Making the Case Against Software Patents?

heretic108 asks: "I'm an open-source developer in a small western nation, which is slowly starting to take interest in Open Source, but whose (still MS-dominated) government is currently considering adopting a software patents regime similar to USA. This nation boasts a smart and feisty IT community, who have been terribly under-represented in government. I have a meeting in a week with a prominent member of the legislature (who has IT portfolio interests), during which I will have the opportunity to put the case against software patents. I'm asking for help in assembling information for use in the anti-patents case. Thank you dearly for any and all help you are able to provide here."

"I'm looking for references that cover the following subjects:

• Triviality of some patents
• Patents as anti-competitive instrument
• Patents' discriminatory nature - difficulty faced by smaller developers with patent enforcement
• Costs of patent searches, and their impact on the creative flow of software development
• Clear evidence that a software patents regime is squeezing small and independent players out of the industry and creating an oligopoly for the largest players
• Clear evidence that under the software patents regime, the entire 'space' or public commons of programming concepts is being subsumed into private ownership
• Clear evidence and examples of patent law being abused and having a net anti-innovation effect
• Anything else you have bookmarked, or can google upon, which can help build the most solid case.

The most desirable materials will be those written and/or compiled by the most respected academic, business, technical and legal minds. I'd like the front page of the folder to sport a series of punchy quotes.

(Also, if anyone can find the source of the quote attributed to Bill Gates arguing that the modern patents regime, if it existed decades ago, would have slowed the industry to a standstill).

Also very desirable will be testimonials from senior staff of small to medium R&D and body-shop houses, truthfully showing the negative effects patents have had on their ability to compete.

And, very importantly, any brief testimonials from indepenedant developers who have not intentionally stolen intellectual property, but have actually been squashed under patent laws."

Material against software patents? Easy...

Slashdot topic 155 [slashdot.org]

Re:Material against software patents? Easy...

Sadly, I don't think the person your are about to see is likely to be impressed by reading Slashdot.

However, I DO think they might be impressed by The UK Government's Conclusions to the question: 'Should Patents be Granted for Computer Software or Ways of Doing Business' [patent.gov.uk]

Donald Knuth's argument against patents

A copy of Donald Knuth's argument against software patents can be found on the LPF's web site [mit.edu]. He is a very well respected computer scientist and programmer and makes a good argument.

Re:Donald Knuth's argument against patents

Noted Professor Jeffrey Ullman also wrote a paper called Ordinary Skill in the Art [stanford.edu]. His conclusions are:

• The patenting of algorithms and the software that embodies them leads to inequities as often as it protects true innovation and genuine innovators.
• The standards for innovation set by the CS Theory community should be given more weight when deciding the validity of a software patent.
• There should be an effort to educate the courts on the distinct nature of innovation in computer software, and to help distinguish innovation from wishful thinking or the fantasies of people who are unaware of the state of knowledge.

He has been involved in many patent-related cases, and is recognized as an expert witness in these cases.

Re:Bill Gates said it first.

Found sever google references to it citing 'Bill Gates, 1991 memo'. FWIF Here's a link to what is supposed to be the actual memo. [std.com] (std.com)

A slashdot day to remember

Just think: someday I'll be able to tell my grandkids where I was when I heard the news that a Bill Gates quote was modded as +5 Insightful on slashdot....

GMD

Re:Great.

Well, you do realise in most countries outside of the US, patents can't be granted on software ?

Don't confuse patents with copyright - programs can and are copyrighted automatically by the author(s). However, in most countries you can't patent a software method. So for example, the one-click patent wouldn't stand outside of the US.

However, certain large corporations are lobbying the EU to introduce software patents. And guess who would be the only ones to benefit from this ? Yes, that's right, those same large corporations.

For more information. check out eurolinux.org [eurolinux.org]

Tux2 is hurt by patents

Status of Tux2? [zork.net]

Re:And for you US citizens

Ya know, if you want to change laws, signing petitions addressed to "The United States Government" is not the way to do it. The US is a representative democracy. Write letters to your congress people, talk to them about your issues, and, for crying out loud, primary elections are Tues. Sept. 10. Vote, people, VOTE!

One tip in case presentation...

Before you dive into google and read the thousands of pages listed on this subject, try to think up some arguments for yourself.

Once you've formulated some arguments, then use google/google groups to look for confirmation - writings of other people who have formulated the same argument.

This will give you confidence when making your case because you will really understand what you are saying.

If you just recite somebody else's argument without understanding the proof you won't come across as very convincing.

True Murricans!

Good Lord! Don't help this person!

It's bad enough our country is destroying its technology sector with special-interest legislation, patents and the DMCA - don't make things worse by helping some other nation get a leg up by avoiding this morass if idiocy!

Show some patriotism!

MjM

Satire Impaired? Please don't mod

No 1 reason against software patents

Proprietary code should be protected by a copyright, not a patent.

You can copyright a work that is a product of intellectual endevour, but you can't patent the words used in writing it, nor can you patent sentence structure and the language used, or the media used to store and distribute. And that is what software patents try to do, restrict the very language use and tools we use to contruct our bodies of work. It is so easy to accidentally discover a method used to solve a problem strickly in a clean room setting that could infringe on some patent.

Copyright is the way to protect software, not patents.

Dave Winer Hate s Patents

Dave has written a ton of stuff...some of it might be useful.

A day without programming? [com.com]

Patents and the W3C [userland.com]

Killer Patents [userland.com]

Amazon's XML Interface [userland.com]

Patents, lawsuits plague the Net [com.com] (Dave is quoted.)

Notes on competing [userland.com]

can we play guess the country?

i understand if you post a question to slashdot and it's sensitivity leads you to keep your company's identity a secret... but your country? i don't understand the secrecy here...

ireland? portugal? bulgaria? jamaica? suriname? senegal? burkina faso? togo? can someone throw us a bone here?! ;-P

I don't think you should argue this point

Patents as anti-competitive instrument

The whole idea of patents, AFAIK, is to grant a temporary monopoly for the patent holder, and thereby giving them a greater chance at a return for their invested R&D. This isn't a flaw of the system at all. Now how certain patents (software, etc.) are approved is another story.

You're all wrong. The point of patents is progress

The original point of patents (in the US) was neither to protect profits nor the small inventor, it was to encourage invention and progress:

The Congress shall have Power [...] 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 [US Constitution, Article I, Sec. 8].

You're confusing the means with the end, which is the sort of thinking that got us into this mess.

Re:I don't think you should argue this point

Indeed, a patent provides exclusive rights to an expression of an idea, to allow the creator to benefit from the sale of their innovation. This protection is intended to encourage investment in R&D, by ensuring that such work can be profitable.

However, this does not mean that this point should not be argued. Firstly, whether this benefit outweighs the costs of a patent system can be called into question. Patents do serve the function of creating a temporary monopoly; whether doing so for software is desirable or not is not something which should be assumed. (Really, this question could/should be be asked in general for all industries, and has been for a very long time [earlyamerica.com]).

I think it is crucial to keep firmly in mind that patents are intended, and created for the exclusive purpose of the betterment of the public good. Patents are justified by claiming, "Without protecting profits, no one would innovate. If we desire innovation, we must protect those who innovate and ensure they can profit from their innovations, so we may all benefit from them. We must have innovation." One might argue that patents and trademarks stifle the free market.

Moreover, this idea of the patent system as a useful and justified mechanism for protecting the innovator, is entire predicated on the granted monolopy being temporary and limited. If, like we have witnessed in the entertainment sector, intellectual property rights are continually extended, the purpose and implementation of patents, copyright and trademarks will be betrayed and the justification of them will become unsupportable.

Your point is accurate, however, I do not think that it supports your conclusion. Patents by design grant monopolies. However, patents can be and are anti-competitive when abused, and may be argued to be anti-competitive in any form. Monopolies cannot be said to be conducive to competition. The limited form of granted monopolies used by the patent system may salvage a type of competitive system. Legitimate arguement for both sides of this debate can be made in a compelling manner. This point is germane to the discussion, and should not be excluded on the basis of the inherently monopolistic nature of patents.

Read

Read the July issue of Forbes magazine, which talks about patents and how they can help, but how they are being used to not help the economy.
[forbes.com]
Link 0. This is the entire issue

Link 1 [forbes.com]

Link 2 [forbes.com]

Copyright is the better choice

The concept of a Patent was never intended to relate to computer software ; a Copyright is a much more accurate and viable protection option for individual companies rights.

With Software Patent, you are protecting an actual system of execution or problem solving. The problem is that the essential knowledge any computer programmer has is not protected (and could not be), and with software in particular there is no *system* that is not a very simple extention of commonly understood concepts. In short, computing overall is simple when you analyze software modularly.

Take for example the attempts to patent, 'click-throughs' or 'downloading software after authenticating'. Attempts have actually been made to patent these concepts, and they are not *bad* examples - in both cases the wording of the patent request was executed in such a way as to gain control over something that was seemingly legitimate because it was a simple extension of 'click-through' or 'downloading'. In both cases the patent *would have* given control over these actual acts. This is not simple wording, it is the nature of software.

My own company develops software, we have a representative for patent and copyright, and we are more than happy to utilize his services as a Copyright agent to protect our rights. We copyright the documents that explain our business, our systems, and which we feel portray us best. Over all the end result is protected business, not a protected product. It is in the representation of a product and a business that competitors gain their foothold ; that should be the real focus here.

A request in return

Can I simply make a request that if you are able to gather this information together in an organized format, could you please put it online for the rest of us? If so, maybe there can be a slashback getting the URL back to everyone. Thanks.

JPEG as example

I think the easiest example why patents are bad is the recent JPEG patent: JPEG is, without any doubt, the most widespread compression format for images. Every expert should know it. But just last month, after over 10 years of existence, some company came up with a patent that has valid claims against JPEG. How can any company build a product without violating somebody else's patent when nobody noticed JPEG's patent violation for 10 years, not even the 'inventor' of the patent?

The main problem is that the concept of patent seems to assume that it is impossible that two people have the same idea. If somebody uses a patented technique, he must have 'stolen' it. But that's not the way it is in reality, because people 'reinvent' things without knowing the existing patents all the time. Often you just need to think about a problem set and get the same, patented idea. And this is exactly the thing that should be changed of a patent: when you use something that is patented, and you have never seen the patent's content before, you should not have to pay royalties or damages unless the patent holder can prove that you 'copied' his invention and not reinvented it yourself.

The country is Australia

Quoth the poster (heretic108):
I worked for the Australian subsidiary of Wang Labs, at the time when Wang was the #2 computer company in Australia.

You go to the user page (ask.slashdot.org/~heretic108 in this case) and read a few articles at random - you can usually find out where someone is from.

Given that you're speaking with an Aussie legislator, I recommend a national sovereignty / defense argument. You should point out that likely rivals in the region of the continent of Oceana - I speak in particular of India - have huge, established software industries that could prove a threat to Australia if Australia doesn't maintain software autonomy. It's okay to be vague, but use some everyday words as if they had some specific technical meaning in terms of "information warfare over the next century."

That ought to persuade the nuevo-Thatcherites in your xenophobic government.

No, the country is New Zealand

In this post [slashdot.org], he mentions being glad to have moved out of Australia, and that he is now living in New Zealand. That post was less than a week old.

Patents

Patents were designed for inventions that needed a machine shop to construct. The lonely inventor in his garage could design and hand-mill a sample of his machine, but could never mass-produce one. The patent allowed him to get some money by selling the rights to manufacture it to a company that could. Without the patent, the large company had a huge advantage in that the little inventor would have to construct an entire manufacturing facility, while the large company already had one.

Unfortunately for software (and also for business ideas) the costs are exactly reversed. Anybody capable of inventing something already has spent 100% of the manufacturing costs and already possesses the machinery necessary to produce the invention (ie a computer). The patent does not protect the small guy. I expect if you check you will find that there are absolutly NO examples of any single inventors owning a patent on software or business methods.

Instead patents can be used now by large companies as the only method they have to prevent the little guy from starting up. This was true before but completely dwarfed by the need for expensive manufacturing facilities, so before patents did not screw up the market.

There is also the problem that due to the average public's poor understanding of software, the equivalents of nuts and bolts are being patentened. Or a certain thread spacing on bolts is being patented after it has been adapted by virtually every manufacturer, forcing the inventor who cannot afford to license the patent to mill their own bolts and make a machine that nobody can fix because standard bolts don't fit.

Today it is impossible to write any piece of software without violating patents. Linux probably violates hundreds. Windows probably violates hundreds as well (many of the same ones as Linux). Nobody knows.

Any real invention in software is large and complex enough that it covers many pages of paper. It is easily protected by copyright. Or you can make it a trade secret and try to obfuscate the invention in the resulting product (this works very well, simple compiling seems to hide the original in a way that makes it very difficult to retrieve). There is absolutely no reason for patents in this area, their only purpose is to deprive the small inventors patents are designed to protect, and move power to those able to afford the patents.

Should I even point it out?

At the risk of getting modded -1 flame for taking a politically incorrect position in a slashdot post, I feel compelled to point out that there is nothing wrong with software patents.

There *may* be something wrong with some of the patents that have been issued. And that goes for all kinds of patents, software or non-software. But I'm not even sure about that.

There's certainly nothing wrong with the length of the patent. 20 years sounds really long in computer time but it isn't really-- the fact that computers move so fast means that the patent is more likely to be worthless before it expires... meaning if you want to exploit your patent you have to strike while the irons hot. There is no potential of monopolizing a segment of the industry for 20 years here like there was when the cotton gin was patented.

As party to a couple patents, one of which was claimed by posters on Slashdot to have "ethernet networks" as prior art-- I think a lot of the hullabaloo is from people who don't bother to read the patent, see what really IS being patented, and then just claim that anything that does networking is not-patentable because ethernet's been around. Never mind that it is a novel and original process (which to this day has not been beaten by others.)
Now, the market being what it was we were unable to successfully exploit that novel process. But if we had, the 5 years since the patent was issued would have given us time to get some business going. As the SMALL GUY, the patent was critical to protecting the company's interests--- otherwise a large company would have just taken our idea and run with it and we could have done nothing. Eventually one of the large guys bought the company, something that also never would have happened if we hadn't been able to patent the product.

So, basically, all the people saying "software patents are wrong" are saying that the dozen of us who labored for 4 years coming up with this novel process should have enjoyed no protection from others copying it and profiting from our work, and deserved, essentially, no compensation for our work at all. You literally want to take food off of our table. You want us to be poor and possibly unable to feed our families. You are arguing for the oppression of the small guy (as usual) under the guise of protecting the small guy.

Anyone with a two bit lawyer can get themselves a patent. Only multibillion dollar corporations have multibillion-dollar market presences to leverage in the competitive landscape. The patent is an EQUALIZER, not an OPPRESSOR. If the corporation came up with the novel idea first, then they earned it and deserve the patent... but fortunately something about large organizations makes them less competitive. They are less likely to come up with the killer innovation-- hell its even become a trend with companies acquiring innovation by buying small companies rather than developing it in house.

Without intellectual property protection, how is the small guy to protect himself from the bigger companies with better market presence who can just copy the product wholesale, put their name on it, and sell it? WE were dealing with the constant announcements by Microsoft that they had already exceeded our capabilities (A flat out lie, but one that the potential customers had to take seriously.)

Yes, there may be poor software patents. But I don't think Amazon's "one click" covers just clicking a button, the prior art of the Macintosh in 1984 does not obliviate that patent-- there's got to be more too it.

If your country wants to be a good country for IT, to compete against the US. Go to your political friend and make the case FOR software patents. Caution him that the patents have to be decent, and that they need engineers who can understand them to evaluate them. But if you want to have a job a decade or so from now, the best thing your country can do is protect intellectual property.

After all, as IT people we don't make widgets, we move bits. Either the configuration of bits has value or it doesn't. Any configuration of bits is only intellectual property, its not real property, its not a physical product. Since it has value to those who need it, those who made it deserve compensation, and protection from those who would steal it.

Support software patents. They are not only necessary to protect the small guy, they are a form of HUMAN RIGHTS.

It not coincidental that those who lead the opposition of software patents, in the guise of stallman, et. al, also opposed human rights. If they had their way, nobody would be allowed to charge for their labor, no programmer would be allowed to get paid. Oh, they won't admit to it, but what else will it be when it is illegal to ship software without the source code?

The software economy is driven by innovation, and getting paid for that innovation. Once its no longer innovative, its in everyone's best interests to open source it. Market forces will insure a continuing supply of new open source software.

But if you take it too far and make selling your innovation illegal -- by removing the protections of patent and copyright and implementing the Stallman Politburo-- you will kill the software industry.

Protect software patents. You have a right to your body-- you own it, it is property. The work you do with it you own as well, as property. You have a right to trade that work for money, and to REFUSE to make the trade with people who won't pay.

Taking away software patents is essentially saying that anyone who is a programmer doesn't have the right to refuse to work for someone who won't pay.

Simple

Just look at the ratio of bad patents to good patents. ("Good" meaning encouraging real innovation and rewarding fairly for it.)

I suspect the breakdown would look something like this (rough-ass guess only):

Good Patents: 0.2 percent
Bad Patents: 20 percent
Patents that were never used: 79.8 percent.

petition against software patents....

It was drafted by me, with help from RMS and Bruce Perens. The arguments it presents are, I believe, representative of the problems with the patent system in the US today.

See my sig below...
GJC

Computer science as a science

You might want to look at the science angle. Computer algorithms aren't really different from mathematical algorithms. Can you imagine a mathematician patenting his method for finding large primes? Patenting software algorithms is exactly equivilent. Wouldn't it be terrible if Dijkstra had patented the semaphore? Computer science would have come to an end! Computer science is a science like any other. New discoveries should be credited to the people that discovered them, but that shouldn't prevent other people from using and building upon that work. It just stagnates the whole system.