Paul Graham on Patents

volts writes "The always interesting Paul Graham has a new essay, 'Are Software Patents Evil?'. "A few weeks ago I found to my surprise that I'd been granted four patents. This was all the more surprising because I'd only applied for three...""

Patents are not what they are supposed to be.

[IntelliAdmin]

Its funny. The founding fathers of the USA wanted to have a patent system to protect the little guy. The little inventor that creates a new and novel item. That way a big bad company cannot steal it from him, and he never makes a dime. Now it seems that it is just used by slimy lawyers to use patents as part of an extortion scheme to shake down big companies. Alternatively a way for big companies to keep anyone from ever entering their territory. The sad part is I think it will only get worse - not better.

Re:Patents are not what they are supposed to be.

[rainman_bc]

Admittedly, these lawyers frequently obtain these patents from the little guy.

Sometimes it's just easier to sell your patent than it is to litigate.

It wasn't such a good idea

[babbling]

I get the impression that the "founding fathers of the USA" were pretty good blokes with the best of intentions. Certainly very different from the politicians in power in the US today.

I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company. This was probably a difficult thing to imagine when patents were invented, since really big companies wouldn't have existed back then, and the legal system was probably also quite different. There was probably no such thing as "expensive lawyers".

Re:It wasn't such a good idea

[SlamMan]

<a href="http://en.wikipedia.org/wiki/British_East_In dia_Company">British East India Company</a>

Re:It wasn't such a good idea

[Bogtha]

I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company.

So what you are saying is that the combination of these two things is bad:

• Patents
• Large companies being able to wield an inordinate amount of legal power over individuals

I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.

Re:It wasn't such a good idea

[babbling]

I think it's a case of two mistakes being used together by unscrupulous people in such a way that it appears to be one big mistake. You're right that it is certainly a major problem that large companies can wield so much legal power that no individual has a chance of winning against them, but the patent system clearly has its own problems. Algorithms shouldn't be patentable, and as the article points out, patents actually can't mention the word "algorithm". Algorithm patents just try to make the patent soun

Slight wrong here.

[WindBourne]

Incorporations were not allowed. It was all about personal companies. Each company had a local reputation that could make or break it. So few companies really grew big. And the individuals were held responsible. Now, we have Incs, which is granted nearly all the rights as a citizen and the management is not held personally responsible for anything except the very worse infractions. Even then few get major punishments. Basically, it is our creating Incs and removing personal liability that is creating the mo

Re:Patents are not what they are supposed to be.

[Waffle Iron]

The founding fathers of the USA wanted to have a patent system to protect the little guy.

I don't think that they had "protecting" anybody in mind. What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died. Perhaps unfortunately, the chosen means to this end was by granting time-limited monopolies.

The problem is that the enticement part has become the all-consuming focus of the patent process, rather than the disclosure of useful trade secrets part. Now a lot of people think that patents are a form of property right a sacred as the rights to their favorite pillow, and the patents themselves most often have obfuscated claims that reveal little if anything that isn't obvious from a quick look at the protected products themselves. They extrapolate from the "protection" side effect of the way patents were implemented and mistakenly assume that that was the primary goal all along.

The inventor now gets far more than the original intended benefits (because he can now often shake down a large company for the profits to all of their business), without having to give up much of anything in return. Much like agricultural market subsidies, patents have become little more than a wasteful government entitlement program.

Re:Patents are not what they are supposed to be.

[TheZax]

What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died.

I really don't know what I'm talking about, but this is Slashdot, so i won't let that stop me ;)

But I think the idea was not so much to get their ideas when they died, but at the time people were inventing machinery that could be reverse engineered very easily. Patents were issued so that a competitor couldn't simply by a widget, take it apart,

Re:Patents are not what they are supposed to be.

[nadamsieee]

I really don't know what I'm talking about, but this is Slashdot, so i won't let that stop me ;)

At least you're honest. The original intent of patents was to advance science [findlaw.com]. Protecting the inventor (via a time-limited monopoly) was only the means to that end, not the end itself. From FindLaw (speaking of both copyright and patent law):

"Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts."

Re:Patents are not what they are supposed to be.

[nadamsieee]

From the US Constitution [house.gov], Article I, Section 8, Clause 8:

Clause 1: The Congress shall have Power...
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Fallacy

[Bruce Perens]

Paul Graham thinks that you won't be sued until you have money. But that's backwards. Suing people who have the money to defend themselves is much more risky than suing the little guy. That's why so many suits are against companies that don't have any choice but to settle, because they can't afford to continue the suit to a verdict. The worst software patent lawsuits are not brought to make money at all, but to restrain another party from doing business. A suit against Open Source developers would not seek to collect money, it would simply seek to shut them down.

And he thinks that Microsoft would be deterred by a boycott?

Bruce

Re:Fallacy

[Jobe_br]

Entirely. Furthermore, the argument of patents wrt innovation seems to ignore an important point. Without patents in software, a new feature (such as one-click) would be replicated, improved, or would spur new ideas, without fear of any recourse. Same would go for any other thing - I cannot think of anyone that would see one-click and think "hmmm, now HOW did they do that?!" - a detail that the patent would reveal. Software patents are being used to protect conceptual ideas (very tenuous ones, at that) that have no secret (hence trade secrets being useless). Nobody cares exactly how Amazon implemented one-click (unless I am mistaken, please correct me if you do). That's the difference I see with mechanical patents. Perhaps, if someone came up with a mechanism to cut diamonds that yielded less waste, then to replicate this, you couldn't avoid implementing the same mechanism. That is, unless you came up with something entirely different, that had the same effect (high quality cut, low waste). And as far as I understand patent law (IANAL), that would be O.K. Different mechanism, same end-effect, no problem. Not so for software. Different implementation, same end-effect (one-click ordering), and you're bound by the patent.

That's a problem and I think Paul overlooks this.

That said, Paul's post on this is an excellent essay on the topic from a number of different angles.

Re:Fallacy

[dwandy]

Without patents in software, a new feature (such as one-click) would be replicated, improved, or would spur new ideas, without fear of any recourse.

I believe this to be 100% correct. And I think it's not limited to software. Innovation is like a living organism: The shorter the generational gaps, the faster it mutates and evolves. Putting a 20yr hold on generations will only slow, not speed innovation.

Re:Fallacy

[Jobe_br]

Innovation is like a living organism: The shorter the generational gaps, the faster it mutates and evolves. Putting a 20yr hold on generations will only slow, not speed innovation.

Right, and (please correct me if I'm wrong), but the only way I see patents spurring innovation is if (a) developers were in the habit of following patent filings & reading through patent listings to develop new ideas and (b) they then used the knowledge and methods from the patents to develop something new (the innovation)

Re:Fallacy

[rufty_tufty]

"Boycotting Microsoft makes about as much sense as... I can't think of a witty comparison."

I agree the users can't boycott Microsoft, but I think the point that Engineers would start to leave is valid. The people I know who work for MS don't believe it is an evil company, a company with problems yes, but all large companies have that. If they did believe it had gone too far I don't believe they would stop any longer than the time it took to find a new job.

Re:Fallacy

[Phleg]

Potentially, also, the patent would be kept secret until approved. This would have the nice side effect of, if a competitor starts producing a similar widget in the time between when you applied for the patent and received it, it should be tossed on the grounds of being obvious--since the competitor clearly came up with the idea on their own.

Re:Proposed solution

[BVis]

I can tell that your heart is in the right place, but the system that you suggest is ripe for abuse IMHO. I do like the idea of a peer-reviewed journal evaluating the worthiness of an idea or invention as part of the patent process. The implementation, however, would most likely be problematic.

Currently IMHO, the function of scientific journals is to test the results of research as repeatable and/or valid. There doesn't seem to be a (direct) financial motive to review an article favorably. (Yes, being p

Yes

[pieterh]

They are.

It does not take a long essay to answer this.

And BTW, Paul Graham is wrong when he says, "if you are against software patents, you are against all patents".

All patents have the potential for evil. But software patents are guaranteed to do evil.

Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.

Yes, software patents are evil because in the name of promoting innovation in a field, they actively destroy it.

Re:Yes

[moro_666]

i'd prefer to say that they are evil in their current form as they are implemented in the u.s. patent system.

  if software patents would apply only to commercial software (e.g. gnu staff could always use patented stuff as long as they give away the product for free, and microsoft would have to pay nice $$$ for the same thing), the patents would be better.

  but i think there's a higher chance of bush turning into a human being than this happening.

Re:Yes

[pieterh]

The patent covers the use of an idea.

The software itself, is simply an expression. The user of the patented idea is the person using the software. Today, most litigation is aimed at product producers because these have the money. But if one was to exclude (e.g.) FOSS from patent claims, then the patent ambush would simply shift onto large-scale software users.

It is difficult to see how the fact that one is using FOSS as compared to commercial software, to do the infringing, would change anything. If you

Re:Yes

[moro_666]

i was referring to the using of the idea.

free/opensource software developers shouldn't be affected by patents at all, companys that make profit should pay eachother for them. simple and clean without any hooks.

sure having no patents at all would be a nice bliss, but if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ? if gnu people would use the idea to make some free stuff, i wouldn't mind. if mi

Re:Yes

[Vlad2.0]

A lot of people *would* mind if GNU decided to use their ideas to make free stuff. While it might not be me or you, it is their idea and their right to protect it. We should respect that.

I'm definitely *not* saying that all ideas should be patentable. Just that those that are should be respected.

Re:Yes

[Halo1]

free/opensource software developers shouldn't be affected by patents at all, companys that make profit should pay eachother for them. simple and clean without any hooks.

There are plenty of companies which develop FLOSS, individual FLOSS developers that make money developing FLOSS, and end users avoiding spending money on software by using FLOSS.

sure having no patents at all would be a nice bliss, but if you invent something that nobody in the universe would have figured out in the next 25 years

Re:Yes

[dmatos]

And if you've invented it, and are making your living off of selling it, how would you then feel if gnu people started offering it for free?

Re:Yes

[AlterTick]

if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ?

The patent system is intended "to promote the progress of science and the useful arts". "Credit" for inventing somethinghas nothing to do with it. The problem with software patents is that they end up staking claim to large swathes of knowledge, essentially bogging people down in trying to work around them rather than building upon past work. Software patents a

Re:Yes

[rolfwind]

I agree with you. I usually like Paul Graham, but he is way off on this.

It sounds like he wants to prentend that patents won't play a big role and be "secondary" and without them, we're all screwed in the "alternative" he mentions.

But if patents are so great, and the alternative so bad, explain the advancement in first years of the computer industry up to the 90s.

It's also ironic that he puts says either you are for patents or you are against patents, if you are against software patents - because software

Re:Yes

[sakshale]

If we eliminate software patents, we are left with software copyrights and software trade secrets, which suffice to explain, as you said, the advancement in first years of the computer industry up to the 90s.

Nicely stated. To prevent the problem of trade secrets becoming a block to innovation, Congress developed the patent system. To prevent the problem of someone simply copying your stuff and putting their name on it, Congress developed the copyright system. It wasn't until patents were applied to stu

Re:Yes

[truthsearch]

Here's the basis of where he's wrong:

There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

Physical resources are a limited quantity. There's a strict limit to how many of these physical control systems can be produced. If I have a physical resource that means someone else doesn't. So if I manufacture my invention it limits others' ability to do so.

Software is an unlimited resource. We can copy it without taking the origin

Re:Yes

[honkycat]

That argument works for copyright but not for patents. It doesn't cost an inventor anything in terms of materials if a competitor produces its own copies of his invention. Except in very rare cases where production is limited by the amount of resources available, both A and B can produce as many widgets as time permits.

The problem that patents purport to solve is when A invests his resources inventing a new widget, then B reverse-engineers it and sells it. A needs to charge a preimium to recoup his inven

Re:Wow, how wrong

[langelgjm]

It's the difference between patenting knowledge, and the application of knowledge. Software is not the application of knowledge, but knowledge itself.

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things,

Re:Wow, how wrong

[Halo1]

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

It's a description of knowledge. Whether you write down a description of an algorithm in English or in C, on a floppy or

Knowledge vs application

[archeopterix]

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

Ok. So (a*a)-(b*b)=(a+b)*(a-b). Knowledge or application?

Calculating (a+b)*(a-b) is better (in terms of rounding errors with fixed point arithmetic) than (a*a)-(b*b). Knowledge or application?

Suppose I was the first to notice this fact. Should I be granted a patent on calculating differences of squares this way? I have a gut feeling that this would be patenting math. And I don't see much difference between this and any other patent on algorithms. Maybe there are software patents that aren't patents on algorithms (for example GUI stuff), but again, the distinction is blurry.

Ok, this is still on the "gut feeling" level, but I think that with the software patents banning them is just simply the lesser evil than allowing them. I think that there is rather a continuum than a sharp distinction between "knowledge" and "application", and that software is close enough to "knowledge" to make it unpatentable.

To stretch it a bit: if you are for software patents, you are for patenting math.

Re:Wow, how wrong

[WindBourne]

Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant.

By your reasoning, then books can be patented. Words create electrical impulses inside of us. That is , they do work. Of course, it is more of a passive, rather than an active system. So are you suggesting that books, and therefore art, movies, etc. be patented?

Re:Yes

[dwandy]

Microsoft doesn't fit the Unisys model,

From TFA:

When you read of big companies filing patent suits against smaller ones, it's usually a big company on the way down, grasping at straws. For example, Unisys's attempts to enforce their patent on LZW compression. When you see a big company threatening patent suits, sell. When a company starts fighting over IP, it's a sign they've lost the real battle, for users.

Really? I think it fits perfectly. They haven't started suing yet because they are only on the b

bzzzzzzzzt - wrong!

[Spy der Mann]

One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general.

Wrong. Hardware patents are necessary to commercialize new products and keep innovation. Some medicine patents are also necessary, but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

But patents for software or business methods are an aberration.

Re:bzzzzzzzzt - wrong!

[MindStalker]

Your argument of course is missing any facts that would lead someone to conclude you are write and he is wrong. Paul Graham has an interesting idea, but realistically he is missing two big points. In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world. In the computer world copyright and keeping your source secure, is effectiv

Re:bzzzzzzzzt - wrong!

[matvei]

In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world. In the computer world copyright and keeping your source secure, is effectivly your assurance that someone won't simply rip off your idea.

There is another way in which software inventions are essentially different from physical inventions. In the physical world having

Re:bzzzzzzzzt - wrong!

[shaitand]

Personally I am against both software and physical patents at this point. Patents were never about inventors rights. Patents were supposed to be a way to get inventors to reveal how their machines functioned so that society could benefit from them after the patent expired. It's not like someone is entitled to exclusive rights simply because they develop the next step in technological progression first.

To that end, there is no evidence of patents increasing innovation at all. In fact, there is plenty of evid

Re:bzzzzzzzzt - wrong!

[honkycat]

In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world.

I disagree. It's actually straightforward (but tedious) to reverse engineer software by looking at the binary. Compared to a complex machine or a device consisting of integrated circuits, it may even be easier. Copyright on the software may provide some protection, but

Re:bzzzzzzzzt - wrong!

[Buddy_DoQ]

You've just gotten home from the doctors office. You've got 6 months, at best. Someone finds a cure three days later. They file for a patent and refuse to give it up for less than x$ where x = extreme. 12-16 months later they sign a deal with a major medical company who then sells it for x$ where x = extreme and they refuse to lease the cure to competitors and sue the pants off anyone who uses an unlicensed cure. Tell me that is not evil? I dare you. Cures for major causes of death should be issued in bulk

Re:bzzzzzzzzt - wrong!

[ergo98]

Cures for major causes of death should be issued in bulk by your government for free (Tax Dollars) not protected by patents.

You're basically calling for the socialization of medicine, which historically has been a really, really, really terrible model. You know -- where those cures never actually appear, and instead of complaining about those evil drug companies, you enjoy your 35 year lifespan and die away.

Imagining cures popping out of nowhere and doing away with major illnesses is pretty romantic, but in

Re:bzzzzzzzzt - wrong!

[TubeSteak]

but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

I was just reading in the new BusinessWeek that Pharma companies are gathering up for a big lobbying push to change the way their drugs recieve patent protection.

They aren't happy with the current 20-years-from-date-of-application, instead they want 15 years from date of approval.

Additionally, they want 15 years (instead of 5) of protection for their clinical research

Re:bzzzzzzzzt - wrong!

[AlterTick]

Additionally, they want 15 years (instead of 5) of protection for their clinical research data, which will effectively choke off generics until after the 15 years would be up. Clinical research is expensive, but generic meds get around this by using the original research as part of their application to the FDA.

That idea is utterly absurd. The entire purpose of the patent system is to encourage the spread of knowledge and prevent the wasteful duplication of effort caused by protective secrecy. The exclusiv

Re:bzzzzzzzzt - wrong!

[Halo1]

All the arguments for hardware patents can be made for software patents. All the arguments against hardware patents can be made against software patents.
To object to one but not the other is inconsistent

Yes, it's really annoying, this inconsistent Federal Trade Commission, saying that patents do not have the same effects in all industries [ffii.org.uk]. In a sense, you're somewhat right, because they note that patents have little effects as driver of innovation in the semiconductor industry too.

Or maybe the National Research Council [nap.edu], claiming that the software industry is quite different from traditional industry sectors for various reasons.

Or maybe the Max Planck and Fraunhofer Institutes [isi.fhg.de]? (the latter even own some patents on mp3 compression)

Re:bzzzzzzzzt - wrong!

[Halo1]

At least they argument why they think there are differences, while you don't provide any argument at all. The point is that you should read their arguments.

He's Recognized Us!

[eldavojohn]

The most common is to grant patents that shouldn't be granted. To be patentable, an invention has to be more than new. It also has to be non-obvious. And this, especially, is where the USPTO has been dropping the ball. Slashdot has an icon that expresses the problem vividly: a knife and fork with the words "patent pending" superimposed.

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.

We "take it for granted?" What's that supposed to mean? That there's some novelty in finding bogus patents? I don't think so ...

On the contrary, it's shocking and down right insulting that some of these patents have been granted. I think Mr. Graham hit the nail right on the head when he said the USPTO is dropping the ball on granting obvious ideas patents. As I've pointed out before [slashdot.org], they've patented the progress bar [espacenet.com] and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.

You know, time and time again there are stories about the horrors of patents. But what are we actually doing about it. Are there patent protests? Are we screaming foul play in the NTP Vs RIM court case? No, we aren't. We're just sitting back and watching patents get out of hand. I know I can, as well as Paul Graham, point out the problems with patents but what solutions are there to explore?

Re:He's Recognized Us!

[bzipitidoo]

but what solutions are there to explore?

I'm sooo glad someone asked that question! ;) A common criticism of criticism is you shouldn't unless you have a better idea. I've been trying to come up with better ideas.

I think I've worked out a way to "promote the progress of science and useful arts" withOUT copyright and patent law. I've even run it up the flagpole here a couple of times, but no one's saluted. If you're interested in hearing more, let me know. I don't think it's an especially novel or ra

Good but idealistic article

[robotsrule]

I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:

"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."

This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees. There are other companies/people who do nothing but try to think of patentable ideas to lay claim to, and never intend to build a product; only to extort license fees from others.

There are other examples of what the author would like to believe that gloss over the terrible realities of software patents; despite the many good points he does make.

Re:Good but idealistic article

[magetoo]

I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:

"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."

This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees.

Yes, and he mentions them a page further down. You did read the article before posting, didn't you? Of course you did.

Re:Good but idealistic article

[alexhs]

I agree.

Another piece of idealism in TFA :

The third reason patents don't seem to matter very much in software is public opinion-- or rather, hacker opinion. In a recent interview, Steve Ballmer coyly left open the possibility of attacking Linux on patent grounds. But I doubt Microsoft would ever be so stupid. They'd face the mother of all boycotts. And not just from the technical community in general; a lot of their own people would rebel.

Good hackers care a lot about matters of principle, and they are high

new offer... hurry !

[phreakv6]

I'd been granted four patents. This was all the more surprising because I'd only applied for three...""

Oooooh ! dint u know ? they have an offer on those lil fellas now.
buy three
get one free
hurry.. offer open till stocks(no pun intended) last !

Stupid, Stupid, Stupid

[gowen]

If software were really no different from physical systems, 99% of software patents would be invalid because they consist solely of obvious (indeed, pre-existing) inventions with the words "using a computer".

How is the one-click patent not invalidated by the prior art of millions of human shopping experiences in which a customer says "One of those please", or a vending machine in which every item has its own button? Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.

And if a one-push vending machine would not be patentable, why is a one-push webpage?

I disagree

[grahamsz]

If a vending machine identified you, and automatically debited the card it kept on file when you pressed the "Diet Pepsi" button then it certainly would be patentable.

However the non-trivial idea would be a vending machine that identified the user, something that's a very common feature on websites.

Of course it is

[grahamsz]

And it's patent pending....

http://tinyurl.com/rl2jn [tinyurl.com]

Re:I disagree

[grahamsz]

I'm pretty sure you could get a patent on a vending machine that read Ez-Pass or RFID credit cards.

I feel, like you, that these are obvious applications of technology however the patent office seems to disagree. My point was really that this does happen in both the real world and the software world. It's just that given the rate of progess in computer software it's easier to file massive numbers of obvious patents.

Re:Where do you draw the line

[grahamsz]

For certain industries you probably do need a patent to recoup your development costs. The drug industry certainly springs to mind.

I feel there may need to be a variation in patent length based on industry. 25 years is a lifetime in the high tech industry, but if patents were valid for say 4 years and only granted to non-obvious ideas then they could help the industry. As it happens right now, many technologies are obsolete before their patents are granted.

Re:Stupid, Stupid, Stupid

[TubeSteak]

Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.

I wonder if I could get a patent on a vending machine that makes you use two, three or four button pushes to get your candy bar?

I call dibs! By the time I'm through, 'two' will be the new 'one' when it comes to pushing buttons.

Re:Stupid, Stupid, Stupid

[blueskies]

I've seen a snickers at E-3, but never at E-4....

Software - Patents & Copyright

[erbmjw]

A very simple discussion point

Copryright is more applicable to software than Patents.

Feel free to discuss it, but I do not beleive that any person or group, has yet or will disprove the above statement.

I'm willing to engage in this discussion, furthermore I'm also willing to keep an open mind.

Software - Patents or Copyright

[jbeaupre]

I've often thought it was more a question of patent OR copyright. Is a particular piece of software "science" or "art?" I'm sure someone could claim the two are not mutually exclusive, but I have this gut feeling they are. So, how about folks pick which protection applies. You want broad, but relatively short protection, or long and narrow.? One or the other but not both.

No idea patents!

[Anonymous Coward]

[..] a great many patents on mechanical objects were really patents on the algorithms they embodied.

So there are also bogus patents on mechanics, not much of a surprise there. Paul however neglects to mention that, just like the fact that the destinction isn't an artificial one--patents should be granted for overcomming engineering problems. Patents shouldn't be granted to the guy who first thinks of a space elevator, but to the guy who can build one. It just so happens that with software this distinction

More interesting than Paul Graham

[gowen]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

Anyway, I heartily recommend you read this fine demolition [idlewords.com] of Graham's opinions on painting [paulgraham.com] before giving this dilletante blowhard any of your copious free time.

Re:More interesting than Paul Graham

[Bogtha]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film...

Does Graham actually claim to be an authority? It seems to me that he doesn't claim to be an authority, but fanboys tend to treat him as such. That isn't really his fault. What's he supposed to do, take a vow of silence just because some kids have latched onto him?

Re:More interesting than Paul Graham

[shaitand]

hmm... a software developer posting his opinions on software patents. Doesn't seem like too much of a stretch to me. Or do you really suggest that matters of innovation be left in the hands of lawyers rather than developers and engineers?

Patents-

[dteichman2]

"Are patents evil?"

EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."

Re:Generalization

[Halo1]

And by changing "foo" to "bombing innocent people for no reason", it's immediately clear that it's a BS argument if not substantiated.

Re:Generalization

[shaitand]

Both innocent, and no need to be removed from your statement. You have already prequalified it and that takes away the moderates grounds for "depends".

"Is bombing people evil?"

Extremist A: Yes
Extremist B: No
Moderate: Depends (on whether the people are innocent and there is a good reason)

However, the moderate view is still not always the correct one. Simply because one's view is decidedly on one side of the issue or the other does not mean one is incorrect.

favicon

[gEvil (beta)]

They were assigned to Viaweb, and became Yahoo's when they bought us.

Well, that certainly explains the Yahoo! favicon for his page... : p

Comment removed

[account_deleted]

Comment removed based on user account deletion

He's confused

[iplayfast]

First he says...
Unfortunately, patent law is inconsistent on this point. Patent law in most countries says that algorithms aren't patentable. This rule is left over from a time when "algorithm" meant something like the Sieve of Eratosthenes.

and then he says...

In 1800, people could not see as readily as we can that a great many patents on mechanical objects were really patents on the algorithms they embodied.

and using this argument he says that if you don't like software patents you don't like patents in general.

I think there is a big difference between the method of a process, and the mechanical objects that implement them. I have no problem with people patenting mechanical objects (that are non-obvious). I do have a problem with people patenting methods that would work with those objects. If he thinks that algorithms implemented in mechanical objects is the same thing as algorithms, he isn't much of a lawyer.

Mod article troll!

[Spy der Mann]

In a recent interview, Steve Ballmer coyly left open the possibility of attacking Linux on patent grounds. But I doubt Microsoft would ever be so stupid. They'd face the mother of all boycotts. And not just from the technical community in general; a lot of their own people would rebel.


Yes, but if they win, they'd kill Linux. And how can you boycott the only LEGAL operating system in the market? That'd be as ridiculous as boycotting gas stations for one day.

Frankly, I feel insulted that he refers this matter

Errata

[Spy der Mann]

in the last 2 paragraphs of my reply, i said "patents", i should have said "software patents".

(There ya go - for the record, yadda yadda)

Only legal OS?

[Nursie]

I suppose there is a danger of that, but MS would have to take out Apple first...

And don't forget Unixware!

[Nursie]

Dmmit, I nearly choked as I said that. SCO are already trying to kill open source though...

Re:Mod article troll!

[qwijibo]

Microsoft can't kill Linux. They might be able to prevent companies like RedHat from selling Linux. However, those companies have it in their best interests to fight that with everything they have. Even if Linux could not be sold anymore, it's not going to get it removed from every server or desktop running it.

The Linux community doesn't exist to ensure the financial success of each member. Companies exist to make money. Most Linux fan(atic)s spend money on their Linux habit. Free OS's exist because e

Re:Mod article troll!

[Spy der Mann]

Umm, they were. They were vindictive rebels and torturers.

Yes, but my point was that most of the time the Law supports the powerful, then the people who fight them become criminals ipso-facto. This applies to the European (British, Spanish, French, etc.) colonies equally, where the insurgents were labelled as "traitors" and executed if they lost the war.

/. riff

[Rob T Firefly]

Slashdot has an icon that expresses the problem vividly: a knife and fork with the words "patent pending" superimposed.

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.

No, that's how the whole "news" thing works. If we were to have a posting every time a benign patent got assigned, our scroll wheels would wear away.

And speaking of things wearing

Paul Graham

[thrillseeker]

makes the statement in his article: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general."

He couldn't be more wrong.

Software is instructions to hardware. Instructions should not be patentable. Hardware should be patentable - though there may not be a business case to make it worthwhile.

The otehr day I had to give directions to a picnic to a group of soccer players. There's really only one reasonable way to get from where they were to where they'd be going. What if someone had patented the description of how to get from Point A to Point B, that is how to get some hardware from one state to another? Does anyone think it logical that I would have to pay a royalty for telling this bunch of 13-yr olds (well, their parents) directions to get to their picnic? No? Then why are a set of directions to a collection of hardware patentable?

The directions could have included a toll road - or an alternative existed to take a more crowded road instead. Here is a pay-for-the-patented-hardware concept that makes sense. Using the toll road costs money but saves time. Using the public road is cheaper in money, but costs traffic congestion. But either way, the directions to use either road are free for any to use. And for what it's worth - the public road has many services along it that make money. The toll road, built privately by private financing, saves a few minutes. Of course, in this case, the private financiers have taken a bath. They envisioned charging a bunch for the access rights to their frontage property to service providers - but few people use their overpriced path. A better business case could be made that the toll road owners should remove the tolls and collect a royalty from the service providers that would then invest in locating on their frontage road, but hey I'm not an investor in that endeavor so who'd listen to me.

There used to be services (maybe still are) before mapquest and friends that provided directions for trip planning - you paid $10 to AAA and they told you the "best" way to get from point A to point B. No one would have thought of patenting those directions, and you were not paying for a royalty for their use - your payment was for the work someone did (at sometime) to figure out a route - but you're free to look at a map and make some phone calls to the various state traffic agencies to find construction delay zones, etc. and work out your own route.

Say you planned, some years ago, to drive from Chicago to Los Angeles. Say you glanced at a map of the time and decided to "get on Route 66 headed west and stay on it till you see the ocean." Besides a trip with about 1000 burger joints, you now have some directions. Now say you asked your friend his idea of a good route for the trip, and he'd recently done that trip by contacting AAA, giving 'em $10 and they worked out a trip plan for him based on some criteria, and he got back: "get on Route 66 headed west and stay on it till you see the ocean." Do you owe $10 to AAA for those directions? What if they (like software) were patented?

Software patents are a bad idea. They impede progress. They tell (possibly justifiably patentable) hardware how to get from condition A to condition B. If those same directions would work on someone else's nonpatented hardware, then they should be free to be used.

software parents ARE different....

[Anonymous Coward]

Paul talks about software patents being no different than hardware patents. This is clearly false. The difference, my friend, has to do with knowledge. That is, a hardware patent on what your called "Pullies lever and gears" expires and people are allowed ot build the same thing. But even before that they can pop open the box and SEE how the pullies lever and gears are put together. Software on the otherhand has no transparency at all, rather for software a person may never know how something was built ebca

All well for an US company

[hopopee]

Yeah, this strategy might work for an US startup. But what about startups from other countries where software patenting has not yet evolved to the stage of cold war? Let's say they're doing great in their own country or even internationally. The next step? Of course they want to expand to US. And what has happened? Some US big companies might have already copied their ideas and patented them before this is happening. And there's always the patent trolls too.

From this point of view I'd say the patent system

Breath of fresh air

[bsandersen]

My first reaction to the (lengthy) article was simply, "it is a breath of fresh air to read something thoughtful and insightful on software patents." As part of full disclosure here, I should mention that I have one (6,865,655) and participated in the arcane and sometime frustrating process. That said, the author's point that "fixing" the system might not be the right thing to do, either gave me pause. He might have a point.

After participating in several start-ups, I can also attest that the number of patents held directly affects your valuation. The author alludes to this, "A patent seems to change the balance. It gives the acquirer an excuse to admit they couldn't copy what you're doing. It may also help them to grasp what's special about your technology." Right or wrong, it is one of the external measurements made by business today of a start-up's worth.

Software is the most complicated thing man has ever created. It isn't surprising that the Patent Office struggles. The question is, as software professionals, will we choose to help or just stand by like "art critics"? Software engineers usually see a bad system and want to immediately "chuck it", re-write it, and go again. We can't do that here. We need to do the thing we all hate most: on-going maintenance. We could help if we engage and participate. Perhaps more thoughtful discourse like this will help us get started. My 2-cents.

If you're against software patents...

[91degrees]

I'm against software patents. Copyright provides more than adequate protection for software.

I'm in favour of hardware patents. Hardware does not get copyrighted.

Why is this moreon telling us what our views are without even understanding them in the first place?

Best insight is in the footnotes

[mutterc]

[8] If big companies don't want to wait for the government to take action, there is a way to fight back [against patent trolls] themselves. For a long time I thought there wasn't, because there was nothing to grab onto. But there is one resource patent trolls need: lawyers. Big technology companies between them generate a lot of legal business. If they agreed among themselves never to do business with any firm employing anyone who had worked for a patent troll, either as an employee or as outside counsel, t

As an IBM'er

[Nursie]

though a recent addition to big blue, I'll say this - whilst big blue tries (IMHO) to be friendly, that doesn't mean they'll rule out anything as far as business methods go. They do feel that what they patent is worth a patent because they have researched and developed it, and they also feel that as long as the current system is in place they have no choice but to participate. Hiring practices in the legal department though - I'm sure they already have their own ethical guidelines, how much attention they

His analogy of the USPTO as a loose woman...

[ameline]

It's a very good article -- and while I've not yet finished reading it, I loved this quote;

  "...the USPTO in effect slept with Amazon on the first date."

As a side note, if any USPTO examiners who are assigned to one of the several applications I have pending are reading this; I will still respect you in the morning -- no really, I will. :-)

Re:His analogy of the USPTO as a loose woman...

[cluke]

OK, why don't you slip into something more comfortable, Bob's on his way round now.

Actually, there is a difference: Copyright

[Jerf]

Actually, there is a good distinction you can draw between software patents and conventional patents that is strong enough that you can't automatically infer that being against software patents means you are against all patents: Software patents are the only things I know of where the patented objects are also covered under copyright law.

I go more into depth about this elsewhere [jerf.org], but the short answer is that we shouldn't be surprised that patents, balanced for one type of use, and copyrights, balanced for another, make no sense when both are covering the same thing, since they were never designed to do that.

Obviousness is a real problem too, of course, but that's more a practical problem, one that could be corrected by more aggressive denials by the PTO. This is a fundamental conflict.

Why software patents are different

[Beryllium Sphere(tm)]

Paul Graham says software patents are in the same category, ethically, as machine patents.

o Software can be sent to customers almost for free. Physical goods needed the protection of a 17-year monopoly because back in the old days progress was slow and it took years to build your factories. No patent monopoly, no payback. Software inventions can make money without patent protection.
o Software can use copyright protection.
o Patent examiners and juries can understand gears, wheels, and aircraft wings.
o Paul Graham says machine patents really cover the algorithms hard-coded into the arrangement of parts. No. Patents cover implementations. When the crankshaft was patented it was still legal to build other implementations of the algorithm "given linear motion l=sin(wt) set circular arc theta equal to l mod 2*pi*r and draw rotary power", as long as those implementations weren't crakshafts.
o Machines are crystallized human ingenuity and effort. Software patents are crystallized mathematics. The RSA patent, which made it illegal to do certain kinds of modular exponentiation, is different from anything in the mechanical world.

Contradiction

[StormReaver]

He makes two contradictions that completely unravel his entire premise that software patents are not evil.

First he says:

"There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not."

Then later, he says:

"Building physical things is expensive and dangerous. The space of possible choices is smaller; you tend to have to work as part of a larger group; and you're subject to a lot of regulations. You don't have any of that if you and a co

Man, what an essay!

[multiOSfreak]

This guy mentions hockey, Shakespeare, the Industrial Revolution, Richard Stallman, the movie industry, and even the frickin Masons, all in one essay! He also manages to take a shot at the president.

Oh yeah, and he talks about software patents a little bit as well. :)

Oh the whole, I agree with Graham on most of his points, especially this bit:
...it's better, even from a purely selfish point of view, to be constrained by principles than by stupidity.

I agree, "non obvious" is the problem

[jonathan_95060]

I am I ok with ETH-Zurich patenting the IDEA encryption algorithm because this algorithm IS truly non-obvious. You, me and Joe Q. Hacker are not going to infringe on this patent accidentally.

One click shopping or Apples patent on the "3 pane interface" for itunes are stupidly obvious. A person coding in a drunken fog should not be able to create an infringing program by accident (IDEA passes this test, one click and 3-panes does not).

The reason many folks (like me) jump on the anti-software patent bandwagon is a lack of confidence that anything short of abolishing software patents will be effective. Obvious patents benefit powerful corporations who can set their minions to the task of patenting belly button lint and other "innovations". With all the vested interest in bad patents it is easy to see why we are skeptical that meaningful reform (i.e. enforcement of the "non-obvious" clause) will occur. Of course if software patents cease to exist then the slippery slope of what is "non-obvious" disappears.

Mind you I don't think we will be successful in abolishing US software patents (not without a bloody "cultural revolution" a la Mao Tse Tung) but the disgust engendered by horribly bad patents naturally inspires an excessive reaction in the opposite direction.

BTW, if you think it is an accident that bad patents are issued left and right, think again. You won't find Microsoft, Oracle and Amazon spending millions of dollars lobbying Congress to properly fund the patent office. The patent office is underfunded because the people who get face time with our leaders like it that way.

Judging on Current State

[Bob9113]

I like much of Paul Graham's work. I like a lot of this piece - lots of insight. There are a few pieces I disagree with that have already been touched on. One I would like to add is that I think he is judging the landscape a bit too early:

A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee.

That is the majority of what has happened in the past 10 years because the rampant proliferation of overbroad software patents has just begun. The market is a Darwinian environment. It selects for those who take advantage of flaws in the system and it takes time to optimize. A giant, gaping, cash-gushing flaw in the system right now is the granting of overbroad patents, and in software it is a relatively new flaw (though the flaw itself has a long and ugly history - Bell wasn't the only guy to invent the telephone - he was just the first to the USPTO). Graham makes this point to an extent saying that the USPTO hasn't adapted to software patents yet.

But he misses the correlary: Businesses have just begun evolving to take advantage of the software patent flaw. What has happened so far is only a twinkle of what is to come. Sure, Amazon got stung in the reputation department. But the patent trolls of the world have no reputation to sting. Is Eolas going to lose a bunch of customers over the active browser patent? I'm not saying Eolas is wrong, just that they won't be moderated by the environmental influence that Graham mentions regarding Amazon. The patent trolls are just starting to evolve, and they have natural defenses against the moderating influences that have kept the patent law departements of IBM, Microsoft, and Oracle in check.

And it's not going to be limited to a few fringe companies with a few fringe patents. More and more the executroids are defending companies that buy patents because they create liquidity in the IP market - enabling research heavy corps to capitalize their patents without having to bring products to market. IE: they are saying it is a good thing for the patent trolls to buy patents - regardless of whether they have any intention of taking the embodiment to market.

Paul is judging the system based on what has happened so far. But the market is just beginning to evolve. As broken as it is, the current state is very far from the invention wasteland, strewn with the bodies of a million inventors and ruled by packs of lawyers, that is coming.

Patents + Software = eternal monopoly

[mmeister]

There are many sides of this issue to take, but I'm going to only focus on one that I think most people don't talk much about.

Software Patents extend for an exorbitant amount of time relative to the industry. 17 years amounts to around 11 generations (assuming 18 month cycles) of software. That's an eternity in the software industry.

It would be the equivalent of saying that a regular patent could exist for 50-75 years. Imagine having a 50-75 year monopoly license on a drug or a way more effeciently generate electricity. Yet, we treat software patents just like that.

There are plenty of existing cases that show this. Look at the generic multimedia patents that still affect software today. The reason most of these patents sound nonsensical when we see them is because we're about 2-3 generations past when they were relevant.

Ultimately, software patents don't spur innovation. Today, they actually stifle innovation. It is getting more and more difficult for the small companies to simply write cool new software. More lawyers are involved today and it slows down the process.

And these software trolls that exist and don't contribute anything to society make a bad situation much worse.

Valuation & a Patent's Value

[csorice7]

Couple thoughts as a previous big co. acquirer and with some experience in the patent arena.

As a big company... I've worked for a few Fortune 500 companies that have done extensive acquisitions and as a 'big company' guy, the concept that patents are solely used as a chip for negotiations is a naive statement. When buying the assets of a business, the patents and trademarks are typically the ones that last. Many entrepreneurs (I should know as I am one now) are interested in cashing in and as a result, an acquiring business cannot solely look to relationships or know-how for value, so IP is what's left. If you really have a truly unique idea/product/service, then protecting it should be stupid-easy (and with luck, people will say it was obvious 10 years later because of its streamlined solution :P).

Patent novelty is an issue in need of resolve... I don't believe in quantity over quality as Paul Graham might suggest, but I do believe in quantity to be successful. The process is age old - find needs, solve problems, research for current solutions and protect the best ideas. Getting quality patents should be easier now since more data is available. The USPTO and the market really do have a new set of options to consider (e.g. peer reviews, more collaboration amongst reviewers). Slashdot members can find novelty, or lack thereof, in a topic in less than 30 minutes - why can't the USPTO? With a production-line environment at the PTO, it is hard for patent agents to get a fair chance to research technology and be rewarded for deep tenure in a field. We should avoid thinking of this as 'patent reform', but rather as funding the system approapriately given the systems explosive growth.

In the end, patent ownership, like land ownership, has rights and benefits that shouldn't be reduced to a simplistic version of cold war analogies of large companies determining our fates. The patent system should level the playing field and give small guys and individuals a chance to have rights. BTW, if we should ever be worried about the small guy, now is the time. Individual inventors' patent issuance has decreased every year since 1999 - http://www.uspto.gov/web/offices/ac/ido/oeip/taf/i nv_utl.htm [uspto.gov]

CSorice

Patent Trolls are a big problem

[epeus]

from my blog [blogspot.com]
I broadly agree with Paul Graham's essay on Software Patents [paulgraham.com], but I do think he underestimates the damage from patent trolls, and from what he calls the mafia-like behaviour of some patent holders.
Paul has been lucky in the field he has worked in, but in the Audio and Video area there are many patent thickets. Perhaps it is the history of Farnsworth's victory over RCA [farnovision.com] that makes video engineers patent hungry.
My first startup, The MultiMedia Corporation [archive.org], was a spin-out from the BBC in 1990. One of our products was a program called MediaMaker [findarticles.com] that combined video from tape or videodisc, CD Audio, Pictures, digitised audio and Director animations into picture icons on a timeline for making presentations. It was demoed on stage at Macworld by the CEO of Apple, and we got Macromind to publish it.
Then the patent troll showed up. A company called Montage had made a video editing system that included several video monitors showing edit points from tape. The company had gone out of business but a lawyer had bought up the patents, including one on using a still image to represent a video sequence. The troll was working his way round the video companies, and he caused enough trouble to stop work on the product while we worked on a legal defence instead.
Later, while I was at Apple on QuickTime, there was a steady stream of patent trolls claiming that Apple should pay them royalties; enough to keep several lawyers busy, and a lot of engineers spending time working on prior art evidence demonstrations.
Several potential features were excluded from QuickTime due to patent thickets. The obvious one was the Unisys LZW patent that encumbered GIF, but there were other more subtle pressures that meant adopting open source codecs was discouraged. Working on the patent license agreements for MPEG meant that technology ready to ship was deferred pending legal agreement [com.com] on more than one occasion.
So I'm much lass sanguine than Paul about this. I think software patents should not be granted, and the European Union's banning of them [openrightsgroup.org] is the right decision. I hope the Gowers Review [openrightsgroup.org] in the UK makes this UK law as well.

Patents in General

[dcam]

I agree with Paul Graham's leading paragraphs to some extent.

One of the things I hear a lot on slashdot is that somehow software patents are different, that with software there is only one way to do things and that the patent blocks that (eg the LZW algorithm). What is more this is described as unique in software, ie this did not occur before they allowed software patents.

The thing is, its not. I was chatting to a biologist friend regarding patents, and there are similar issues in biology. He was describing one particular process for extracting DNA which is the so much better than earlier methods that it is, in effect, almost the only one used. The process (and the enzyme) is patented, so everyone who works in this area licenses the patent or buys the enzymes from a licensee.

Or take the medical field. If you patent a drug, and there are no other comparable drugs then if people want to use that drug, they must license from you.

Or take the area I was trained in, Engineering. Suppose someone patented FEA (Finite Element Analysis).

The point is Paul Graham is largely correct. The issues we are having with software have occurred earlier with patents. They are not completely new.

Paul Is A Victim Of The Patent Stupidity

[Goo.cc]

In August 2002, Paul wrote and published the article "A Plan For Spam". On December 13 2002, Networks Associates applied for spam filtering software patent that includes "Bayes rules". From the patent (#6,732,157):

"wherein the utilization of the Bayes rules further includes identifying a probability associated with each of the words; wherein the probability associated with each of the words is identified using a Bayes rules database; wherein the electronic mail messages are filtered as being unwanted based on a comparison involving the probability and a Bayes rules threshold; wherein the threshold is user-defined."

Maybe I'm just not wearing my tin hat today but I believe someone at Network Associates read "A Plan For Spam" and applied for a patent on it, every though it was not an idea created by them. That is sickening.

Re:The US Patent Office is very generous . . .

[jbrelie]

Buy three - Get one Free!!!

It's marketing. The tobacco companies do it all the time. (Thanks!)

Re:The US Patent Office is very generous . . .

[servoled]

35 USC 101:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title [35 USC 1 et seq.].

What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.