Forgot your password?
typodupeerror
Patents

Making the Case Against Software Patents? 346

Posted by Cliff
from the seeking-ammunition-for-the-debate dept.
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."
This discussion has been archived. No new comments can be posted.

Making the Case Against Software Patents?

Comments Filter:
  • by Anonymous Coward on Wednesday September 04, 2002 @12:16PM (#4195775)
    Slashdot topic 155 [slashdot.org]
    • by mickwd (196449) on Wednesday September 04, 2002 @01:33PM (#4196238)
      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]
    • by Anonymous Coward
      Well, What you need is imho a good argument. US politics view large businesses as the driving force of innovation. Patents became the way to protect industries who invested large ammounts of money into R&D. (Apart from the principal argument that the inventor should own an invention).

      Microsoft and others will use this argument. They will say that making software is time-consuming (=very costly) and that their product should be protected.

      The R&D-argument is very true when it comes to medicine, chemistry, electronics, microchips etc. Question is if this investment argument is true for software.

      Software is a different story. It's costly to make (If you use the microsoft way). However there is hardly any 'invention' coming from redmond. It's the copy problem that is bothering microsoft. Well question is, if this is a goverment problem.

      (Goverment-software issue)
      Would a goverment have to use expensive software because a software-producer has a problem?

      (Patents issue)
      Would a goverment have to obstruct open-source development because a software producer has a problem?

      (Patent issue)
      Is the Patent meant for helping a software producer out?

      2 Statements:

      1.
      Making illegal copy's of software is wrong and a company should have legal means of preventing it. Goverment should facilitate this with legislation and a good legal system. Solving it is not a goverment task. Patents may not be the right way to facilitate microsoft (and others).

      2.
      Innovation can't wait for microsoft. Innovation does not need microsoft. The software world is better off when people are free to use an idea.

      That last point is important. In US patents it is possible to get a patent on a Idea, a concept. Scientists, inventors or other creative people should not be confronted with ownership of ideas. That creates blockades where we do not want them. Most european legislation only allows more 'real' stuff to be patented. CD's with Win2k on it for instance. That needs protection. Not the idea of it. The idea must be expandable.

      Take the html case. Every money maker dreams of owning html. I hope this never happens. The freedom of it allowed it to grow beyond version 1.0.

      I hope it helps you.
      Greetings,
      Daïm
      • Well, What you need is imho a good argument. US politics view large businesses as the driving force of innovation. Patents became the way to protect industries who invested large ammounts of money into R&D. (Apart from the principal argument that the inventor should own an invention).

        There is an assumption here that big business is always doing the R&D. As opposed to taking something where most of the R&D had already been done and churning out a product.

        Microsoft and others will use this argument. They will say that making software is time-consuming (=very costly) and that their product should be protected.

        The only real cost involved in software is writing it, there is no substantial cost behind creating and distributing copies (the same also applies to music and motion picture recordings). The problem with the situation we have now is that it is difficult to work out if Microsoft's costs are really realistic. e.g. the could be incredibly inefficent at writing software, but this would only show up were they competing.
  • by dunham (35989) on Wednesday September 04, 2002 @12:16PM (#4195778) Homepage
    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.
    • by GlassHeart (579618) on Wednesday September 04, 2002 @02:16PM (#4196500) Journal
      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.
  • "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today." -- Bill Gates, Microsoft, 1991

    KWTCMA
  • Being -slightly- less secretive about the country you're talking about might help people analyze and answer the question at hand...

    -S
    • In this comment [slashdot.org], he mentions:

      I worked for the Australian subsidiary of Wang Labs...

      Nothing seems to indicate he's moved elsewhere. Still working in Australia, heretic?

      • Samrobb wrote:

        Nothing seems to indicate he's moved elsewhere. Still working in Australia, heretic?

        But he said he was in a "small western nation". Austrialia is so far east it's approaching the International Date Line [navy.mil]. It also is over 7.6 million square kilometers [geographyiq.com], the sixth largest country in the world; I wouldn't call it small.
    • my money's on finland.

  • by Lenolium (110977)
    It's simple, really, all you need to do is explain that most software patents are on shakey ground, as soon as someone bothers to write an implementation of the patent in Haskell (which is nothing more than Lamda calculus), it has then been implemented as a mathmatical algorythm and is no longer a valid patent. Having companies rely on such a shakey ground could mean disaster for the economy if someone were to rock the boat just a little to hard.
    Secondly, software patents go beyond the original idea of patents, in that if you designed something different enough, it would get it's own patent, but in the software world you must build your program in almost the same way in order to maintain compatibility. Otherwise, the company that patented the thing in question could have a stranglehold on the computer world for twenty years.
    • Also, make certain that you point out that the ability to patent file formats (.dwg, .mp3, etc) creates a situation that can encourage a monopoly and stifle growth (Autodesk, Fraunhaufer). Think how much better Autocad would be if they had to compete to keep their customers based on quality instead of compatibility with their current files...
    • You're patenting the ideas behind the software. Which means you're patenting the ideas behind math. The implementation doesn't matter. All software is math, and since it's possible to do any sequence of mathematical steps for no other reason than to do them, all software is the same as some abstract math.

      The main issue (IMO) is that people don't get math. Since they say you can't patent an abstract algorithm, but you can patent a mathematical algorithm if it's useful, you're saying that the same thing is both patentable and not patentable. The reason people think this way is that they think word problems aren't math problems. So, when you start giving numbers in algorithms real-word meaning, people get that confused GW Bush look and start fumbling around thinking that because the math has some real-world meaning given to it, it's somehow different than abstract math. Which is a load of crock. What we need is to send people back to elementary school so that they can learn that when you solve an abstract math problem, then you give the numbers real-world meaning in a word problem, you don't change the problem.

  • by Cyclops (1852) <rms&1407,org> on Wednesday September 04, 2002 @12:21PM (#4195810) Homepage
    Status of Tux2? [zork.net]
  • Sign the petition to get rid of software patents: http://www.PetitionOnline.com/pasp01/petition-sign .html [petitiononline.com] And for anyone who wants info on why software patents are bad: http://www.gnu.org/philosophy/patent-reform-is-not -enough.html [gnu.org]
    • by selan (234261) on Wednesday September 04, 2002 @12:47PM (#4195972) Journal
      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!
  • by Boss, Pointy Haired (537010) on Wednesday September 04, 2002 @12:22PM (#4195820)
    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.
  • by carrier lost (222597) on Wednesday September 04, 2002 @12:22PM (#4195821) Homepage

    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

  • by erroneus (253617)
    They lock up issues like "compatibility" and "interoperability."

    Suppose there are aspects of a communication protocol (say, SMB) are patented by a company. All the reverse-engineering and data collected packet-sniffing in the world are useless when the technology is patented. Compatible software written totally from scratch still falls [victim] under the hypothetical patents.

    It is, of course, very anticompetitive.
  • by Anonymous Coward on Wednesday September 04, 2002 @12:23PM (#4195828)
    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.

    • This is precisely correct. Computer programs simply expressions of mathematical algorithms which means they are discovered, not "invented". Worse, the fact that source code is not disclosed means that the searches for prior art are essentially impossible. This fact has been made substantially worse because software has traditionally not be patentable, so that nobody has bothered to share novel software discoveries with the patent offices.
    • And that is what software patents try to do, restrict the very language use and tools we use to contruct our bodies of work.

      This is precisely incorrect. Correclty issued patents do nothing of the kind.

      It is this kind of misinformation and make-believe that leads so many supposedly otherwise rational people to believe in the elimination of their paycheck under the guise of being less oppressed.

      Anything that fits the definition you just gave would NOT be novel and would have significant prior art and therefore would not fit the DEFINITION of a patent.

      You don't get to redefine what a patent is to fit your political agenda. ITs unfortunate that so many people believe this hogwash.
      • Let's talk about the real world ok?

        Patents don't have to be correct to be issued.
        Most patents seem to be issued incorrectly - just a short look will show you that most aren't novel to someone in the same field - it's often the next obvious step, or even already done step. See Rambus vs DDR. You'll see lots of issued patents with prior art. Probably someone has repatented the wheel again since I last checked.

        The patent office process encourages rubber stamping. The patent office can't be staffed by experts in all fields. The patent office loses little when issuing invalid patents.

        Patents in the real world only help the big corps. The small guys don't have the resources to win a legal battle against an invalid patent, they usually don't have enough patents of their own to fight back and do cross licensing. Whereas corps like IBM can always pull out a "how to draw line on x y grid" patent or thousands of other patents. The big guys can afford to apply for tons of patents even trivial ones.

        The patent system is pretty broken it's doing more harm than good, allowing more things to be patented will just extend the range of the shit it's spewing.

        Unfortunately I don't see how it can be fixed to do more good than harm. Throwing it away may actually do more good than harm nowadays.

        I don't mind if people keep things secret and never release them to the public. Other people are likely to come up with it on their own. If not, hey good for them for being so uniquely brilliant. Whereas patents nowadays don't encourage brilliance, they just encourage "first to patent some stupid thing".

        With patents even if you think of something yourself, you end up with tons of limits on how you can use it, I find that repugnant.
  • by webword (82711) on Wednesday September 04, 2002 @12:23PM (#4195831) Homepage
    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]

  • 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
    • Australia? [slashdot.org]

    • 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?

      Actually, helping people begin certain types of advocacy without calling the Big Guys' attention to it can be a good thing. It might be best to help this person put forth a strong argument (if you agree with it, that is) to increase awareness of the issue no matter which country. Once people are aware of both sides of an issue, they are better equipped to make wise decisions.

      However, this inquisitive person could as easily be one of the Big Guys' lackeys fishing for things to help refine their rebuttals and marketing tactics.

      An interesting dilemma, ain't it?
    • ireland? portugal? bulgaria? jamaica? suriname? senegal? burkina faso? togo? can someone throw us a bone here?! ;-P

      Most of those countries do not fall under the category of small western nation.

      Burkino Faso always reminds me of The Simpsons [snpp.com]

      "Three Weeks Later," says a caption on the screen, as Homer sits on the couch and reads a phone bill.

      Homer: Burkina Faso? Disputed Zone? Who called all these weird places?
      Brain: Quiet, it might be you! I can't remember.
      Homer: Naw, I'm going to ask Marge.
      Brain: No, no! Why embarrass us both? Just write a check and I'll release some more endorphins.

      [Homer scribbles a check, then sighs with pleasure]

      GMD

  • Somewhere to start (Score:2, Informative)

    by Fluid Donkey (97587)
    This site [mit.edu] at MIT gives a good overview. Even though it has a more american slant I think the arguments are pretty universal.
  • by vsack (558342) on Wednesday September 04, 2002 @12:24PM (#4195837)
    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.
    • On the contrary, I think this point is well worth making, for the following reason.

      The original point behind patents was to protect the small inventor, giving them an instrument by which their inventions would be protected against larger, already-established companies just copying the idea and reaping the rewards for themselves.

      However, the way in which patents are being used now is almost the exact opposite of what they were intended to achieve. They are being used by large companies to lock out (mainly smaller) competitors.
      • by stevenj (9583) <stevenj@@@alum...mit...edu> on Wednesday September 04, 2002 @01:48PM (#4196327) Homepage
        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.


        • Which is, of course, irrelevant. Patents propmote progress by protecting proprietary inventions and their profits.

          Patenting software processes promotes progress and protects proprietary profits. Not to mention human rights.

          Now say that 500 times fast, until you can say it without laughing and understand what it means rather than just trying to get to the end
          • How is this a human right? Making money is not a human right. Now, let's talk about basic fairness. Say someone gets a patent on something. Five years later, somebody independently comes up with the same idea. Is it really fair for the second person not to be able to use HIS innovation, just because he approached the problem a few years later? Software isn't like most products. Usually, when you come up with a product, just selling it causes the information behind the patent to become known. Thus, the patent in this case really does protect the person's right to utilize his work. Software isn't like that. Thus, it is entirely conceiveble that certain software could use patented algorithms without anybody else knowing. Now the patent system here just prevents competition, instead of protecting the first person's right to his work.
    • The problem is that the benefit from the incentive to obtain patents does not outweigh damage done by patents slowing development. In addition, there is no good way to approve software patents because of the abstract nature of the ideas involved. The link to Donald Knuth's letter near the top of this thread elaborates on these points very well.
    • by syo (413318) on Wednesday September 04, 2002 @01:31PM (#4196227)
      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.
    • Now how certain patents (software, etc.) are approved is another story.

      Also, the time frame during which one holds a patent needs consideration. Our technology is advancing at an accelerating rate yet, big companies want to hold patents longer.

      • Also, the time frame during which one holds a patent needs consideration. Our technology is advancing at an accelerating rate yet, big companies want to hold patents longer.

        Agreed. I don't think I'd have a problem with, for instance, Amazon patenting One-Click, as long as that patent expired after only, say, 12 months. In today's tech industry, that's still plenty of time to exploit a patent (and even to establish a sizable market share) without unduly injuring the creative work of others.

        Yeah, people would argue that they have an unfair advantage, but I disagree. If you invent something legitimately new (okay, maybe Amazon was a bad example here...), I don't see a problem with you being able to patent it. A patent on a new programming tool, protocol, algorithm, etc. would only cripple the industry if:

        1. It was the best or only way to accomplish a certain task; or,
        2. It was similar enough to other fields of technology that true innovation in those sectors would be restricted.

        In the first case, shorter patent lengths would resolve much of the issue. It usually takes some time for other researchers to duplicate a protocol, algorithm, etc. and I don't think 12 months would be too long. In the second case, the only real solution is for patent holders to give some consideration to the industry and patent only the specific applications that they plan to use. Shorter patent lengths, though, would seem to be the next best thing.

        Of course, I think that the situation is very different in Microsoft's case -- here we have a convicted monopolist, and I don't think they deserve to have any additional monopolistic power, even if it is "temporary."

        • I agree with what you are saying, but how do you streamline the process to the point where a pantent can be granted ...before it expires?

          One year might not be long enough, but three seems too long. Plus, the number of patents would go through the roof, for the exact same reason that people use them today: protection. First I think you have to fix the root problems before just reducing the duration will really make difference it should.
    • What might be argued, though, is that long patents on software amount to an anti-competitive monopoly - i.e. the definition of temporary in software is different from most other areas where patents are granted.

      If you think about it, Microsoft built it's monopoly up so fast and so strong that it puts all other attempts at molopoly power to shame. The software industry moves very fast, and the lifetime of a product is very short. There's no point in using expired patented concepts in many cases - they are dead and useless in the current market. The market basically out races the patent system, and any company that can stay ahead can keep their monopoly.

      Don't make the case that patents are anti-competitive - make the case that LONG patent times are anti-competitive. That can be defended successfully.

      Now if fewer dumb patents were granted it might not be as bad, but I wouldn't want to build the assumption of a competent patent office too deeply into the legislation.
  • Read (Score:3, Informative)

    by vluther (5638) <vidNO@SPAMlinuxpowered.com> on Wednesday September 04, 2002 @12:25PM (#4195843) Homepage Journal
    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]
  • so they can protect the intellectual property of their programs and the security of the installations in which they are being used, like the Death Star XP. The Emperor Bill has determined that an open-source advocate, Linus Organa, has reverse-engineered the operational schematics of the Death Star XP, and is, at this moment, preparing to take those plans to the Rebel Alliance. Emperor Bill has dispatched Darth Ballmer to intercept.
  • The essay on the main League for Programming Freedom [mit.edu] page is one of the more cogent ones that I've seen, although being written in 1991 it doesn't have as many case studies as it could now. (It makes the important point that it's not enough to simply eliminate software patents with the most obvious prior art, as some have argued. [bountyquest.com])

    The basic problem, I think, is that there is no shortage of ideas for computer software...there is mostly a shortage of good implementations of old ideas, and locking down the ideas so that only one entity has a monopoly on implementing them doesn't help matters.

    Put another way, when most patent infringement cases seem to involve independent invention, the patent system is not doing its job [cornell.edu].

  • If you are in Europe, you could contact eurolinux.org [eurolinux.org]. They run an extensive campaign against software patents.
  • by Ace905 (163071) on Wednesday September 04, 2002 @12:40PM (#4195928) Homepage
    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.

  • If glitz has any value, how about a quote from an extremely successful software entrepreneur:

    "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today." - Bill Gates
  • I guess I just don't understand why you wouldn't want any way for people to protect their intellectual property. Unfortunately this isn't what patents are doing today, they are just too trival - but don't confuse the implementation with the idea.

    Remember that the reasons that patents were invented is basically to help society. It is a contract, basically saying that if you will tell everyone your idea, we'll give you exclusive rights to it for a limited time. Yes, this does stop other people from using this idea, but in the long run, everyone can use it! Don't look at the short sided arguement that "I can't use it today", but the reality is that you get it in the future.

    It is the responsibility of governments (although, I'll be the first to argue they don't do a good job alot of the time) to look at the long term effects of what is going to happen. Government, by it's very nature, can't act fast enough to deal with little, everyday issues. Most of the polocies that they implement don't take effect for 10 years, much less be effective before then!

    Sorry, I know this has been rehashed here again and again. But I ask you to look at the longer term issue of people giving thier ideas to the public - this is the open source ethos, but with a little bit of protection to feed your family built in.

  • A request in return (Score:3, Interesting)

    by jaaron (551839) on Wednesday September 04, 2002 @12:53PM (#4196004) Homepage
    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 (Score:3, Insightful)

    by tjansen (2845) on Wednesday September 04, 2002 @12:56PM (#4196021) Homepage
    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.
  • by sam_handelman (519767) <skh2003@@@columbia...edu> on Wednesday September 04, 2002 @01:04PM (#4196054) Homepage Journal
    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.
  • ... that isn't wrong with the entire patent system.

    Anyone who agrees that patents should exist will have to agree that there are some software innovations that are worthy of being patented - for example if someone invented a superquick way to sort a string of numbers, say, or when someone invented the concept of indices on database tables.

    The problems you have with software patents apply to other areas too: the discrimination between poor and wealthy companies as far as patent application and enforcement is concerned, the cost of validating patents, the stupid patents that slip through the cracks, the cost of doing a patent search prior to development, etc.

    I don't think you will do very well trying to make a case against software patents on those grounds to someone who has considered those arguments and believes the patent system is beneficial - unless you're pitching to the average politician who is incapable of logical thought and therefore won't extrapolate on the arguments you are making.
    • by renard (94190)
      Anyone who agrees that patents should exist will have to agree that there are some software innovations that are worthy of being patented - for example if someone invented a superquick way to sort a string of numbers, say...

      If you believe this, then do you believe that mathematics can be patented? How about the Pythagorean theorem? Root-finding by the Newtonian method? Eulerian primality testing? Or the number Pi?

      You don't seem to have thought very much about the implications of algorithm patentability for the progress of mathematics and computer science generally. It is the nature of our highly networked, competitive society that most discoveries are made nearly simulataneously by two or more groups. Granting a 20-year monopoly to the "first" of these - as opposed to simply insisting on their rights of citation - does nothing to advance the progress of science under these conditions. Abolish all patent rights tomorrow, and progress in these fields will continue - or, more probably, accelerate.

      The quicksort algorithm - developed prior to the present age of software patents, and available in many free implementations - is actually a perfect example of this.

      -Renard

    • for example if someone invented a superquick way to sort a string of numbers

      quicksort? its fairly trivial and obvious to an expert in that field so even going by the patent office's definition, it shouldn't be patented.
  • The sooner software patents lock out innovation the sooner there will then be new laws supporting the right to creativity and innovation, for the benefit to society, created.

    Just because you have a patent or copyright on some piece of software does not mean you have somehow magically aquired the all knowing knowledge as to how all to impliment it for the benefit of society, nor are you somehow magically granted the resources to do it.

    GNU/Linux and how far and wide it has been implimented is a good example of what such laws supporting creativity and innovation can help to increase the rate of return to society.

    It is this playing around in the the middle area of this divide that is delaying the ultimate in advancements.

    Either shut down creativity and innovation completely so to know the stagnation and death that will follow it, or get the fuck outoif the way and let people who will do moving forward, have at it, for eveyone benefit including yours.
  • Well, I wish I had some useful reference or proof, but I'm sure you'll get a lot of that if you simply go to the patent section of slashdots history. I seem to remember some good ones. Anyhoo, a useful way of illustrating the problem that patents cause. Immagine if the screw were patentable. Everything sold with screws in it had to pay royalties to someone. Now the 2x4 is patented, same deal. Next the nail. Then dozens of different types of glue and staples. It's not long before only a small minority of already well-off companies can afford to produce things at industry standard. Ok, not the best analogy, but you get the idea. Software patents (unless perfectly regulated) deny programmers neccessary tools to build competitive programs.
  • Don't forget the old standby - the MIT LPF's rather huge paper from 1991 on the subject - it's still one of the better papers against patents around: Against Software Patents [mit.edu]
  • This nation boasts a smart and feisty IT community, who have been terribly under-represented in government.

    Smart people are generally underrepresented in every government. Tough luck...

  • It's clearly a case of optimal disoptimization. You hold patents not because your idea is particularly valuable but because other developers with equally mediocre ideas hold patents and use that to attack others. You could hold a copyright but that's only useful if everyone holds copyrights. The first time someone holds a patent among copyright holders that person is the big gun. So everyone else has to arm themselves as well because the big gun will use the gun against everyone else and your only protection is either to attack the big gun and hope for the best or be coopted by the big gun and attack everyone else who doesn't have a big gun.

    In this day an age patents really don't protect anyone because that is not the purpose they serve. They are the economic entry fee to the market. The financial hurdle over which a developer must hurdle to have something worth selling. Either you buy a patent or you sell one. That is what they do and that is all they do.
  • Patents (Score:3, Interesting)

    by spitzak (4019) on Wednesday September 04, 2002 @02:13PM (#4196478) Homepage
    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.

    • I do know of at least one individual owner of software patents - Raph Levien [levien.com]. But yeah, you are certainly right about the industry as a whole.

      I think software patents might work if they were limited to a very short term (1-2 years, 3 at the very most). This way you'd be encouraged to go out, invent something, and try to make a profit from it right away - rather than lurking around in a dark corner waiting to surprise the industry with an unexpected patent attack. (which seems to be par for the course these days...)
    • Re:Patents (Score:2, Insightful)

      by NexUmbrage (606196)
      There are several good criticisms made here about the patent system in general, but it is not very persuasive that inventions in software should be treated any differently than inventions in other fields.

      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.... 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.

      In the software scenario described, I agree that the inventor/programmer may not need the large company to provide manufacturing resources. In other words, it is possible that the inventor/programmer can "get some money" by selling the software product directly to consumers.

      But how does the conclusion, "The patent does not protect the small guy," follow from this scenario? A patent would provide the inventor/programmer an exclusive right to his invention, and if he is motivated to "get some money," as the scenario assumes, this may provide the protection necessary to market the software product.

      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.

      I missed the point related to who actually owns a software patent. In the first example described, the "lonely" inventor/machinist sold his patent to a large manufacturing company; he doesn't own the patent.

      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.

      As noted ("This was true before..."), patents have always allowed companies (large or small) and individual patentholders to prevent someone else from making or using a claimed invention. But what does "the need for expensive manufacturing facilities" have to do with respect to the patentability of inventions in software?

      My best guess at a restatement of the argument is: In olden days, large companies could have prevented the small guy inventor/machinist from entering the market with a competing (presumably infringing product) by asserting patents, but did not need to because the small guy could not afford to manufacture any competing products anyway. So the patents of large companies were only relevant in competition with other large companies.

      Unfortunately, that argument just says that hardware patents are good because small inventors can get them (although they have to sell them to large companies?), but software patents are bad because large companies can get them. Can't small inventors get patents for software inventions, too? In fact, the author makes the point that small inventors do not need to sell software inventions to large companies--that sounds empowering for small (profit-minded) inventors/programmers vs. large companies.

      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.

      Of course, the "average public" does not actually allow patents. I take this statement to be a criticism of: (i) the expertise of the Examiners charged with examining inventions in software, (ii) the ability of the USPTO to search for prior art references relevant to inventions in software, and/or (iii) the presumption that something is patentable unless the USPTO can prove it isn't. Of these, (i) and (ii) are valid concerns, but may not be any more worrisome with respect to inventions in software and/or business practices than in any other technologies that the USPTO is just beginning to deal with, and (iii) is not unique to software.

      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.

      This analogy to a hypothetical hardware invention clearly indicates that this is one of the costs of a patent system generally, irrespective of the subject matter of a given patent; it is not unique to patents on software inventions.

      Today it is impossible to write any piece of software without violating patents.

      I think the underlying criticism here is valid but not unique to software; it may be leveled at the patent system as a whole. In a worthwhile patent system the potential for chilling R&D (in any field) must be offset by benefits provided to the public by the patent system.

      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.

      Yes, I think the issue of how much it costs a small inventor to be issued a patent (and to pay maintenance fees on once issued, and to enforce if infringed) is valid and must be addressed, but I don't understand the case being made for how that problem is unique to software. There is nothing in the above statement that is not also true in the first small guy inventor/machinist vs. large company example, except that that example assumed the "lonely inventor" could afford the machine patent.

      • I was hoping somebody could come up with a better way of stating this argument. What I am trying to say is that the cost of the patent is the a major cost for a software developer. For somebody making a machine it is a minor cost compared to the cost of manufacturing the invention. This completely reverses the whole purpose of patents, in my opinion.
      • by mpe (36238)
        In the software scenario described, I agree that the inventor/programmer may not need the large company to provide manufacturing resources. In other words, it is possible that the inventor/programmer can ?get some money? by selling the software product directly to consumers.

        One thing to remember is that most software is not and was never intended to be some kind of product. A lot of software is more at the level of construction work.
    • by mpe (36238)
      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.

      Even if the large company did not have a manufacturing facility they would be far more likely than the inventor to have the resources to create 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).

      Similar issues apply to patenting of GM organisms. Whilst you might need all sorts of complex kit to genetically modify a cell once you have done so it can generally manage mitosis by itself.
  • A good case against copyright in software and elsewhere can be found here [ucla.edu].
  • Best Reference (Score:2, Interesting)

    by AlastairBurt (3604)
    You will find material on all those issues and more on the web site of the Foundation for a Free Information Infrastructure [ffii.org]. The site is incredibly well researched.
  • My arguments (Score:2, Informative)

    by Ed Avis (5917)
    I think you should make the case based on economic welfare, since arguments based on freedom or fairness are not considered legitimate by some (and will help opponents to characterize you as extremists, idealists, etc - in fact it is the everything-should-be-patentable campaigners who are taking the ideological position).

    I wrote to the European Commission when they asked for comments on their (rather biased) study of software patentability; I have pasted in these comments below.

    Comments on the study 'The Economic Impact of Patentability of
    Computer Programs'

    Ed Avis, ed@membled.com

    These are comments I would like to submit to the Commission about its
    study on software patentability. The order of the comments follows
    the order in which the study is presented, which means that comments
    on the study's conclusions come first.

    At the end are some more general comments on whether it is useful to
    grant patents on computer programs.

    SECTION I

    * Open source development

    I feel that the authors of the report have misunderstood the position
    of open source developers summed up in the quotation from one open
    source developer. This developer points out that while the platform
    itself is open, individuals are free to create proprietary products
    based on that platform. This is usually true. and it is what
    copyright achieves. But I know that most open source developers would
    not support the idea that a particular use of their platform could be
    patented by one company which then prevents others from making their
    own implementation---in effect making the platform itself proprietary,
    since it no longer provides an open base for competing developers to
    build on.

    The anonymous developer comments: `The goal of open source is to make
    sure that IP rights or other proprietary rights do not interfere with
    that platform'. This is the case for copyright on software, but
    software patents often do interfere with a previously open platform
    and limit choice. This is particularly true given the broadness and
    triviality of many software patents currently being granted.

    Actually, I feel that the emphasis given to open source developers is
    misleading. Certainly the individual developer is vulnerable to
    software patents, but then so are all development groups not big
    enough to fight back. It just happens that unpaid open source
    developers are at one end of the scale. (They are also more
    vulnerable because they cannot keep their development secret, a point
    I'll mention again later.)

    * Software patents necessary for American SMEs

    Commenting on the situation in the United States, the authors write:
    `On the one hand there is abounding evidence that the profitability
    and growth of independent and SME software developers in the States
    has often been to a significant extent dependent on possession of
    patent rights'.

    It should be clear that this does not imply that the existence of
    software patents helps small and medium-sized developers to grow. It
    could just as well be true that the legal climate is such that a small
    company without sufficient patents to use defensively is vulnerable to
    attacks from large patent-holding corporations, and thus it is
    necessary for small companies to acquire patents if they are to
    attract investment and grow. In fact I believe that this is the case.
    The fact that, in the present US legal climate, it is necessary for
    small firms to hire patent lawyers and start acquiring patents does
    not mean that small firms in Europe would be helped by the
    introduction of a similar system. It might just be a burden they
    would rather do without.

    Also remember that a fast-growing, highly profitable company which
    holds many patents does not necessarily indicate a healthy
    marketplace. It could be that this company is doing well through
    blocking competitors from entering the market and through demanding
    licence money from other firms. Such behaviour does not usually help
    consumers, who would prefer an open and competitive market. It might
    be better to have several companies, not quite as fast-growing or as
    profitable, who are competing freely and growing the total size of
    this market segment faster than a single monopolistic firm.

    It is jumping to conclusions to say, as the report does, that
    patentability of computer programs has helped the growth of SMEs in
    the US. All one can conclude is that in a market where your
    competitors are filing for patents, you need to do the same yourself
    if you expect to grow.

    * Do software patents help small companies?

    The authors claim that lack of software patents in the early days of
    the computer industry made it easier for large companies to copy the
    ideas of smaller developers. But is there any evidence that
    widespread software patentability has stopped this trend? A small
    developer holding one or two patents on a key idea will not stand a
    chance in a legal battle with a large developer holding thousands of
    patents, many of them vague or extremely broad but nonetheless
    granted. Software patents certainly do not level the playing field in
    favour of the small developer---except perhaps for the company which
    does no development work itself (thus not infringing on anyone else's
    patents) but distorts the market by accumulating patents on whole
    classes of computer programs.

    (There is also the implicit assumption that it's a bad thing for other
    companies to market their own products based on a particular idea.
    But in order for competition in software to exist at all, this must be
    allowed. The advantage of being first to market is particularly great
    in the software industry, there's no reason to create extra barriers
    to entry for those who are trying to bring competing products to
    market.)

    * Invalid patents

    The report acknowledges that many software patents granted in the US
    are invalid, but doesn't consider this important: `Their existence ... is hardly a significant barrier to software developers.'. This is
    to seriously underestimate the problem.

    Even an infringement suit for an invalid patent requires hiring a
    patent lawyer and a trip to court. Even if you win, the process can
    be cripplingly expensive for a small software developer, impossible
    for an individual or start-up. (This is true even under a loser-pays
    system, since it can never be absolutely certain who will win.)
    Multiply that by the sheer number of vague, possibly invalid patents
    held by many large companies, each one of them the subject of
    infringement proceedings, and you will see that invalid patents are
    just as much a problem as valid ones.

    The overheads of software development are much lower than those in
    most industries where patents are used; so the costs of fighting
    patent lawsuits are proportionally much higher. Any patents, invalid
    or otherwise, represent a real risk for the small software developer.
    Large companies can usually countersue with their own collection of
    patents and reach a cross-licensing agreement, so invalid patents
    aren't so much a problem for them.

    * Current quality of software patents

    The report concludes that we need to make sure European patent offices
    (national and EPO) do not fall into the same trap as the USA, to make
    sure they do not grant `obvious' patents. (It's not clear whether
    this means obvious to a software developer, or obvious to a patent
    examiner, which in practice is rather different.) There's no evidence
    that this is happening. If patentability is to be extended, it would
    be prudent to clean up the patent examination procedure before such an
    extension, rather than afterwards.

    * Antitrust law

    Anti-trust regimes are not an effective way to stop companies abusing
    their software patent portfolio. The speed at which the courts work,
    and the speed at which the software industry works, mean that any
    possible action would come far too late and take far too long. It is
    not good to introduce one layer of litigation through software
    patentability, and then try to fix it with another legal process.
    Better to allow companies to write software without the threat of
    legal action hanging over them, and let them respond quickly to market
    demand without waiting for courts to make decisions.

    * Options presented for changing the law

    On aims II and III, the report presents three options. I feel that
    these options are misleading and do not show the whole story.

    OPTION 1: The report tries to present the status quo as being that
    computer programs are patentable, and suggests that the `computer
    programs as such' exception be removed from the EPC. But this is not
    maintaining the status quo at all. The EPO has very cleverly managed
    to reinterpret the law to make an arbitrary and unclear distinction
    between `computer programs as such' and `computer programs not as
    such'. This happened very recently in the lifetime of the EPC; if it
    were really the intention of the EPC's authors, surely it would not
    take several decades for this new, enlightened interpretation to
    appear?

    Since the EPO's decision was not based on any economic criteria or any
    research of its effect on the software market, there is no reason to
    suppose that it represents any improvement on the previous, clear
    position that computer programs were not patentable.

    The criterion of `technical effect', which is supposed to distinguish
    between software as such and software not as such, does not have any
    clear meaning. Patents have been granted for purely abstract,
    mathematical algorithms such as data compression on the basis that
    this has a technical effect---the effect being that you might use such
    an algorithm to encode data travelling across a network, for example.
    But the same could be said of any algorithm to translate data from one
    format into another, so at a stroke all network protocols and file
    formats become patentable. Patents have been granted on user
    interfaces, so we can assume that any software whose purpose is user
    interaction is not software as such. So already all means of input
    and output are considered as having a technical effect; and for any
    other software patent application it is not difficult for a computer
    programmer to think up a possible technical effect which gets round
    the `software as such' exclusion. For example, the EPC rejected a
    patent application for a homophone checker on the grounds that it did
    not have a technical effect---but conceivably one could use such a
    program to get more efficient data compression, thus putting it into
    the ever-expanding category of software not as such.

    I'm sure you have seen the software patent `horror gallery' listing
    very broad patents granted by the EPO on setting prices in a Website
    (WO9615505), dynamically generating web pages from a database
    (EP0747840), printing ingredients required for a recipe (WO9529453)
    and many others. Apart from the serious implications for competition,
    these should be sufficient proof that the notion `technical effect' is
    in practice just used as an excuse to grant patents on as wide a range
    of programs as possible.

    It's hard to imagine the EPC ever ruling that something previously
    considered a technical effect is no longer to be counted as one---the
    border between patentable software and excluded software would move in
    one direction only. For these reasons, there is no real difference
    between Option 1 and Option 2.

    But there is an option left out:

    OPTION 0: Uphold the status quo as clearly defined by the EPC, making
    it clear that computer programs are not patentable, just as methods
    for playing games and methods for doing business are not patentable.
    This would not stifle competition and innovation in the software
    market; it would not expose small developers to legal threats; it
    would mean that companies can get on with writing software and not
    fighting court battles.

    I urge you to consider this option too, and to recognize that the
    EPO's fig-leaf of `technical effect' has no real meaning when applied
    to software.

    SECTION II

    Since I am not a lawyer, I will not write much on Section II, but I
    would like to say a few things about lawmaking:

    Firstly there is the obvious point that there is a fundamental
    difference between a physical invention or process, and something
    which is purely information such as a picture or computer program.
    Making a clear, legally enforceable distinction between the two has
    already been managed by copyright law, so there is no reason why
    patent law cannot do the same.

    But more importantly, the patent system exists only to serve economic
    interests. Any decision on what is patentable should be made on
    economic grounds and not by trying to carry across decisions made for
    a different area.

    So removing exemption of computer programs on the grounds of
    `technical effect' alone is not sensible, because having a technical
    effect and being economically justified are two unrelated criteria.
    What is worthwhile for other industries may not be worthwhile for
    software, and vice versa.

    Finally, on the question of whether software is `technology', I would
    like to point out that while marketing departments often refer to
    software as `technology', you will not usually hear a programmer use
    this term.

    SECTION III

    Section III has a mixture of pro- and anti-swpat viewpoints. But
    those which favour software patents, or at least suggest that the
    anticompetitive effects they cause would not be too great, tend to be
    founded on the assumption that `the system works properly'. So large
    numbers of bad patents are not being issued, companies cross-license
    on reasonable terms, antitrust laws work swiftly and effectively, and
    so on. But this idealized software patent world is not real. The
    software patents being granted by the EPO are frequently of very poor
    quality, just as bad as those in the US if not worse. And it only
    takes a single firm to start aggressively enforcing its software
    patents to cause serious trouble to every other firm which is not big
    enough to have its own defensive portfolio.

    The claim that `the existence of a patent system ... discourages
    business secrecy' may be true in other areas, but not for software.
    Many companies cannot disclose their source code, even if customers
    want it, for fear that this would allow others to trawl through it for
    possible infringements. On the other hand, the typical software
    patent will not disclose anything of value; either it is too broad and
    vague to give any details, or contains ideas which would occur to many
    programmers thinking about the same problem. (There are some software
    patents which contain descriptions of new algorithms, but in these
    cases the algorithm would have been disclosed anyway without a patent,
    if it is to become any sort of useful standard.) So software patents
    actually encourage business secrecy and discourage disclosure.

    GENERAL COMMENTS ON SOFTWARE PATENTABILITY

    The hard work of software development is usually not in thinking up an
    idea but in implementing that idea. This is particularly true given
    the obviousness of many of the ideas that the USPTO and EPO consider
    patentable, in some cases simply because they involve a computer. It
    is not like (for example) the drug industry where many years and lots
    of money must be expended to generate new patents. Rather, thinking
    up new ways to solve a problem is what a computer programmer does
    every day, and the same idea will almost certainly have occurred to
    many programmers in the past. The expense comes in implementing and
    testing code based on that idea.

    The work of implementation is already protected by copyright, which
    provides a good balance between incentives for development and a
    competitive marketplace. Software patents tip that balance too far
    towards monopoly, and in any case it's unlikely that the first company
    to file a patent actually `invented' the idea.

    But even if, in theory, it were possible for the patent office to
    examine all the millions of lines of program code currently in use and
    grant patents only on genuinely new algorithms, the price would still
    be too great. The software market is unlike most others in its strong
    requirement for compatibility; competing products need to read each
    others' file formats, for example. A patent on a file format, or on
    an algorithm used to encode that format, allows one company to block
    all competing products that might perform the same function as its
    own.

    Developers are expected to check every line of their code against
    thousands of existing patents. Consider that the USPTO has allowed
    the same algorithm (LZW compression) to be patented twice, by Unisys
    and by IBM. If even the patent office cannot check an application
    against previous patents, what hope is there for the developer
    checking a 500,000 line program? Copyright, on the other hand, does
    not have this problem; you have legal certainty that if you have not
    copied anyone else's work, you are not infringing. Copyright works
    well for computer software; patents do not.

    In short, the possibility of infringing on thousands of software
    patents is a serious burden for small companies, and patents on file
    formats (or on business methods, which could effectively be granted if
    the business method involves a computer) affect even large companies.
    The result is reduced choice in the market and less software available
    to the consumer. And patents on file formats mean total monopoly with
    no possibility of competing, compatible programs being written.

    The fact that American firms are stuck in this mess is not a reason to
    inflict it on European companies. I urge you to recommend that the
    existing wording of the EPC be upheld, so that computer programs
    (along with methods for playing games, doing business, and so on) are
    made explicitly not patentable.

    Also, any change to the EPC which allows the EPO to decide for itself
    on changes to the rules would be very unwise. The patent office is
    not equipped to make a proper economic analysis of changes to the
    system. Past experience has shown that the EPO would move the
    frontier of patentability in one direction only.
  • The following assumes they are going to allow software patnets (which is wrong...)

    If your patent office currently is rejecting software patents, then their database on prior art in the field should have no entries. When the 1st software patents comes in, they will need to check it against all other software patents and see if its unique. Since its 1st, it will be no matter how much prior art exists in the rest of the world, it will appear unique. Your patent office must have a seeding time (I would say 5 to 20 years or so) where any one can file a patent like application which protects their inventor's right to nonexclusive use and prevent future patents for the same thing. This is much like the "sunrise period" for domain names in new TLDs.
  • The reasons against software patents are pretty much the same reasons against patents on mathematics or scientific discovery or language/grammar (all of which currently are disallowed). A most basic case is one where that which is discovered is something that always existed and was not 'invented.' This would be the most "low level" of knowledge. The next level would perhaps be two or more pieces of basic knowledge combined for some purpose. For example, we know that friction produces heat, that sticks rubbed together have a high coefficient of friction, and that wood burns when it reaches a certain temperature. So perhaps a second level "idea" would be rubbing sticks together to make a fire. Still not an invention. Note: I believe this is the level at which most software patents exist--trivial discovery or the application of basic facts to accomplish a basic goal. For example, the mathematics of bandpass filtering and the fast fourier transform have existed for a long time. So has the physiological knowledge of how our ears work and the psychological knowledge of perceptual hearing. Put this body of past knowledge together in a formalized algorithm and you have MP3, which Frahnhofer has a software patent for. Bogus? I surely think so. Especially when alternative psycho-acoustic algorithms superior to theirs are available. Furthermore, you don't even need psycho-acoustic algorithms to decode MP3.. yet they still claim they have patent rights on decoders! If this is not a clear cut case of software patents inhibiting innovation, I don't know what is. LZH compression, another trivial (but patented) mathematical algorithm, is perhaps even more obvious.

    So what should be patentable? Consider first that patent law is only good if it is good for society as a whole. All ideas are ultimately composed of previous ideas--nothing is new under the sun. So to imply that anyone truly owns an idea is ludicrous. There is no way to absolutely prove an idea is truly original, either. Someone else may have had the same idea a hundred years ago and simply never expressed it, or perhaps wrote it down but never shared it. So to begin, we must realize that patents are an economic compromise, not "property" as some would have us believe. Patents allow the first person that implements a significant idea to be the sole player in the market for a limited time, so that there is an incentive to try new things and explore new ideas while recouping production costs. With the case of software, however, there are no manufacturered goods and no overhead costs. Anyone can write software. And software doesn't even need to be a commercial enterprise. Furthermore, no one idea used in software is truly significant. Software development is an evolutionary art and science. It requires small ideas, small advancements. Such progress is impossible if those small ideas can be patented and restricted from use by the general public and software developers worldwide. Where would computers be today if say.. the linked-list, quick sort, or memory register had been patented.

    Patent systems must ultimately weigh the economic incentives granted against the net result on society as a whole. Software patents fail this test consistently.
  • by BitGeek (19506) on Wednesday September 04, 2002 @07:05PM (#4197748) Homepage

    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 (Score:3, Insightful)

    by Tablizer (95088) on Wednesday September 04, 2002 @08:12PM (#4197948) Journal
    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.

  • by borgheron (172546) on Wednesday September 04, 2002 @08:17PM (#4197968) Homepage Journal
    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
  • To have trivial patents incurs a trivial patent gathering arms race where large technology firms waste resources protecting themselves from one another by accumulating trivial patents. For a government to prohibit trivial patents expends resources in arguing what patents are and are not trivial. Small firms can't amass much of an armory of trivial patents, so the innovation that comes from small firms is curtailed since a small firm's only defense is to avoid innovating in areas where they might be defenseless to an infringement claim. With software patents, your society pays, and the lawyers benefit.
  • by be-fan (61476) on Wednesday September 04, 2002 @09:27PM (#4198239)
    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.
    • Wouldn't it be terrible if Dijkstra had patented the semaphore? Computer science would have come to an end!

      And then presumably risen Lazarus-like a few years later, when the patent expired?

      Remember, a patent is a guarantee that the patented innovation will pass into the public domain on a specific date in the future, and a means of ensuring that the public has access to the ideas behind the patent immediately. In the absence of patents, people who had invented new algorithms would simply keep them secret, probably forever.

  • Although I understand you've chosen to not state your country for probably good purposes, I might have country specific material and/or links and/or people to connect you to. Just e-mail me (tord/dot/jansson/at/swipnet/dot/se) and I'll see what I can do.

    However, if you are from Sweden, Norway, Denmark or Finland and therefore have a good chance of understanding Swedish (or at least knowing somebody who does) you might find this link [bredband.net] interesting.

    It's the homepage of my webzine called "Patentnytt" where I provide abstracts of and links to articles and material that is useful for anyone working against patents on software.

    I have somewhat of a suspicion of who you are and that you already have mailed me though ;)

The biggest mistake you can make is to believe that you are working for someone else.

Working...