UK Judge: Who needs software patents? 237
Glyn Moody writes "C|Net has a surprising story about a seminar given by a top judge at the U.K.'s Court of Appeal who specializes in intellectual-property law. According to the article, he has "questioned whether software patents should be granted, and has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?"
There are a few good patents as well (Score:4, Interesting)
Re:Huh? (Score:5, Interesting)
But this Judge's opinion is quite representative of the concerns of many in Europe. Remember that the EU software patent directive was rejected [eu.int] by a margin of over 600 votes.
If the concerns of people such as Sir Robin Jacob are well publicised, this can only help educate the public at large and inform the MEPs who vote on such matters.
Re:santa (Score:2, Interesting)
Re:Pay for the Progress Bar You Use! (Score:1, Interesting)
Completely different.
Re:There are a few good patents as well (Score:3, Interesting)
Re:Why NOT allow Software Patents (Score:2, Interesting)
The problem is that most solutions that are obvious and derivative to people within a specialized community are insanely convoluted and novel to people even a step or 2 outside that community. As someone else just pointed out, NTP's patent can be interpreted to cover almost all Server/Client communication, yet it was granted AND upheld in the first round of legal action.
IANAL/A but I remember hearing/reading it averages about US$500,000 to invalidate the most obvious and stupid patent if it's contested.
I do agree that the time limit on patents is much more appropriate, but remember, the darn mouse just got the limits on copywrite protection extended. You think that if M$'s patent on pissing on customers was about to expire they wouldn't get it extended somehow?
Re:Why NOT allow Software Patents (Score:4, Interesting)
Actually, the opposite tends to be true. The bad publicity associated with suing "little guys" tends to prevent big companies from suing. By contrast, lots of the little guys sue big companies all the time -- and quite a few make a good (sometimes almost unbelievable) living out of it too.
If you want a serious example, look up "Jerry Lemelson". In case, you want to see a serious example of how badly wrong Wikipedia can get things, look him up there to start with (if you know anything about him, it'll give you a good laugh).
Though he got hundreds of patents (and they may still be issuing) the only thing he ever invented (and I'm not sure he invented it, but he certainly used it a lot) was the submarine patent -- he'd keep patents "in the system" for years, often even decades. He'd write an initial patent that was exceptionally broad and vague, but then keep writing amendments to it for years at a time. Then, when somebody invented something roughly similar, he'd rewrite his old patent (that was still in the system) to cover what they invented, and claim he invented it decades earlier.
Just for one obvious example, he originally wrote a patent on a computer system. Later, when TI invented the microcontroller (i.e. CPU and peripherals on one chip) he rewrote his old computer system patent by basically adding "and...uh...all of that is on one chip." It took quite a long time, but eventually this did get sorted out in court -- the court fuled that his rewritten patent was invalid because the original application showed no evidence that he'd originally even contemplated what was really the important part of the invention -- moving the peripherals onto the same chip as the CPU.
TI did the right thing, fighting this all the way through court to get a bogus patent invalidated. Most companies, however, won't do that -- if the patent holder offers to settle for (say) half what they'd have to pay for the patent litigation itself, they'll just pay the money, and move on.
Given that a patent case will usually cost millions of dollars, it's pretty easy for "little guys" to go and basically blackmail big companies into giving them a few hundred thousand dollars (or so) with even a thoroughly bogus patent. The afore-mentioned Jerry Lemelson did exactly this to the tune of billions of dollars. Despite the money he made (and his estate still makes, as I understand things) he did stay a little guy in terms of (complete lack of) integrity though.
Re:Huh? (Score:5, Interesting)
- Software development in the US will be more expensive, and/or
- Software sold in the US will be more expensive
I can think of at least one company with a very large lobbying fund that would not be too happy to see this. Currently, software patents are tolerated by US businesses based on the belief that they will be valid in the rest of the world eventually, and the US will have an advantage since they were allowed to start collecting them before anyone else. If it looks like this is not going to be the case, then I can see a lot of pressure placed on the government to revoke them.Re:Huh? (Score:3, Interesting)
Bear in mind that the margin of defeat does not represent the true level of opposition. The pro-Patent lobby suddenly switched at the last minute and told their cronies and shills in the EU parliament to vote against the directive.
Yes, the tide is definitely turning. (Score:3, Interesting)
A year ago, this would have been considered ludicruous and impossible. Now it's for real.
Who needs patents? (Score:2, Interesting)
Me: Who needs patents?
I'll admit I know zero about IP, but as far as I can tell a software patent is simply a subset of patents, so if you can answer the second question, you'll have you answer for the first. Is the patent really the problem?
Why should anyone be able to patent anything? What differentiates a piece of hardware from a piece of software, aside from the medium in which it is presented?
Re:Why NOT allow Software Patents (Score:2, Interesting)
he did stay a little guy in terms of (complete lack of) integrity though.
By this argument, is there anything BUT little guys?
Re:Incentive (Score:4, Interesting)
You can't patent code -- you can patent (for exmaple) an article of manufacture that embodies the code, a method of operating a computer that happens to depend on code, etc.
That, however, is more or less beside the real point. The point of the patent system isn't primarily to encourage research, inventions, etc. Its point is to encourage people to publish their inventions, and to place them into the public domain in return for exclusive rights to them for a short time.
For those who've pointed out that software technology progressed before patents were allowed on software, I'd point out that while this is at least partly true, there are other things to keep in mind. At that time (up through about the seventies or so) software mostly wasn't an industry in itself. Most software was developed by hardware companies like IBM as what they had to do to sell their hardware. Since they saw the hardware as the real product, and the software as having no real value in itself, it was pretty easy for coders to publish what they did.
If there weren't patents today, I'm reasonably certain the situation would be a whole lot different. IBM (to reuse the previous example) has a software business that makes billions of dollars in itself. If they couldn't patent their inventions in this area, my guess is that they would not just publish them and given them away to everybody. Instead, they'd keep them secret.
The patent system is basically an investment on the part of the public. We don't have to put in money (directly) up-front, but we give the inventor some value, and in return we get full rights to their invention (eventually).
As far as bogus patents go: it's true that there are quite a few patents that are basically nonsense. Many aren't really original, and some don't even work at all (e.g. there are currently some in faster-than-light communication). That's more or less par for the course in investments though -- people diversify investments largely because they know at least some things they invest in are going to be complete losers. In addition, keep in mind that what we've given up is the value of the patent for a period of time -- if the patent has no value in the first place, we've given up exactly nothing. In fact, we get even a slightly better deal than that -- the patent office is profitable, so every time a completely bogus patent gets issued, our tax burden (and gov't debt) is reduced by some tiny fraction of a percent.
Admittedly, if you're in the position of the EU (for one example) you're pretty much getting the best of both worlds -- since most real inventions will be patented in the US anyway, you get the benefit of it being published, but without having to give the inventor anything in return.
Given that what we're investing is a limited period of exclusive rights, the real question (IMO) is mostly whether we're investing the right amount of time. This is basically a balance -- if the period of a patent is too short, the inventor is more likely to maintain something as a trade secret instead of patenting it. If the period is too long, we're increasing the cost, and decreasing the payoff. The question is how soon the invention is likely to become obsolete -- if most are obsolete before their patents expire, we're getting a lousy deal.
Re:There are a few good patents as well (Score:3, Interesting)
It's not?
From a patent perspective, a toaster could be claimed as:
It's a pretty straightforward stepwise progression from claim style #1 to claim style #3. Yet, the method claimed in claim style #3 could be embodied in software. How do you draw a line of patentability between claim style #1 and claim style #3? More importantly, why would you?
Software is patentable as a method of controlling a device, possibly but not necessarily including some form of user interaction. It's very difficult to draw a conceptual distinction between the device and the software algorithm. And that difficulty is the very reason why the Court of Appeals for the Federal Circuit made a stepwise progression from denying software patents (Gottschalk v. Benson) to allowing some software patents (Diamond v. Diehr) to abandoning "is it software?" as a relevant factor for patentability (State Street Bank & Trust Co. v. Signature Financial Systems.)
A method is a method - it can be embodied as a circuit, or as a chemical process, or as a machine with moving parts, or as software. It's still the same method. EEs and MEs and CSs have recognized this as a scientific truism for decades. It's kind of odd that when it comes to patents, people want to start gerrymandering.
- David Stein
Comment removed (Score:3, Interesting)
Re:There are a few good patents as well (Score:3, Interesting)
You're missing the point. Claim #3 doesn't mention "software." It could be embodied as software, or as a circuit, or as the moving parts of the toaster. It is claimed solely as a "method," and is protected no matter how it is implemented. At the end of the day, it's just a method.
For many years, U.S. courts tried exactly what you propose: disallowing patents for "software" methods, but allowing patents for "other" methods. They concocted increasingly bizarre rules for determining whether a method was "software" or was not "software." It became an exercise in futility. State Street Bank & Trust, the pivotal case allowing patents for software, was the culminating finding that there isn't any logical test for a "software" method vs. a "non-software" method.
- David Stein
Re:Yes, the tide is definitely turning. (Score:3, Interesting)
If Piratpartiet *does* get into parliament and get any kind of influence (could happen), it would most likely be because they are the Ny Demokrati of the year. Most people have no clue about or opinion on such complex matters as intellectual property. Also, no other party would form a coalition with them.
I *do* share their goals of abolishing intellectual property, but I doubt it is something you can do in less than 50 years. Also, I feel Piratbyrån (from which this has sprung, I'm sure) has been a childish embarassment, seriously harming the cause. They aren't getting my vote.
I disagree -- software patents may not be needed (Score:3, Interesting)
Not necessarily. The costs are different.
Patents are designed to deal with the realities of physical goods.
It is expensive to produce many plows. It takes a while to produce a factory to make plows. Plows, like most physical products, are pretty simple. So, basically, if I decide that I want to make a better plow in a world without patents, the existing dominant plow manufacturer can easily grab my idea (it's easy to reverse-engineer) and start competing with me long before I've ramped up my production. Also, it takes a lot of capital to compete with them -- someone has to be willing to throw money into establishing a factory. There are only a few improvements that can be easily made to a plow.
This is *not* the case with software production. The lifetime of a copy of software is usually only a few years. Even long-lived software packages, which may survive for twenty or more years, are seriously evolving over that time. Their success does not depend on a single idea, but on continued development. The complexity of software is very high, and thus almost everything can be seen as "patentable" -- software developers are must *constantly* come up with new ideas in the course of writing software.
In software, the person who comes up with an idea can probably write a prototype himself, and it's not unreasonable for many ideas for him to even produce a final product. The cost of distribution is extremely low -- there are plenty of one-man software outfits. This means that you need only sell the package for a short period of time to recoup your R&D investment. Furthermore, the time to reverse-engineer software is lengthy. With a plow, it may take no more than a ten-second glance to see how a new mechanism works. With software, it may take a long time of digging through diassembly to figure out the details of how, say, the Quake IV graphics engine works. Thus, the need to create an artificial monopoly doesn't necessarily exist -- in software, the problem that patents solve is at least partially already solved.
In addition, the very low cost of software distribution enables the concept of free product. Someone can create something without direct monentary compensation. This product will meet the needs of many people -- yet they do not require money to do this. This concept cannot exist in the world of plows, because distribution of plows, the per-unit cost of making each new plow, is significant. A good deal of excellent software was created by open-source volunteers. Patents, which a structure that embraces the established organizations that can supply money to lawyers to file applications and lawsuits, hurt open source a great deal -- far more than they affect closed source.
I'm not trying to make a positive argument that there is no need for software patents here -- I'm just saying that I can easily see how someone could make such an argument. I also don't think that the assumption that patents are equally needed in software is valid.
Finally, it is *really* hard to review patents well. Currently, there is *significant* benefit to making a patent obscure and hard-to-understand. Short of drastic changes, like passing something allowing the USPTO to throw out patents because they are "unclear", there is no incentive for filers to make life reasonable for patent examiners.
Some of the most new and innovative ideas I've seen in software (for example, in the peer-to-peer world) exist without any kind of patent encouragement whatsoever. Software patents would only harm development in this area.
Finally, I just really haven't seen any convincing examples where I feel that patents were really necessa
Re:Pay for the Progress Bar You Use! (Score:2, Interesting)
Maybe we could base our economy on, I don't know, making something or providing a useful service.
Even if software patents did not exist and copyright terms were limited (inf) it would still allow artists to live off of their works.