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UK Judge: Who needs software patents? 237

Posted by Hemos
from the the-question-many-ask dept.
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?"
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UK Judge: Who needs software patents?

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  • by eldavojohn (898314) * <eldavojohn AT gmail DOT com> on Monday January 16, 2006 @12:47PM (#14483176) Journal
    While this judge's message may seem absurd, remember to pay royalties when you code a progress bar [espacenet.com] in your application.

    That's right, a whole lot of people owe William S. Andreas and Jeffery P. Foster of IBM a whole lot of money.

    Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

    My church had a fundraiser once and I believe they used a progress bar on a website to track their earnings ... I should e-mail Mr. Andreas and Mr. Foster--the Catholic Church has got deep pockets!

    Say, have any of you Java swing programmers ever typed

    JProgressBar [sun.com] myJPB = new JProgressBar [sun.com]();

    ? Because I was thinking of starting a patent lawyer career, I just need you to reply with your name, contact information and the application you used it on and distributed.
    • by Harmonious Botch (921977) on Monday January 16, 2006 @12:52PM (#14483218) Homepage Journal
      A baking thermometer is prior art.
      • by TheAwfulTruth (325623) on Monday January 16, 2006 @01:15PM (#14483461) Homepage
        No, because a baking thermometer does not track progress. During baking the temp usually remains constant.

        However, using a visual representation of a thermometer to track the progress of a school backing sale to fund the cheerleaders trip to Washington for cheerleading finals would qualify as prior art of the concept at least.

        What really stinks is how ideas that have been in use in various forms for years, decades or even centuries are suddenly now new and novel becuase they are used on a computer. The word "non-obvious" has been completey removed as a screening criteria from the patent process. :(

        That type of patenting must be stopped and all previous such obvious patents reversed.
        • The word "non-obvious" has been completey removed as a screening criteria from the patent process.

          Sir, here at the USPTO we take pride in granting patents without consideration of trifling concepts such as; gross obviousness, unoriginality and indeed patentability itself.
          • by tambo (310170) on Monday January 16, 2006 @05:26PM (#14485961)
            Sir, here at the USPTO we take pride in granting patents without consideration of trifling concepts such as; gross obviousness, unoriginality and indeed patentability itself.

            To be fair, when it comes to software, the USPTO has struggled under two logistical problems:

            • It's really tough to find prior art on a lot of software inventions. Sure, patents like Amazon's OneClick method and Compton's "embedding multimedia on a CD-ROM" method are evidence of obviously deficient examination - prior art should have been easy to find. But consider, say, an algorithm embodying a specific video codec - the only instances of prior art might be embodied in closed-source, commercial video players. Short of decompiling and reverse-engineering a bunch of complex software, the examiner is incapable of demonstrating prior art - especially in light of the USPTO's examiner productivity metrics, which severely limit the examiner's time frame for searching and finding prior art.

            • The USPTO has been really abused by Congress. They appoint patent administration officers not on the basis of patent experience, but as political favors. Worse, Congress views the USPTO as a cash cow and siphons off its excess funding - thereby depriving the USPTO of funding to improve its examination process (e.g., hiring more examiners.)

            It's true that the USPTO could have done better with the resources at its disposal. But it's possible that it just hasn't been given enough resources to meet its responsibilities.

            - David Stein

        • No, because a baking thermometer does not track progress. During baking the temp usually remains constant.
          The temperature of the oven, yes. The temperature of the food, no. Food doneness is usuallly checked by the temperature in the middle of the food: 140-180F for various meats, and a little over 200F for bread.
    • Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.
      He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).
      • He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).

        I don't blame you for not wanting to tread through the law - it's pretty marshy and unpleasant. Even IP professionals consider this to be a rather painful trawl through conflicting jurisprudence. H

    • While this judge's message may seem absurd, remember to pay royalties when you code a progress bar in your application.

      Like most such citations, you apparently have NOT really read the patent claims (or even disclosure) -- it seems to be much more speicific than you imply. As usual, the patent itself contains a discussion of the related art that says: "Users typically need or desire to know the status of such tasks running in the background. Heretofore, this need has been accommodated by displaying a

      • OK, so it covers the use of a progress bar with a cancel button next to it (or a button doing anything else to the task whose progress is being represented), in a status bar, with a caption on top describing the task. It might well be a new combination of features, but is that really patent-worthy?

        Progress bars with cancel buttons are old hat, as are progress bars in status bars (some of which, I'm sure, have cancel buttons) and progress bars overlaid with text. Just because no-one else has combined all
        • It might well be a new combination of features, but is that really patent-worthy?

          I'm not sure I can say it is. I'd tend to agree that it might be open to some question -- but I also think there's a huge difference between something being open to some question, and being clearly bogus.

          I'd also note that from the viewpoint of the patent office having done its job, this is a crucial difference. IMO, it's unfortunate, but the current US patent law favors issuing a patent if there's any real room for dou

          • by tambo (310170) on Monday January 16, 2006 @06:34PM (#14486572)
            IMO, it's unfortunate, but the current US patent law favors issuing a patent if there's any real room for doubt. It basically says to apply for a patent, you have to sign an affidavit saying that as far as you know, this is really your own invention.

            In fact, this duty goes much further: applicants are required (1) to have conducted at least a minimal search, (2) to disclose all known prior art that might be relevant, and (3) to assert their reasonable belief that the invention is still patentable in light of this prior art.

            Unfortunately, very often, applicants wildly shirk this responsibility. One of the damning factors of current software patent practice is that for many issuing patents - including junk like scrollbars - the applicants disclosed no prior art. You have applicants filing claims for inventions like "selling products over the Internet" and disclosing fewer than three prior art references - as if they simply don't know of many businesses selling products over the Internet. It's deplorable.

            This is one of the best suggestions for fixing the USPTO's examination system: start enforcing Rule 56 sanctions, i.e., start punishing applicants (and patent practitioners) who fail to satisfy their due-diligence research and disclosure duties. A few sanctions, including patent license suspension, would prompt a rapid and marked reduction in the number of patent applications being filed, and in the quality of those patent applications.

            - David Stein

      • In particular, the patent only seems to cover a progress bar that's embedded into a status bar AND accompanied by a button that allows the user to do something that affects whatever task the progress bar is related to.

        It sounds like KMail infringes this. When a task is running (e.g. moving a bunch of messages from one folder to another on an IMAP server), a progress bar is displayed in the status bar in the bottom right of the window. Clicking the button to its side with the up arrow on it lists exa

    • This patent is for a progress bar which tracks multiple threads. Why would your examples infringe?
    • Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

      Unfortunately the EPO and its Board of Appeal have been making up their own rules and approving patents on IP which should not be patentable according to the law establishing the EPO. Last night (EST) Groklaw carried this story [groklaw.net] about the European Parliament's recent rejection of the Computer-Implemented Inventions Directive. The essay has many quotes from a British j
    • Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

      Unfortunately, I can't deny this fact but I would like to point a situation so weird that in comparison, US legal system would seem clean.

      It is pretty clear according to the EU laws that a software or an algorithm can not be patented. It is written, it is a binding law of the European patent office. Despite of this, this office delivers software patent. Just like
  • by Morlark (814687) on Monday January 16, 2006 @12:49PM (#14483190) Homepage
    Software patents are already (technically) not permitted here, and yet crazy inconsistencies and loopholes are allowing people to patent whatever they want. Including software and other things that are explicitly not allowed to be patented. It is good that some people are finally starting to look at this from a sensible point of view. Maybe now some progress can be made on making the patent laws sane.
    • Here? (Score:2, Insightful)

      by hackwrench (573697)
      Where is "here" in your case?
    • oftware patents are already (technically) not permitted here, and yet crazy inconsistencies and loopholes are allowing people to patent whatever they want.

      Presuming that "here" = Europe, I think that you're not understanding the full meaning of the European Articles in question. It's a common misconception.

      You have to read both Article 52(2) (which prohibits patents on "software" and "methods of doing business") and Article 52(3) (which, specifically and literally, limits the exclusion in 52(2) to pate

  • Huh? (Score:5, Insightful)

    by Sneftel (15416) on Monday January 16, 2006 @12:49PM (#14483198)
    Is the tide turning?

    No. Judges aren't The Borg. One judge's opinion (and that's little-o opinion, not an opinion handed down) is hardly a watershed event.
    • Re:Huh? (Score:5, Interesting)

      by bitkari (195639) on Monday January 16, 2006 @01:02PM (#14483315) Homepage
      No. Judges aren't The Borg. One judge's opinion (and that's little-o opinion, not an opinion handed down) is hardly a watershed event

      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.
      • But this Judge's opinion is quite representative of the concerns of many in Europe.

        And? Here in the US our government is about to confirm a candidate to the Supreme Court who has been clear in his opinion that the courts of the United States should not look to courts in other parts of the world as barometers of jurisprudence.

        All of Europe could decide software patents are invalid and that would have little bearing on the granting or enforcement of such patents within the United States.
        • Re:Huh? (Score:5, Interesting)

          by TheRaven64 (641858) on Monday January 16, 2006 @02:12PM (#14484094) Journal
          If software companies everywhere in the world except the US can disregard software patents then this will mean:
          1. Software development in the US will be more expensive, and/or
          2. 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)

        by trewornan (608722)
        Remember that the EU software patent directive was rejected by a margin of over 600 votes

        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.

        • Re:Huh? (Score:3, Insightful)

          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.

          Because they knew they couldn't win, and by voting for the proposal that had no chance, they would have hampered their further chances later on. They still weren't going to win; apparently even they realised that.

    • by dajak (662256)
      Judges aren't The Borg. One judge's opinion (and that's little-o opinion, not an opinion handed down) is hardly a watershed event.

      I don't think the courts are the problem. The vast majority of software patents are invalid, and most judges competent in that area, and the lawyers who prepare patents, know that perfectly well. They just don't share their little-o opinion about it very often.

      The problem is patent law. Patents are valid until proven otherwise in court. They can be abused for intimidation of smal
  • by dougmc (70836) <dougmc+slashdot@frenzied.us> on Monday January 16, 2006 @12:50PM (#14483208) Homepage
    Is the tide turning?
    I don't think so. Lots of people have been saying that software patents aren't needed, for a long time, and this is just one more guy. Sure, he's a guy with `credentials', but even that's not so unusual.

    When the patent process actually changes, THEN you can say the tide is turning. Until then, the tide is just growing, like it has been for a long time ...

    • by Karzz1 (306015) on Monday January 16, 2006 @12:56PM (#14483262) Homepage
      I concur 100%. If I see Bill Gates or Sam Palmisano (or even Darl McBride hhahaahahahaha) make these types of statements I might change my mind. However, until the powers that be (i.e. the ones w/money buying up and enforcing all these patents) take the necessary measures to fix the problem they have created, I don't foresee any improvement regarding software patents.

    • The tide will only turn when the whole goddamn patent system comes screeching to a halt, when one can't write software that does any more than print "Hello World" without having ever facet of the program picked through by some species of patent lawyer, where development becomes so difficult that even the larger corporations begin to falter under the weight of idiotic patents and a moronic, ill-conceived patent system which was designed for a novel use of springs and cogs, and not for the arrangement and int
    • When the patent process actually changes, THEN you can say the tide is turning.

      Erm... We don't want the process to change over here. Right now, software patents are of dubious value at best here in Europe, and one of the few things our European overlords have got right recently is kicking out the attempt to change that.

  • by poeidon1 (767457) on Monday January 16, 2006 @12:51PM (#14483209) Homepage
    Though the whole topic of software patents has usually only one solution of abolishing them completely, there were a few good works as well which deserved to be patented for e.g. RSA encryption etc, But these are really very few in number compared to the number of stupid/ridiculous/outrageous patents that are granted.
    • Rank 'Em (Score:2, Insightful)

      by Tablizer (95088)
      Perhaps a compromise is for patent examiners to assign a rating to the patent. For example, C are weak patents, B are medium ones, and A strong ones. If all the "one click" and "same as 1940 except with a computer" patents get a C ranking then judges will be more likely to overturn them.

      Judges don't understand technology and generally give the patent office the benefit of the doubt if they don't get something or are confused. A rating system will allow them more leeway to turn down questionable stuff.
    • by CastrTroy (595695) on Monday January 16, 2006 @01:21PM (#14483528) Homepage
      RSA encryption is a mathematical algorithm. You can't patent that. You can't patent a program that implements a mathematical algorithm either (or you shouldn't be able to). I don't think i've seen a piece of software that should be patentable.
      • by Anpheus (908711) on Monday January 16, 2006 @01:50PM (#14483840)
        I had a choice between modding this down and replying, but I'll give you the benefit of the doubt here. Anything can be described as a mathematical model based on a set of axioms, from which operations on elements can be performed. That's right, your toaster has many underyling mathematical principles, so does your microwave, and any other device. There really isn't a whole lot you can't use some mathematical model to explain. So given your reasoning, there ought to be no patents. Even such ideas as relational databases can be explained quite well using Tuple Calculus [wikipedia.org]. Complex operations within relational databases can be derived from broad mathematical definitions. It's a property of emergence, and in the future I don't see many, if any, fields not represented by some subset of mathematics.

        To put it succinctly, if you don't like patents, simply say so. If you're going to be grabbing for excuses not to like certain kinds of patents, you're not helping the problem.
        • by CastrTroy (595695) on Monday January 16, 2006 @02:09PM (#14484054) Homepage
          The difference between a toaster (which would be patentable if it was a new invention) and software is that the toaster isn't implementing a mathematical algorithm. The resulting actions of the toaster can be explained by physics and chemistry, but isn't the result of pure manipulation of numbers. RSA is just a way of manipulating numbers. A toaster, or any other physical invention should do more than manipulate numbers. unless it's a computer, and it's purpose is manipulating numbers. I have no idea why nobody ever patented the computer. Basically it should work like this. If you can't patent something without adding "software","a computer", or "the Internet" to it, you shouldn't be able to patent something simply by adding "software","a computer", or "the Internet" to it. If you could patent RSA you wouldn't need to patent software that implements it, because that would be covered by the existing patent. Since you can't patent RSA, you can't patent a piece of software that implements it.
          • The difference between a toaster (which would be patentable if it was a new invention) and software is that the toaster isn't implementing a mathematical algorithm.

            It's not?

            From a patent perspective, a toaster could be claimed as:

            1. A device comprising:
              • A container;
              • A toasting surface disposed within the container for holding at least one food item;
              • At least one heating element disposed near the surface;
              • A timing device connected to the heating element; and
              • A user control for controlling the timing devi
        • There really isn't a whole lot you can't use some mathematical model to explain. So given your reasoning, there ought to be no patents.

          An explanation or a description of a thing is not the thing. There is nothing that can't be explained or described in English, either, but that does not make books patentable. You are confusing the use of math as a language used to describe and invention with the treatment of the math as an invention.
    • There was actually prior art for RSA, but the USPTO didn't see it because GCHQ (the UK equivalent of NSA) didn't like their researchers publishing in academic journals.
    • Many of us *don't* consider something like RSA to be patentable. It's an algoritm, basically just like using a**2 + b**2 = c**2 to calculate the proper length of a diagonal when building a house. Most people would scoff at the idea of patenting the pythagorean theorem, and making home builders everywhere pay a royalty to some random guy who patented it.

      For some reason, people are more willing to accept a patent on an encryption algoritm. But, it is basically the exact same thing. Some math, and a descri
  • santa (Score:5, Insightful)

    by Coneasfast (690509) on Monday January 16, 2006 @12:51PM (#14483211)
    just so you can see how retarded the US patent system is, see this santa hat patent [uspto.gov]

    it seems to me that the purpose of the USPTO is not to grant patents but to make money from applications etc

    i could probably patent my ass if i tried to
  • by ClippySay (930525) on Monday January 16, 2006 @12:51PM (#14483213) Journal
    / You look like you are trying to turn   \
    | the tide. Turning the tide is patented |
    | by Microsoft and is not implemented    |
    | yet. Shall I call the police? Feds?    |
    \ BSA?                                   /
            \     ____
             \   / __ \
              \  O|  |O|
                 ||  | |
                 ||  | |
                 ||    |
                  |___/
  • No (Score:5, Funny)

    by ObsessiveMathsFreak (773371) <obsessivemathsfreakNO@SPAMeircom.net> on Monday January 16, 2006 @12:53PM (#14483233) Homepage Journal
    "Is the Tide Turning?"

    No.

    This subversive will be dealt with quickly and harshly. Already the muck rakers are fervently searching for mud to fling at this commu-terrorist.

    We are the IP companies. Fire your lawyers and prepare to be sued. We shall add your intellectualy distictive property portfolio to our own. Justice is futile.

    This message brought to you in association with: "The USPTO. For a more prosperous, litigious future."
  • by Bogtha (906264) on Monday January 16, 2006 @12:53PM (#14483236)

    The EU Commission are trying to push through software patents again. There's a write-up on Groklaw [groklaw.net]. I think their idea is to keep trying again and again until we get sick and tired of protesting it.

    • I think their idea is to keep trying again and again until we get sick and tired of protesting it.

      That's exactly it. The IP companies only need to get lucky once, the rest of us have to be lucky time and time and time again. Eventually, they'll get through, and then we'll be stuck with software patents forever, as to atempt to dislodge them would be "theft" of IP rights.
      • Which is why we need to go on the offensive to put them in this exact situation where one win by us is all it takes but they must win every time.

        Any thoughts on the opening salvo?

        all the best,

        drew
        ---
        http://www.ourmedia.org/node/111123 [ourmedia.org]
        Tings - NaNoWriMo 2005 winning novel - first draft
        Creative Commons Attribution-ShareAlike license
        (think copyleft)
    • by Saib0t (204692) <saibotNO@SPAMhesperia-mud.org> on Monday January 16, 2006 @02:02PM (#14483977)
      As CTO of a company, I was thinking that I'd send them my position on the matter... It looks like they're making this consultation as difficult to contribute to as they can get away with...

      The thing is a PDF, you read it, write your answers separately and send them all to an email address.
      I just read the damn thing and it's basically HEAVILY BIASED towards companies... Seeing that, I'm not sure my answer would do anything, but I'll do it anyway... take for instance this introductory exert from from the PDF:

      The idea behind the patent system is that it should be used by businesses and research organisations to promote innovation.

      Strange, I was under the impression that patents were there to protect INVENTORS, not businesses.

      Pisses me off (pardon my french)

  • tides? (Score:3, Funny)

    by revery (456516) <charles@NosPam.cac2.net> on Monday January 16, 2006 @12:56PM (#14483263) Homepage
    has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?"

    Silly slashdot editor... the moon controls the tide.
    The sun don't do nothing.

    • Re:tides? (Score:3, Informative)

      by LadyLucky (546115)
      That's not entirely correct. Both the sun and the moon contribute to the tides. While the moon is primarily responsible, the sun has a secondary effect, which causes the spring and neap tides - where the peak to peak variation is maximized and minimized respectively.
    • the moon controls the tide. The sun don't do nothing.

      Just to be a pain in the butt, I'd like to put out that the sun actually does affect the tide. It is much less noticeable then the moon, because it is so far away, but it does have an impact on the tides (and a technically measurable one at that).
  • by Anonymous Coward on Monday January 16, 2006 @12:56PM (#14483272)
    I agree you should be able to patent a process. However the US system defines no logical limits on such a definition. The RIM Blackberry versus NTP is only one good example. NTP patended the process of sending communication to a device from a server, this is basically the concept of all TCP/IP traffic, however since NTP was successfull in making certain claims they OWN this process, and others must pay royalties to use it, regardless of how obivous it is.

    --------------
    www.kybe.com
    ^its an adult text and image search engine i'm working on.
    • I agree you should be able to patent a process.

      I don't.

      A process is not a tangible thing. It does not operate on specific components. no matter how specific you make it, a process is not a tangible, "hold in your hand" item. It doesn't do anything, not by itself at any rate. A process is an abstract concept, and patenting abstract concepts used to be disallowed.

      It would be bad enough if the process was well defined, but with half the process patents out there, what was originally meant to be applied to computer chip manufacture is so vauge taht it could just as easily be used to sue a kid selling lemonade to passers by.
  • by AeroIllini (726211) <aeroillini@@@gmail...com> on Monday January 16, 2006 @01:14PM (#14483447)
    "Is the tide turning?"

    Hardly. This judge is in the UK, and is clearly in violation of U.S. Patent #15648663245877954-5468, "Method for Citizens of Foreign Countries to Criticize the United States on Matters of Intellectual Property," filed by my company, Litigious Bastards, Inc., on November 3, 2002. He will be hearing from our lawyers shortly.
  • by Black Parrot (19622) * on Monday January 16, 2006 @01:15PM (#14483451)
    The tide is never going to turn in countries that let themselves be ruled by lobbyists.
  • by athomascr (851385) on Monday January 16, 2006 @01:18PM (#14483491)
    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."
    Immediately thereafter, the USPTO approved a patent on his questions.
  • by jglazer75 (645716) on Monday January 16, 2006 @01:29PM (#14483612)
    It doesn't seem to me that the patent process is inherently ill-suited to software. In fact, it's a far better fit than copyright because of the nature of the resultant work. The patent system requires full disclosure of the invetion (the copyright laws do not) and the term is definite (20 years v at least 70 years for copyright). With the copyright system (the only system left for protection if patents are withdrawn), there is no disclosure, so you end up with DRM to protect access to copyrighted elements even though not all the elements are copyrightable. However, circumventing the DRM to discover non-copyrightable elements is either a violation of the law or it is a violation of the EULA that you agreed to. If the software could only be patented, the applicant would be required to disclose the entirety of the invention and thereby promoting science. It would, by definition, only allow those elements that are protectable to be protected and the patent would clearly disclose what those are. Copyright laws only act to obfuscate the promotion of science.

    The problem with software patents is not that patenting is ill-suited but rather that discovery of prior art and laziness by the PTO have resulted in questionable patents being issued. Even this isn't a problem, because when challenged and scrutinized those patents that are bad are discarded and those that are good are upheld. The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

    Instead, maybe the PTO should adopt a cheap ex-parte reconsideration procedure (to my knowledge only the applicant can request reconsideration for a patent that is denied) that lasts for the lifetime of a patent where the challenger only needs to present some evidence of a patent-destroying issue. This would eliminate the huge costs of trying the patent in a court of law and make the process a little more fair. If there is evidence of non-obviousness or prior use for a "progress bar" the patent will destroyed, otherwise, why shouldn't the patentee be rewarded for his new and novel invention (it should be to his benefit that such an invention is widely used!)
    • Mathematical algorithms cannot be patented.

      All software programs are mathematical algorithims.

      Ergo, software programs cannot be patented.

      Disclaimer: The above relies on the issuing patent body being in some way competant. Does not apply to USPTO.
      • That's like saying you can't patent the implementation of a microchip because all it is is mathematical formulas.

        Software adapts mathematics (be it simple boolean operations or complex searching and sorting algorithms) to a specific form and function. If an adaptation was sufficiently unique, non-obvious and usefull, then it might be reasonable to patent it.

        Now, I don't support software patents, mostly becuase of the inept patent system we have.
        • That's like saying you can't patent the implementation of a microchip because all it is is mathematical formulas.

          A microchip is a physical assembly of circuits, transistors and silicon. It performs a physical function. Like everything else its operation is based on physical and mathematical laws. But it is not a mathematical algorithim.

          Software adapts mathematics (be it simple boolean operations or complex searching and sorting algorithms) to a specific form and function. If an adaptation was sufficiently
    • The problem with software patents is not that patenting is ill-suited but rather that discovery of prior art and laziness by the PTO have resulted in questionable patents being issued. Even this isn't a problem, because when challenged and scrutinized those patents that are bad are discarded and those that are good are upheld. The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

      The problem is that most sol
    • by Jerry Coffin (824726) on Monday January 16, 2006 @02:11PM (#14484076)
      The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

      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.

      • The bad publicity associated with suing "little guys" tends to prevent big companies from suing.

        For each instance where this is true, there are an equal number of instances where the "little guy" is strong-armed by the big guys. In any event, the point of the original post remains true - the cost of litigating patent validity between parties is high; it makes more sense to offload those costs to the PTO which has the internal mechanisms in place to make review more efficient.

        If the costs to litigate

      • he did stay a little guy in terms of (complete lack of) integrity though.

        By this argument, is there anything BUT little guys?

  • by Anonymous Coward on Monday January 16, 2006 @02:11PM (#14484082)
    Patents are not the problem. It is ill-equipped patent reviewers and weak reviewing guidelines that are.

    Innovative work expressed in software (a virtual machine) should have the same protection as any innovative work expressed in mechanical form (a physical machine). It is the non-obvious innovative work part that the patent office seems to not understand when it comes to software as well as they do when it comes to physical machines.

    IMHO, what is needed are stricter rules, guidelines and use of software experts to review software patents.
    • Innovative work expressed in software (a virtual machine) should have the same protection as any innovative work expressed in mechanical form (a physical machine). It is the non-obvious innovative work part that the patent office seems to not understand when it comes to software as well as they do when it comes to physical machines.

      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
  • No, the tide is not turning, as the Microsoft FAT patent nonsense has demonstrated. There is much outcry on both sides of the pond about software patents. There are frivolous lawsuits in the US, protests in Europe. And now an EU judge has said that patents shouldn't apply to software. So what? This policy, at least in the US, is not determined by public sentiment, nor by obvious negative experiences with patenting software. It's determined by the Congress, and they are in the pockets of media, technol
  • by CrystalFalcon (233559) on Monday January 16, 2006 @03:25PM (#14484825) Homepage
    Yes, the tide is definitely turning. [piratpartiet.se]

    A year ago, this would have been considered ludicruous and impossible. Now it's for real.
    • It is still ludicruous. Sweden is bound by international treaties and probably EU law, things which you cannot just rip apart without dire repercussions.
      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 p
  • Who needs patents? (Score:2, Interesting)

    by mackaykl (916783)
    UK Judge: Who needs software patents?
    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?
  • by Absolut187 (816431) on Monday January 16, 2006 @04:55PM (#14485640) Homepage
    "Anything Under The Sun That Is Made By Man"
    This phrase is from the Senate Committee Reports accompanying the 1952 Patent Act. Congress intended the statutory subject matter to "include anything under the sun that is made by man." S.Rep.No.1979, 82d Cong., 2d Sess., 5 (1952)

    However, there are limits to patentable subject matter. For example, laws of nature and abstract ideas are not patentable. Drawing the line between patentable software and "abstract ideas" is up to courts.

    Just because the USPTO issues a patent doesn't mean it will be enforced in court. An issued patent creates a presumption of validity, but this is a rebuttable presumption, and patents are struck down.

Life would be so much easier if we could just look at the source code. -- Dave Olson

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