidence. A priori arguments without evidence aren't worth a damn, in my estimation.

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