Patent Law Ruling Threatens FOSS 244
savio13 writes "The EFF has asked the US Supreme Court to overturn a patent law ruling that could pose a serious threat to Free and Open Source Software projects. A recent Federal Circuit Court of Appeals decision required that even the most obvious incremental advances can be patented unless it can be proved that someone else suggested it prior to the patent being filed. As such, many 'bad patents' are being used as roadblocks for legitimate innovators, especially those working for FOSS projects (who have better things to do then search through thousands of technical papers for some mention of the obvious). The full brief is available online in PDF format."
Re:But... it's free. (Score:4, Informative)
Re:Better Idea... (Score:4, Informative)
Let's think about this for a minute. There are two common arguments for doing away with software patents: 1) It's just math (i.e., algorithms), and 2) software is already covered by copyright.
Addressing 1) first, this argument could be taken to its natural conclusion by suggesting that *nothing* should be patented, since *everything* is simply a combination of laws of nature. But if we take a step back, we realize that what people are patenting is novel *uses* for laws of nature. If I'm the first person to design voice recognition software, why would that be any less patentable than a new kind of rubber? The point (theoretically, at least) is to reward hard work and innovation. Why should software engineers be any less entitled to that kind of reward?
Some will respond to the previous points with 2). BUT, and this is an important point, copyright only covers the specific implementation or manifestation of the invention. So, if I were to copyright an insanely powerful peer-to-peer model, you would only have to use a different programming language, change the system architecture a little bit, throw a different GUI on it, and away you go. You may be copying my ideas EXACTLY, but you've found a way around the copyright. So it's clear that copyright doesn't protect certain kinds of inventions to the extent that patents do.
Now, I'll be the first to acknowledge that the USPTO needs improvement. The examination process is flawed, and recent reform proposals have fallen far short of what's actually needed. But does that mean we should just do away with an entire class of patents? Of course not.
Moral of the story made simple: donate. (Score:3, Informative)
For an in-depth look at how this policy came about (Score:2, Informative)
Uhh, wrong. (Score:2, Informative)
If I have a patent on a braking system for cars and someone goes out and makes something nearly identical for use on trucks this is clearly patent infringement. At least I should because any smart patent lawyer will make sure "cars" never appears in the claims for the patent and it remains general. As general as possible while still preserving the concept.
Yes, my name is listed as "inventor" on a bunch of pretty silly patents.
Re:Better Idea... (Score:2, Informative)
Re:Better Idea... (Score:1, Informative)
If your new kind of rubber includes my rubber, I can compell you to pay licensing fees. Same for the voice recognition software. There is absolutely no difference.
Yes, some software patents are very broad -- but then, so were some of the early mechanical patents. This is more a factor of the age of the market, not an inherent flaw in software patents.
Re:Better Idea... (Score:1, Informative)
Absolutely false. As an exercise, try to find a patent where a subroutine is claimed. Good luck.
Most software algorithms [and in many cases hardware] are just evolutions of previous algorithms. Take LZW. Take any one of the millions held collectively by Apple, IBM, Microsoft and the like. Patents which are truly original and non-obvious are the exception not the rule. And given that OSS developers don't have the money to invest in patents it's just a way to lock them out.
Everything is an evolution of something previous. It's how the world works. Also, nearly everything seems obvious -- once you hear about it. That's why the USPTO explicity prohibits examiners from applying hindsight reconstruction.
As for OSS, if an OSS project puts out a novel idea, that idea instantly becomes prior art and nobody can patent it. There is no way for them to be "locked out" of that field. But if somebody else thought of it first, why should OSS be allowed to get a free ride?
Re:Better Idea... (Score:3, Informative)
Re:Grandparent was correct (Score:1, Informative)
Only as specific as the claims. This is a fundamental aspect of patents that many people don't seem to grasp.
Check out the variety of automatic transmission designs, each under it's own patent. Yet clearly they do the same "obvious" task of shifting.
Yes, but there are ways to claim a novel transmission design that covers many different implementations. It's all about the NOVEL aspect, not the surrounding (and arguably inconsequential) implementation details.
Re:Better Idea... (Score:2, Informative)
The purpose of patents is to encourage innovation, and it fails to do this in the case of software patents. Ergo, they should be abolished for software.
That's it. No other point needs to be made. The reason they fail to encourage innovation is because the "small guy" who invents a brilliant idea will be incapable of creating a piece of software that both incorporates his brilliant idea and also does not infringe on 100's of other patents held by large corporations. Hence, the small guy would have to cross-licence and thus his monopoly over his idea is effectively nullified.
All the other arguments against software patents are the objectionable features of them. e.g.
- They are largely for obvious inventions.
- Software is covered by copyright and trademark law and implementations are secret so it's not easy to copy software ideas, it could take several years to re-implement a patented idea in another way. i.e. software patents are largely unnecessary.
- Lots of computer inventions become obsolete far sooner than the patent period, so the period could be shorter without affecting a business' ability to profit from it.
- It's too difficult to parse the current patents that might affect a software package that you intend to implement, and thus innovation for small businesses and individuals is effectively curtailed.
SEOT.