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Recipient of First Software Patent Defends Them

kdawson posted more than 4 years ago | from the semper-fi dept.

Patents 392

Arguendo writes "Martin Goetz, who obtained the first software patent in 1968, has penned a thoughtful defense of software patents for Patently-O. Goetz argues that there is no principled difference between software and hardware patents and that truly patentable software innovations require just as much ingenuity and advancement as any other kind of patentable subject matter. The Supreme Court is of course currently considering whether to change the scope of patentable subject matter in the Bilski case, which we've discussed before." Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

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392 comments

Patents aren't the problem (4, Insightful)

dintech (998802) | more than 4 years ago | (#30281246)

Patents by themselves weren't a problem back in 1968 and shouldn't be problems now either. The issue is how they are used as legal clubs to beat down competition with or simply as a way to make money through litigation alone.

Re:Patents aren't the problem (4, Insightful)

Tim C (15259) | more than 4 years ago | (#30281454)

Software is already protected by copyright, and should not be protected by patents. If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.

Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.

Re:Patents aren't the problem (5, Informative)

NickFortune (613926) | more than 4 years ago | (#30281506)

Indeed. I though TFA was very weak. His points were:

  1. If you can do it in electronics, you can do it in hardware: the electronics would be patentable
  2. Software patents can make a shitload of money for someone
  3. I think software patents are pretty neat!

Only the first point is anything resembling an argument, and that one we've heard a dozen times before.

If anyone wants a soild exploration of what should and should not be considered software, and why it ought not to be patentable, I'd recommend PoIR's An Explanation of Computation Theory for Lawyers" [groklaw.net] over on Groklaw. It's well-researched, well-argued, and informative.

Re:Patents aren't the problem (3, Informative)

Lundse (1036754) | more than 4 years ago | (#30281586)

Since we're exchanging links - if anyone wants to go really nuts over the matter of what knowledge can be owned and how, there's this philosophy thesis:
http://www.archive.org/details/OwnershipOfKnowledgeIsThereANaturalRightTointellectualProperty [archive.org]

Full disclosure: it's mine.

Re:Patents aren't the problem (1, Flamebait)

gnupun (752725) | more than 4 years ago | (#30281562)

If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.

Stop posting grossly incorrect statements about a field you know nothing about. Copyright does not protect against disassembly, or simply feeding various combinations of inputs to figure out the algorithm and clone it without violating copyright. Copyright can also be easily defeated using the clean-room process on the targeted software. There's nothing wrong with the patent system other than a few greedy idiots abusing it by publishing obvious patents, and you /.ers want it abolished for some naive socialist agenda where the inventors simply hand over their hard work for free to companies and general public.

Re:Patents aren't the problem (3, Informative)

Mr2001 (90979) | more than 4 years ago | (#30281732)

There's nothing wrong with the patent system other than a few greedy idiots abusing it by publishing obvious patents, and you /.ers want it abolished for some naive socialist agenda where the inventors simply hand over their hard work for free to companies and general public.

No one here is asking inventors to work for free, so you can lose that strawman.

By the way, you realize patents are government-enforced monopolies, right? Walling off sections of the free market through legal force? If you think opposing patents is "socialist", you don't know what the word means.

Re:Patents aren't the problem (1)

gnupun (752725) | more than 4 years ago | (#30281900)

No one here is asking inventors to work for free, so you can lose that strawman.

No patents mean anyone can copy the invention without paying the inventor, so I win that argument.

you realize patents are government-enforced monopolies, right?

That monopoly has been earned and the government is simply enforcing it. It's earned based on the fact the inventor has full rights to profit from the invention and others don't, at least not without permission. It doesn't have to be a monopoly, though. If anyone pays licensing fees to the company owning the invention, it can use the invention.

Walling off sections of the free market through legal force?

Lol, the walling off is to protect the weak (inventors) from abuse (copycat jackals, greedy companies and consumers).

If you think opposing patents is "socialist", you don't know what the word means.

Sure I do, in this case, it's taking valuable things from the productive people and distributing it to the undeserving -- some kind of forced, involuntary charity.

Re:Patents aren't the problem (2, Interesting)

mdwh2 (535323) | more than 4 years ago | (#30282224)

No patents mean anyone can copy the invention without paying the inventor, so I win that argument.

Not with software they can't, that's protected by copyright.

Is someone who comes up with an algorithm an "inventor"? Algorithms are a subset of mathematics - where do we draw the line? Are mathematicians "inventors"? Perhaps mathematics should be locked up in patents too - after all, surely mathematicians deserve to be paid? According to you, they couldn't possibly earn a living any other way?

(And the idea that not having patents is "socialist" is absurd.)

Re:Patents aren't the problem (1)

zach_the_lizard (1317619) | more than 4 years ago | (#30282248)

Sure I do, in this case, it's taking valuable things from the productive people and distributing it to the undeserving -- some kind of forced, involuntary charity.

You have a differing understanding of the common definition of involuntary and forced. No one has taken a gun to the head of the inventor and said, "You must give away your invention for free." On the contrary, they have demanded that the inventor stop using the guns of the government to enforce his "earned" monopoly. To enforce the IP version of property rights requires the violation of the regular property rights of all others.

Re:Patents aren't the problem (2, Insightful)

suso (153703) | more than 4 years ago | (#30281836)

Why was the parent comment marked down as troll when it is absolutely right? Copyright isn't the same as a patent. What he goes on to say is debatable, but it certainly isn't far from reality.

Re:Patents aren't the problem (0)

Anonymous Coward | more than 4 years ago | (#30281890)

Copyright does not protect against disassembly, or simply feeding various combinations of inputs to figure out the algorithm and clone it without violating copyright.
GP did not claim that it does. It allows other implementations of the same thing (which patents are meant to allow anyway).

Black and white boxes (2, Interesting)

TapeCutter (624760) | more than 4 years ago | (#30282084)

Constructing a transform table from input/output observations will tell you what the black box does but it will not tell you how it does it. For example let's pretend I am a genius and I have figured out an analytical solution to the three body problem. You observe my black box and create a transform table. However without my insight you are still left scratching your head as to how the black box can perform the transformation so rapidly and accurately when the only known way to approximate a solution is via numerical analysis.

Clean room is a black box by another name. Again by definition you cannot know how the black box performs it's task (the algorithim). Sure you could guess the right answer but if it's that's obvious then why would it be patentable?

I certainly don't want people to give away their "hard work" and throwing out copyright would also throw out the GPL that my comrades here at socilistdot are so fond of. However if the algorithim/invention is so obvious that it can be guessed by observing a black box then I would argue the inventor has not "worked" hard enough to earn a state sponsered monopoly on the idea.

Dissasembly is of course a white box that allows you to copy the algorithim without necassarily understanding it. This may or may not come under the perview of copyright or trade secrets but I will leave that argument to someone with a better understanding of law.

"Stop posting grossly incorrect statements about a field you know nothing about." - Have you checked your arse for bite marks?

Re:Black and white boxes (1)

gnupun (752725) | more than 4 years ago | (#30282204)

Clean room is a black box by another name.

Wrong, clean room with disassembly is white or gray box.

Re:Patents aren't the problem (1)

selven (1556643) | more than 4 years ago | (#30281654)

In reality, cloning someone else's invention costs about two thirds as much as making it yourself. There's some types of knowledge that simply can't be pirated, like the engineers' experience with the invention that they themselves created.

Re:Patents aren't the problem (3, Insightful)

Mr2001 (90979) | more than 4 years ago | (#30281686)

Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.

An invention that can easily be examined and cloned doesn't need patent protection.

The term "patent" comes from the use of the word that means "apparent to everyone", as in "patently obvious". Patents further the useful arts not by enticing people to invent new things (when there's a problem that needs solving, people will solve it anyway), but by enticing inventors to share their knowledge: before patents, inventors were reluctant to share details of their inventions because they feared competition, so patents grant a temporary monopoly in exchange for disclosing those details.

This rationale for patents rarely applies to software. A program has to be executable, and if a CPU can figure out how to make it work, so can a person. Even intentionally obfuscated software can be understood with moderate effort (see any warez site).

Re:Patents aren't the problem (1)

zoomshorts (137587) | more than 4 years ago | (#30281880)

"and if a CPU can figure out how to make it work", I think you are
putting the cart before the horse here. CPU's do not "figure it out",
programmers tell the CPU how to do it. Epic Fail in my eyes.

Re:Patents aren't the problem (1)

DustyShadow (691635) | more than 4 years ago | (#30282086)

An invention that can easily be examined and cloned doesn't need patent protection.

Did you mean to say "that can't easily be cloned"?

Re:Patents aren't the problem (1, Informative)

Anonymous Coward | more than 4 years ago | (#30282208)

An invention that can easily be examined and cloned doesn't need patent protection.

Did you mean to say "that can't easily be cloned"?

No. He meant to say something more like "The benefits that patent law seeks to achieve are not relevant in the case of an invention that can easily be examined and cloned anyway". As he said, the purpose of patent law iwas originally to encourage disclosure of how the inventions work. So if anyone could tell how it worked anyway then no patent should be given. However, what he's missing is that the purpose of laws evolve over time. The purpose of patent laws today is primarily to protect the flow of money to certain entrenched interests. In serving that purpose, it makes a lot of sense to grant patents even when someone can trivially tell how the invention works anyway.

Re:Patents aren't the problem (1)

Grygus (1143095) | more than 4 years ago | (#30282310)

I don't follow you. Your scenario sounds good for the few groundbreaking inventions out there, we get to see what he did and he gets to profit from it for a while, but what would the impetus be to develop innovations on existing inventions? Like the GP stated, the current patent system gives you a chance to recoup the cost of development before everyone swipes your "obvious" idea and puts it out at the same price, only without the pesky overhead of having actually thought of it themselves. A lot of things will seem obvious once I do all the engineering and testing and release the product, so why should I do that if my only guarantee is that you will follow my blueprint and profit off my work - not in addition to, but instead of, me?

Re:Patents aren't the problem (1, Interesting)

Miamicanes (730264) | more than 4 years ago | (#30282026)

> Software is already protected by copyright, and should not be protected by patents.

Right now, it's kind of like "pick your poison". The problem isn't so much patents *per se*, as the way they've been granted (ie, the ongoing clusterfuck caused by the Clinton-era USPTO during the dotcom boom, whose attitude was "grant 'em all, let the courts sort it out"), the fact that they can't be proactively challenged (you can only wait to be sued for infringement, and if the patent's owner drops the case at the last moment, they can do the same thing to the next victim), and the fact that "one size/duration doesn't fit all scenarios" -- two decades is barely enough time for truly groundbreaking new drugs, but is gross overkill in most software scenarios.

Pointing towards copyright law isn't necessarily an improvement. At least patents eventually expire. Thanks to Disney, copyright is effectively *eternal*. Do we *really* want software techniques to be legally protected *forever*?

Pushing software harder and harder into the "copyright" camp is, IMHO, a dangerous strategy, because it ultimately leads those copyright owners to try and expand the scope of what that copyright protects. Patent trolls are bad, but copyright trolls have the potential to be much, much more destructive in the long run.

Re:Patents aren't the problem (3, Insightful)

Lord Bitman (95493) | more than 4 years ago | (#30282028)

You can patent a new type of hammer.
If you draw a diagram of the hammer, that diagram is covered by copyright.
You can use that diagram in a patent application, in which case the diagram cannot be covered under copyright.
If you draw another diagram of the same type of hammer, that new diagram is covered by copyright.
The hammer itself, that is, the physical thing that is a hammer, can neither be patented or copyrighted.

The same logic should apply to software:
  - You can patent a new type of software algorithm.
  - If you write source code implementing that algorithm, that source code is covered by copyright
  - You can use that source code in a patent application, in which case the source code cannot be covered under copyright.
  - If you write a new implementation of the same algorithm, that new source code is covered by copyright.
  - The executable itself, that is, the black-box which tells you at most as little of the implementation details as a hammer would compared to a diagram of the hammer, can neither be patented or copyrighted.

Re:Patents aren't the problem (1)

PMuse (320639) | more than 4 years ago | (#30282040)

"Software is already [badly] protected by copyright, . . . If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people [except by being rewritten entirely in a clean-room]."

Copyright has serious failings when it comes to software. First, copyright automatically locks up all software forever (or, forever 20 years at a time) unless the author specifically gives a license. Second, a clean-room reimplementation of the functional elements can circumvent the protection copyright provides. Thus, copyright is both over-protective and under-protective.

By contrast, patents are only applied for on the valuable aspects of a software invention (due to cost and scope-of-claims), they provide absolute protection, and they expire. The vast majority of all new software will never get patented. Plus, imagine having every piece of code written before 1989 be 100% in the public domain today.

The one area in which copyright is easier to navigate than patent is that, under copyright only, if you write all your code yourself, then you know it doesn't infringe. If you are going to choose copyright instead of patent protection for software, then choose it for that reason.

Re:Patents aren't the problem (4, Informative)

Bazar (778572) | more than 4 years ago | (#30282242)

If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.

Wow, how did that get marked up. I'm really starting to wonder about the moderation system.

There are so many examples in real life that contradict that.
Lets start off with the bios chip in computers. That was copyrighted.
They got around it simply by having 2 teams
Team A disected the chip, and wrote the specs of what it did, and how it operated.
Team B took the specs and had nothing else to do with team A, and using only those specs made a new bios chip that matched the specifications written.

The courts decided that copywright didn't come into play, because they didn't copy the chip. (They indeed made their own version)
If it was patented it would of been a different matter.

Theres also the matter of the magic key that allowed decoding of HD-DVDs. I don't believe copyright is able to do anything about that (Although the DMCA might say otherwise, i'm unsure since its DRM and DMCA changes the game with DRM)

You could also try talking to apple, about how their court case vs microsoft went when MS copied how apple looked.
http://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Microsoft_Corporation [wikipedia.org]

I could go on, but in short you can't copywright the look and feel of software either.

So if the detailed innerworkings (or algorithms) aren't protected by copywright, and if the look and feel isn't protected either. What does copywright stop.
It stops outright ripoffs and direct copies, but it doesn't stop other companies producing compeating products.

Patents however do stop compeating products. (A little too effectivly some would argue)
If the bios chip was patented, it would of been illegal.
If it wasn't for the fact that the GUI had already been proven and demostrated by xerox before being handed over to apple. Apple could of patented the "look and feel".

So back to the orginal point.
Copywright Law protects you against people copying your software. It isn't very effective against people that DEVELOP compeating products. Patents are.

You can hate or love what patents are, but don't be confused about the differance. To discard what patents because [software] copywrite exists, defeats the purpose of patents themselves.
Reform is needed for both, but not an abolishment.

Re:Patents aren't the problem (5, Insightful)

wrook (134116) | more than 4 years ago | (#30281524)

I'm going to have to disagree with this.

Software patents were a problem then and are still a problem now. Patents have always been a trade off. At one time everyone making inventions hid their work through secrecy and obfuscation. This is clearly their right and in order to protect the upfront investment in research and development it was necessary. Otherwise someone could use the information that other people had developed in order to create a product without the upfront investment. They could then undercut the initial inventor.

The result of secrecy and obfuscation was that society couldn't build on top of new ideas. Progress could stall because only a few people knew how something worked. So a limited monopoly was granted to inventors in exchange for full explanations of their inventions. It was hoped that this monopoly would allow others to build on previous inventions and accelerate progress.

This is fine when we are talking about real physical machines. We aren't giving monopolies on ideas, rather their expression in physical form. In the world of physics, only certain things work for a given problem. For example with velcro the hooks have to be at a certain angle and the loops have to be at a certain density. Nobody can patent the idea of a hook or a loop. But a specific physical arrangement of hooks and loops with a specific application is patentable.

The problem with software is that it isn't constrained by physics. For any given problem there are many expressions that can work. Software *isn't real*. If my hooks and loops don't match up I can change the laws of physics to make them match. The work in developing software is *not* trying to discover the angle with which a hook must be made, but rather the sheer volume of describing the hook.

Because people misunderstand the purpose of a patent, they believe that patents exist to protect the upfront investment of development. In this case, if it takes a year worth of work to type in the description of my hook, that hook must be worthy of protection. It is, after all, a considerable upfront cost in my act of invention. But the *specific description* of the hook (i.e., the source code) is not what they want to patent. After all, they already obfuscate it and have a copyright for it. It is amply protected. What they want to patent is the idea of a hook for a given application. *All* descriptions of hooks for that application are now forbidden.

Now we could argue that some techniques are difficult to develop. This is true. But on a computer, all techniques are mathematical algorithms. These are not, and never were patentable. If we accept the argument that a computer program is a "software machine", then the patentable part must be the description of the algorithm in the computer. But this is already obfuscated, secret and protected by copyright. They wish a higher level protection on the concept itself. This is a problem because it has never been patentable (if you wish a reason, I direct you to read the original arguments given when instating the patent system).

Not only are software patents a problem, their very nature is what is causing "bad patents" and "money through litigation" schemes. Any software patent must, by necessity, by overly broad and provide an opportunity for abuse. Not only should software patents be disallowed, but also "hardware" patents that can be fully implemented in software. To do otherwise is to fly fully in the face of the original intent of patents.

Re:Patents aren't the problem (1)

Smegly (1607157) | more than 4 years ago | (#30282004)

Hook analogy? What happened to wheels, or chassis even... no wonder nobody gets why software patents are anti-progress (as they were intended to be).
Apart from that, great post!

Re:Patents aren't the problem (1)

misfit815 (875442) | more than 4 years ago | (#30282052)

I was gonna say the same thing... just in fewer words. And shorter words. With some more grammatical mistakes. So... um... yeah.

Re:Patents aren't the problem (1)

StripedCow (776465) | more than 4 years ago | (#30282210)

...in exchange for full explanations of their inventions.

That would be nice, but most patents are unreadable, and would not pass any serious scientific review!

Re:Patents aren't the problem (1)

rattaroaz (1491445) | more than 4 years ago | (#30282260)

I would also add that this concept of secrecy has not been solved by software patents, but rather has become worse. Code is secret. Patents are so numerous and vague, that they are essentially secret. Like finding a needle in a haystack. Right in front of you, but obscured by a lot of crap. I would argue that byears ago, knowledge was not easily disseminated, and harder to share, so inventions had more value in preservation and documentation. Now, given the spread of knowledge, many people are constantly independently invent the same thing. The value of documenting and preserving inventions is just no longer there, because if the inventor doesn't document and describe it, you better believe many other shlubs on the internet will. And if that inventor didn't think of the idea, you better believe 50 other people already wrote about the same thing. If you want to make a law to save a business model, then fine. Go patents! Copyrights should be forever in that case too. But if you are looking to benefit society, I just don't see the purpose of patents any more.

Re:Patents aren't the problem (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30281604)

They were always used to beat down competition, in fact that's the whole reason behind patents (to publish the invention and to give the inventor the means to exploit it commercially in a "safe" way). Thing is, development goes faster and faster, and everything which hinders this will sooner or later become obsolete(d).

Re:Patents aren't the problem (5, Insightful)

vtcodger (957785) | more than 4 years ago | (#30281796)

***Patents by themselves weren't a problem back in 1968***

A common belief. But probably wrong. Patents are, and always have been, a dubious idea. I don't have time to write a real essay. But just one example. In the early 20th Century, many of the basic patents on aircraft technology were held, naturally enough, by the Wright brothers. However, a lot of the early aircraft were built by Glenn Curtiss who was unable to get a licensing agreement from the Wrights. Curtiss built his planes anyway using (and patenting) alternate technology where he could. The ensuing lawsuits dragged on and on, draining the resources of both parties and crippling the development of aircraft in the US because no one was interested in building aircraft until they knew who they had to pay for the privilege.

http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war [wikipedia.org]

By the time World War I started, the US was years behind the Europeans in aircraft design. Congress eventually solved the problem by enacting compulsory licensing at a fixed royalty.

How, exactly, did this mess -- which was far from unique -- benefit anyone?

Of course, things are far worse today. The average patent is (deliberately as far as I can see) unintelligible, the claims absurd, prior art is ignored, stuff that is obvious to practicioners is patented, natural laws are patented, etc, etc, etc.

IMHO, the patent system is broken. Badly broken. We would be well advised to carefully -- very carefully -- scrap the thing. Software patents would be a terrific place to start.

Re:Patents aren't the problem (2, Insightful)

BuR4N (512430) | more than 4 years ago | (#30281838)

It sure is a doubled edged sword, but there is allot of success stories also, patents is a mechanism to keep competition "fair".

Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions, I write even because just having a patent today do not mean that your immune against this behavior.

Re:Patents aren't the problem (1)

mdwh2 (535323) | more than 4 years ago | (#30282292)

Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions

The flip side is that it's already easy for this to happen now - because the small company is likely already infringing on numerous patents owned by other companies, that they perhaps weren't even aware of.

And what do you mean by "prey"? Currently, the "prey" means that the smaller company risks being shut down, unable to even sell their product, or liable for large patent costs. Without patents, the worst "preying" that I can think of is that the larger company outsells them in the free market, by providing a better product. Which do you think is better for the world?

Re:Patents aren't the problem (0)

Anonymous Coward | more than 4 years ago | (#30282016)

I think a workable solution is to get rid of software patents and let copyright handle the software problem, as others have noted.
As a secondary action, completely eliminate business method patents as their entire existence is dubious at best.

My primary reasons:
1) Software and business method patents just aren't working as intended. They do not increase innovation in my opinion - partially due to abusive patent litigation and the rest due to the following:
2) The government does not have the capability to adequately judge when a patent is justified in these situations. As many examples have proven there have been repeated violations of non-obviousness and existence of prior art.
3) Even if the government were capable, the software ecosystem and life cycle is much more diverse than hardware, and while Goetz makes some relevant points about the similarities, there are still far too many differences to treat the areas equally.

truly patentable software innovations... (5, Insightful)

fatp (1171151) | more than 4 years ago | (#30281248)

The major problem is that most software patents were not awarded to truly patentable software innovations

Re:truly patentable software innovations... (1)

ranulf (182665) | more than 4 years ago | (#30281704)

Absolutely. Things like RSA encryption are good examples of patents. Things like the XOR patent are bad examples when they are so trivial that anybody could come up with the same.

The main problem is that patents aren't used to protect investment, they're used to stifle the competition.

Re:truly patentable software innovations... (1)

Nerdfest (867930) | more than 4 years ago | (#30281728)

How about this test. Get 50 (and admittedly arbitrary, but probably affordable by the patent office) developers in the same field as the patent applicant and ask them how they'd solve the problem. If one of them comes up with the same solution, no patent for you. Beyond that, follow the normal approval process to cover the possibility that we have the wrong 50 developers, or that they're all having a 'stupid day' ... not that that ever happens to me.

I'd like to know (2, Insightful)

Lord Lode (1290856) | more than 4 years ago | (#30281252)

I'd like to know this guys opinion on straightforward software patents like "the hyperlink", the virtual "shopping cart", ..., and "patent holding" companies.

That's "guy's" (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30281478)

What's happening to the world. So many illiterate people around these days.

Re:That's "guy's" (0)

Anonymous Coward | more than 4 years ago | (#30281918)

When you refer to 'illiterate people', do you include people who can't form complete sentences?

Re:That's "guy's" (0)

Anonymous Coward | more than 4 years ago | (#30282060)

Too much social networking, very little reading of real books.

Re:I'd like to know (1)

flaptrap (1038180) | more than 4 years ago | (#30281556)

The one - is obvious after you see it - but it's patentable. The next is trivial to any programmer - an array - but labeled with an analogy that gets copied. The third is not a device; you can't see it or determine how it works. Or do you mean, if I may digress...the shopping cart is so inappropriate because is is a catalog order - but an indicia of patentability is if, once invented it is imitated. Now, imitation is the sincerest form of television, and that is what you have there. What you also need for patentability is a device and a description, a patent application, that tells enough for a practitioner in the art to make the device and make it perform as claimed. So what about these software patents combined with layers of digital secrecy that the owner wants to have you jailed for decrypting and decompiling? Just as with the patent holding company, greed manipulating the system and making everyone's life worse.

Next might come a device for automatically buying patents, or clandestinely spying a la the RIAA to see who is downloading them so they can be sued.

Re:I'd like to know (1)

selven (1556643) | more than 4 years ago | (#30281666)

Really? The virtual equivalent of a sign saying "Subway station 500 meters that way" is patentable?

Re:I'd like to know (0)

Anonymous Coward | more than 4 years ago | (#30281854)

These are examples not of software patents, but rather of business processes. Business processes should clearly not be patentable and actually are not in the EU.

ingenuity doesn't matter (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30281258)

We all know that software patents do not help the advancement of useful arts. Period.

Sure (2, Funny)

Anonymous Coward | more than 4 years ago | (#30281278)

patents protect the little guy who can't afford lawyers from big corporations.

I agree with him - there's no difference (4, Funny)

Rogerborg (306625) | more than 4 years ago | (#30281330)

I think that software patents are every bit as valid and valuable as every single patent on the wheel [google.com].

Re:I agree with him - there's no difference (1)

Zero__Kelvin (151819) | more than 4 years ago | (#30281432)

You are right, but I'm not sure if people will get your point or even if you understand your own point. There is no problem with software patents per se. The problem is that the people deciding if a patent will get approved or not don't seem to understand software well enough to make the decisions. They don't have the background, or ability and/or time to do the reasearch, so we end up with "one click" patents, which are essentially the digital equivalent of patents on the wheel.

As your link to the Google search shows, this problem isn't limited to the software domain. There is a difference between patent reform and abolishing patents all together. The argument for the former is self-evident. The argument for the latter is that reform cannot be accomplished and that the only solution is to scrap the whole mess.

Personally I am too busy designing things that are, and should be patented, to become educated enough on the matter to form a conclusion. I might make the time, but since whatever is going to happen is unlikely to change due to my influence, I prefer to work on problems I can solve. YMMV. (Note that the Y in YMMV is used in the collective here.)

Re:I agree with him - there's no difference (2, Interesting)

Znork (31774) | more than 4 years ago | (#30281550)

There is no problem with software patents per se.

There are always problems with patents per se, as they sub-optimize the free market. Some industry areas are just exposed to more damage; the shorter the development cycle and the more highly multi-functional/combinatory the segment is, the more problems you'll get as inventions that happen to incorporate something patented, or would combine some patented things become basically impossible to make, potentially slowing down development in some areas by decades.

But economic damage is inherent in the patent system no matter what field. Protection from competition will always mean loss of efficiency and things become oh-so-expensive (which itself causes cries for more protection).

Meaningful reform cannot be accomplished as long as the monopoly right is kept. If you want to combine patents with a free market economy, the only way to do that would be to change the function so they only mean you automatically get a payment when someone uses the invention in question, but the use remains free. As the money either way gets extracted from the economy, it's no different from any other tax, so financing would be mostly up to whatever wouldn't be excessively counter-productive. With the difference that an actual tax and budget would actually be possible to account for and control, and a budget would make all the parties in the patent system interested in having the 'right' patents because 'more' patents would mean they'd pay out less.

Re:I agree with him - there's no difference (1)

Rogerborg (306625) | more than 4 years ago | (#30281564)

It turns out that I did understand my own point, but, hey, thanks for taking time out from your busy designing schedule to belabour it to death. Appreciate that, homie.

The priniple difference... (2, Interesting)

Manip (656104) | more than 4 years ago | (#30281334)

The big principle difference is that in the physical world we can discover new things and invent better ways to do existing things. I am yet to see a single software patent that I feel is really a new invention that requires protection. If someone can link me a software patent that they feel was a new invention and that others might benefit from then by all means, I am happy to be proved wrong...

Re:The priniple difference... (1)

StripedCow (776465) | more than 4 years ago | (#30281424)

If someone can link me a software patent that they feel was a new invention and that others might benefit from then by all means, I am happy to be proved wrong...

The problem is that a lot of software patents you hear about are of the silly kind (e.g. hyperlinks, one-click shopping, user-interfaces etc.)
To give a better example, consider this [freepatentsonline.com] patent, which covers a method of computing
fluid flow. There are many other patents like this one.

Re:The priniple difference... (1)

ocularsinister (774024) | more than 4 years ago | (#30281606)

But isn't that effectively patenting a mathematical technique? Where would we be if Taylor had patented his infamous infinite series, for example? I don't really see the difference between this and a Taylor expansion in fact, but maybe I'm missing something?

Re:The priniple difference... (1)

StripedCow (776465) | more than 4 years ago | (#30281980)

Well, software IS mathematics, and in the end I think you could also make a case that physics IS mathematics. To illustrate how subjective these matters are, consider copyright law. Every musical composition can be saved in a .wav file, and the bits in that file can be regarded as a (huge) number. Of course, nobody is going to be able to claim that, because you can write a song as number, which belongs to the domain of mathematics, you can just do away with copyright law.

The real issue is where you draw the line between something that is ingenious and something which everybody could have come up with.

Re:The priniple difference... (0)

Anonymous Coward | more than 4 years ago | (#30282126)

Sure, but you can only copyright a song, not patent it as far as I know...

Re:The priniple difference... (0)

Anonymous Coward | more than 4 years ago | (#30282022)

LZW

Re:The priniple difference... (0)

Anonymous Coward | more than 4 years ago | (#30282266)

US Patent 6467086 - Aspect-oriented programming (http://www.patentstorm.us/patents/6467086.html)

Would you come up with AOP on your own, discussing over a cup of coffee with your buddies?

Nope... sorry (0, Flamebait)

TheVelvetFlamebait (986083) | more than 4 years ago | (#30281362)

Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

Uh, nope... sorry. Phrasing this as a question doesn't even give the appearance of a NPOV.

Summary... (1)

florescent_beige (608235) | more than 4 years ago | (#30281384)

Software is sometimes conceptualized as a machine, and machines are patentable, therefore software should be too.

Software can be implemented in hardware, which makes it patentable even when it's not implemented in hardware.

The following terms are common to both software and hardware manufacturers:

research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, re-packaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models

and therefore the products of software companies should be patentable just like the products of hardware companies.

Respectfully to Mr. Goetz, my reaction to his points is "So?". Analogies are aids to thought, not legal arguments.

Re:Summary... (1)

Lundse (1036754) | more than 4 years ago | (#30281612)

Also, his argument fails, since anything which can be formalized - and that's quite a lot - can be made into software, which can be made into a machine. According to his argument, all inventions in mathematics, logic, most physics and god knows what else should be patentable.

Does this: http://goldfish.ikaruga.co.uk/andnor.html [ikaruga.co.uk] mean the idea of a conjunction (all uses of "and") is patentable?

Wrong comparison (1)

BountyX (1227176) | more than 4 years ago | (#30281410)

Goetz argument falls short for the following reasons:

1. He assumes that hardware patents are not as controversial as software patents and makes an appeal to equality. Who said hardware patents are off the hook?

2. He claims that the ingenuity required to make hardware or software patents is the same. This is slightly different than a regular appeal to equality in my first observation in that the focus of the ingenuity, according to him, is the creation of the patent; however, patents were designed to secure investments made toward new inventions by granting an exclusive license. Implementing a software patent is considerably much cheaper than most hardware patents (no manufacturing, hardware typically requires software too, shipping, etc). Since the investment towards a hardware based invention may be significantly higher, a patent makes sense. Many software; however, can be implemented at very minimal costs and therefore SHOULD expect very limited ROI or none (no patents). The focus of comparison is on the inventor's investment, not on the innovation. Patents are for large investments that need ROI to recover losses from the invention.

With that in mind add increasingly cheaper tools, a wealth of free information, enormous marketing capability and open source to the software equation and you quickly begin to see why software patents do not make sense. The patent process cannot even keep pace with the implementation of most software because of the low investment and rapid market deployment.

As technology becomes more accessible and cheaper, the cost of investment for new creations will decrease, hence the patents length (its mechanism for delivering ROI) should ALSO be reduced. With software, think approaching zero (in cost -- hypothetically). Without adding a market implementation clause and ROI cap based on actual provable investment, Software Patents do not fit our patent structure.

Re:Wrong comparison (1)

gnupun (752725) | more than 4 years ago | (#30281682)

Many software; however, can be implemented at very minimal costs and therefore SHOULD expect very limited ROI or none (no patents). The focus of comparison is on the inventor's investment, not on the innovation. Patents are for large investments that need ROI to recover losses from the invention.

Expect limited ROI from who -- the people? This is socialist/commie nonsense. People like you are as greedy as the patent trolls and demand everything for $0. Well, you can't have that price without slavery of some kind.

In the capitalist world, the cost of production has only a small relationship to the selling price. Your shortsighted comment does not address the case where a truly innovative product is easy to implement. Just because it is easy to manufacture does not make it less valuable. The price of any product has been, and should continue to be based upon supply and demand.

Re:Wrong comparison (1)

AvitarX (172628) | more than 4 years ago | (#30281966)

Agreed.

Which is the problem with patents, they cripple supply to skew the pricing. It is there very purpose in fact.

Damn it... (0)

Anonymous Coward | more than 4 years ago | (#30281416)

As if life wasn't already complicated enough. Now I have to add "patents" to my list that already includes...

1. Eat
2. Sleep
3. Fuck
4. Work
(5) ..."Patents"

Ah well, I may have to remove "work" from the list so I can have more time.

Het gets it right and wrong at the same time (2, Interesting)

Halo1 (136547) | more than 4 years ago | (#30281420)

The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility.

That's absolutely correct. And the reason that people choose software when they can get away with it, is because it generally much cheaper, faster to implement and more flexible. Which in turn results in completely economic effects of patent claims that include software implementations compared to claims that only cover hardware implementations.

The whole argument about software companies also performing state-of-the-art R&D should be irrelevant from a patents-point-of-view. Patents are not a natural right (they're not awarded because someone deserves them for whatever reason), but they are purely economic tools. And blunt and wide-reaching ones at that. Applying blunt and wide-reaching tools without discrimination just because some things are alike in terms of intellectual achievement does not necessarily have the same economic effects. Again: patents are not rewards, they're tools, to be applied with care where it makes macro-economic sense, not to protect certain business models at the cost of a huge overhead for an entire sector of industry.

And according to various economic studies [ffii.org] (also includes citations from some political documents, feel free to ignore those), patents indeed don't have overall positive effects on in the software field. In fact, the 2003 report on innovation from the FTC [ftc.gov] came to the conclusion that patents are not very important to innovation in the semiconductor industry either (although slightly more so than in case of software, and their downsides are slightly less detrimental in that case). So the whole comparison with hardware and software does not necessarily lead to the conclusion that the author of the article envisions...

The idea of patents is outdated. (0)

Anonymous Coward | more than 4 years ago | (#30281422)

Patents themselves were created to increase competition.

Nowadays, with our global marketplace, if your brilliant idea is already patented, just go to a country where it isn't.

If you do get a patent, someone in a country where it doesn't apply would gladly make millions for you.

Software patents are ludicrous. Not only can someone copy an idea somewhere else, they can let your neighbor download it before you can even run next door to slap their wrist.

He may well deserve a patent or two (1)

SamuelRobinson (323138) | more than 4 years ago | (#30281448)

It's my opinion that most of the software patents that I've seen fail the obviousness test for someone who is qualified to be an expert witness. Most of the software patents that bother me are things like one-click or hyperlinks. There may have been a point in time where some part of their functionality was patentable, but generally they are obvious extensions of prior art. You see this frequently in hardware as well.

The development methodology as mentioned by the OP doesn't change the presence or absence of the vision and insight that something that is patentable should require. Its important not to confuse the what with the how when considering this. It is a pity that for the most part software patents were awarded by people who didn't know the industry well enough to know which of the ideas they were seeing were obvious extensions of prior art. More importantly, the practice of patenting demonstrated but undefended prior art has hurt us all by requiring patents for things that should have been in the public domain in the first place. I sometimes wonder what would have happened if it had been possible to patent movable type or a method of translating human understantable instructions into commands to control the operation of machinery.

As a further red herring I should mention that the use of patents in general doesn't work well against most entities that you would most want to be defended from. A large number of players are using the slowness of the legal response to make their money and then vanish. It works against large corporations and other entities that are stuck at a fixed address which is why they tend to try to gather as much IP as possible related to their business in self defense.

This is an old argument going back at least a century. One line statements of position certainly don't adequately express an appreciation of the complexity of the issues.

Inventions, not ideas (0)

Anonymous Coward | more than 4 years ago | (#30281452)

The problem isn't necessarily _software patents_ as they are filed today.

The REAL problem is that so many of the current patents being filed are such crap, software or not.

Patents are supposed to cover INVENTIONS. Lots and lots of patents today cover IDEAS. Small, incremental and for a person skilled in the field, obvious, solutions to everyday problems that occur during product development in that area.

"But solutions always seem obvious in hindsight", you may say. Sure, some do. But real inventions are still clever. Most patented crap today isn't.

Let's patent math? (0)

Anonymous Coward | more than 4 years ago | (#30281460)

How was the LZW [wikipedia.org] compression patent different from patenting any other mathematical algorithm?

So, by his argument, if calculus were invented today, it could and should be patented because it "require[s] just as much ingenuity and advancement as any other kind of patentable subject matter"? I'm sure Zombie Newton would be pleased with the royalties, but I can't see how making such things patentable would be beneficial to anyone else.

In theory, there is no difference (1)

Nicolas MONNET (4727) | more than 4 years ago | (#30281462)

In practice, there is a world of difference.

When you develop a drug or a new car engine, you have to invest hundred of millions of dollars. Spending a few millions on patent lawyering is nothing.

I can spend a few weeks developing a program in my spare time for an investment of zero (0) dollars, and be infringing on some stupid patent without knowing it. I don't have a few millions laying around to pay some scumbag in a suit.

And that's just one of many arguments against software patents. But that's the main one from a social contract point of view. You can't make laws that people can infringe without knowing it. Lawyers might love them for all the business it brings them, but it's just fundamentally wrong.

Re:In theory, there is no difference (1)

Lundse (1036754) | more than 4 years ago | (#30282206)

In practice, there is a world of difference.

When you develop a drug or a new car engine, you have to invest hundred of millions of dollars. Spending a few millions on patent lawyering is nothing.

Good point! And there is no infinite subset of possibly viable car engines which your patent necessarily also covers, and precludes others from inventing.

You can't make laws that people can infringe without knowing it. Lawyers might love them for all the business it brings them, but it's just fundamentally wrong.

Good point! Though you can make such laws, they just have a huge cooling effect on invention as a natural consequence.

(I'd mod you up, if I hadn't entered the debate already).

Book or Machine? (0)

Anonymous Coward | more than 4 years ago | (#30281476)

Arrrg, I've just been goetzied! If you have a team of writers working on the mechanics of a plot for a weekly show, does that make it a machine? During the devolpment of a script or novel, it's reviewed, edited and checked for continuity. As a software author myself, I find Mr Goetz views on the subject fascinating and would like to subscribe to his newsletter.

Patents make us weak. (1)

starbugs (1670420) | more than 4 years ago | (#30281516)

100 Years ago: Patents give us an incentive to innovate. If you copy, then you will loose.

Today: Patents increasingly used to stifle innovation. Nowhere is it more apparent than in software. You can write something new, only to find out that mr.big_company has a broad patent that makes your idea theirs.

Future: New ideas in software are gridlocked because of over-reaching patents, and we find that places without a history of innovation have leap-frogged us because the developers there write code without a fear of being sued.

If we want to remain leaders in innovation, we have to release the chokehold on our own necks.

Patents worked when we were competing with ourselves. That's not the case anymore.

the missing pieces of the metaphor (0)

Anonymous Coward | more than 4 years ago | (#30281526)

One of the major differences that could define this debate is the ease of production of software vs. hardware. While many of the comparisons Goetz uses to make his point are indeed valid, practically only large entities have the power to manufacture hardware, making patents a practically enforceable tool in the market. All the disputes that arise are between companies that have a team of lawyers and an account that can fund them. Meanwhile, software readily reproducible by anyone with a few hundred dollars, intelligence and time (or a few thousand people with less time each). The production of software is not really comparable to hardware in this aspect. It would be as if anyone with a simple soldering iron and scrap metal could produce an original processor. Intel and AMD design concepts would be mixed up and scattered all across the globe. And not even this captures the case of software, because of how easy it is to share and copy software.

Add to this the applicability of real world paradigms to software, which results in things like shopping cart patents, and the fundamental emphasis of patterns and abstraction across problems in software development and patents begin to look less and less reasonable both in terms of enforceability and applicability.

Patents are not a natural right (1)

maxm (20632) | more than 4 years ago | (#30281584)

They are a political and economic tool to advance economic growth and development of new technology.

In the software world where there are many people working on the same problem, and finding the same solutions. Patents are of no use whatsoever.

I would like to be proven wrong though. Is there any examples of software that would not have been developed without software patents?

I see what you did there (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30281590)

Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

Sweet framing there! Does it weaken your argument that you've raped and killed a young girl in 1990? Waterfall is still in heavy use and most of the complex industrial strength software is buitl this way. Rapid development application built on *top* of such software can take more beating and usually are those who benefit from "modern" practices.

True, but ... (1)

nodan (1172027) | more than 4 years ago | (#30281598)

It is certainly true that many ideas can be implemented in software as well as hardware, so this really shouldn't be the line drawn for patents. Still, software patents feel something between wrong and outrageous for most people - why?

I think there are two reasons for this: First, there are a lot more people building meaningful stuff with software than with hardware because it is cheap and easy. All you need is a computer for a couple of hundreds of bucks, and if you like you get all the rest for free (as in beer). For everybody who wants to write software, a patent could be in the way.

Second, and more important, many if no most patents lack substance and should not be patents at all, and for software this is even more obvious than for hardware. What is this one-click-buy-stuff about? Should there maybe be patents for storing text documents on a harddisk or using pixels to show text on a screen? I probably wouldn't mind a software patent for reasonable inventions, like a O(n) sort algorithm. But it's so incredibly hard to come up with such inventions ...

I have a past at a global player in the electronics market and I've seen some drafts for patents that in my opinion should never be granted. However, giving the current patent system, the number of patent applications is a value in itself, regardless of the substance behind.

All that said, as long as the patent system is not fundamentally changed, software patents are going to do a large damage to both the economy and the consumers.

All software is math. (2, Interesting)

MrMista_B (891430) | more than 4 years ago | (#30281622)

All software is math, no exceptions.

You can't patent math.

Well, in the current state of things, you /can/ patent math, and that's something a lot of people are hoping is revoked.

Imagine if something like calculus had been patented, or the quadratic equation?

We'd be fucked, as a species.

For a concise, well written and much elaborated explanation, see "An Explanation of Computation Theory for Lawyers": http://www.groklaw.net/article.php?story=20091111151305785 [groklaw.net]

Now, that's written specifically for lawyers, but it should be clear enough, perhaps more clear because of that, for most of the Slashdot crowd to get it - all software is math, no exceptions, and math should not be patentable.

Re:All software is math. (1)

maxume (22995) | more than 4 years ago | (#30281710)

If calculus had been patented, the patent would also have expired something like 300 years ago. And there would probably be extensive cross licensing, like in the microprocessor world.

I'm not saying that software patents are a good thing or that current patent law makes sense, I'm just pointing out that your argument is histrionic.

Re:All software is math. (1)

Lundse (1036754) | more than 4 years ago | (#30282250)

If calculus had been patented, the patent would also have expired something like 300 years ago. And there would probably be extensive cross licensing, like in the microprocessor world.

I'm not saying that software patents are a good thing or that current patent law makes sense, I'm just pointing out that your argument is histrionic.

I think the argument holds. While the original patent to calculus would have expired, the inventions made from it by the owner or those licensing would now be owned, and so on. Also, cross licensing of math is only marginally better for 99% of us, than "one man owns math".

Re:All software is math. (1)

Trepidity (597) | more than 4 years ago | (#30281826)

Well, so is lots of other stuff patented, if you squint at it hard enough. Yes, all computing can be described at its base by computation theory, and is therefore math. But patents of physical machines are at their base usually also math: ultimately macroscopic physical phenomena are just derivable mathematical consequences of lower-level physics theories.

The question is what level of ingenuity is worth patenting. I'm not sure that differs markedly. In both cases, it's more or less: is this truly a remarkable discovery, which an expert in the field is likely to see as highly non-obvious? There are cases of patented physical devices that are straightforward applications of known physics and mechanical practices, and there are cases of patented software that are straightforward applications of known computing theory and practices, and cases of both that aren't. I'm certainly open to the possibility that real ingenuity is less often found in software patents. But I'm not sure there's a fundamental philosophical difference: both are just patenting mathematical regularities in the universe that happen to be of practical interest.

Re:All software is math. (1)

minsk (805035) | more than 4 years ago | (#30282270)

Reality defines math. Math defines computer programs. It is a rather important difference.

Development Cycle (2, Insightful)

Brett Buck (811747) | more than 4 years ago | (#30281646)

Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

        In a word, no. It doesn't matter how or in what context you come up with something, it's whether it's sufficiently unique or not. And in any case, I am not sure why you refer to "current development practice" since that varies wildly from application to application, and the "waterfall" process is certainly still in full force for many serious programming applications.

        Brett

     

Re:Development Cycle (1)

Jah-Wren Ryel (80510) | more than 4 years ago | (#30282202)

it's whether it's sufficiently unique or not.

His point was more abstract than that. He wasn't referring to the uniqueness requirement of patent-ability, but rather to the "promote progress" justification for the existence of software patents in the first place. Software patents have the potential to hobble open collaborative software development to the point of extinguishing it. Given how much more software now is open source than was in 1968 - and how the waterfall cycle (a complete joke in and of itself [tarmo.fi]) is practically never part of such development work - the writer was questioning if Goetz is even knowledgeable enough of the current situation to be a knowledgeable commentator.

So once and for all (0)

Anonymous Coward | more than 4 years ago | (#30281714)

Most people always mix two different things:

1. Inventions

2. Transformations of already known things to computers

- Inventions are for example new algorithms for speech-recognition that were unknown before.

- Transformations are just things that already arer know to the normal world and now will be done with help of computers. This is nothing new, should not be patentable and is called "Business-Idea".

So once and for all:
Transforming things that already work in the real world, and whose parts are already known to computers should not be patentable because they are not new!
Example: Software-Development with Speech-Recognition:
- is already known, just imagine boss that says to you: Pleas write funktion x with y.
- To do this there are no new things for the computer to do, just use your favorite development tool and speech-recognition software.

best regards,

Jan Kechel

Does it weaken his argument? (1)

MikeRT (947531) | more than 4 years ago | (#30281750)

Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

It's not the design practices per se, but rather the software market that does. It is significantly easier to build an independent, popular product today than it was 40 years ago. The main argument for patents is to protect a company's investment in the risk of doing R&D to get a product to market. Pharmaceuticals are one of the last industries where that is probably still a valid concern. For software it is at best, rent-seeking, and at worst a cudgel with which they can beat smaller players or extort big, lumbering giants.

he's actually right (2, Interesting)

Tom (822) | more than 4 years ago | (#30281786)

No, really. And I say that as an outspoken opponent of software patent.

His most important sentence is It is obvious that software products are not "software ideas". - and that's what's wrong with the patent system. A hundred years ago, you had to submit a working model to get a patent. These days, you can patent software ideas and business processes.

When we speak about "software patents" we are really talking about monopoly rights on algorithms. And that's as stupid an idea as a copyright on a number.
What the author apparently means when he talks about "software patents" is a complete product, a working implementation of a concept that can be demonstrated to do what the list of claims contains. That's a bit of a different animal than about 99.999% of the software patents issued during the past 10 years.

And I agree that a bit of protection on that would be nice for those who invented it. We can discuss whether or not patents is the right tool, or copyright, or some new form, but that's not important.

mathematical induction against software patents (1)

cfriedt (1189527) | more than 4 years ago | (#30281832)

I would argue that the 'ingenuity' required to make hardware vs. software is most certainly not equal. Many software developers might not understand why, but that's because they are not hardware developers. A software analogy is, for example, defining specifications versus defining implementation. A hardware-ish example is the analog / digital divide. Hardware designers know, that nothing actually is digital.

The concept of patenting software has so many logical weak points it's not even debatable in my opinion.

  1. if the FFT is implemented in x86 ASM, certainly the FFT in ARMv7 ASM is fundamentally a different 'device', even when drawn at the block-diagram level or flow-chart level.
  2. if a software patent on a different arch / OS is patentable, then the holder of the patent should show prior art when someone augments their design for a different arch / OS, but they often can not and will not.
  3. since there are many different ways to make a processor (ISA included), it's theoretically impossible for one entity to hold a patent for all software 'devices' that perform a similar task. If that were the case, then I could design a new processor with a new ISA, and make an augmented design and file for a new patent.
  4. works for any number, n, of arch's / ISA's, but will always face contradiction for n+1
  5. ... the list of holes in the software patent system goes on...

I need to start trademarking "catch phrases" then (1)

erroneus (253617) | more than 4 years ago | (#30281868)

The main difference between software and hardware development is not how clever once can be in either medium, but in how difficult it could become or how much dependency there is with previous works. In hardware patents, there will still be some dependency on previous works, but not so much as those things that are typically covered by copyrights such as software or other language based works.

But if the arguments are "because software can be clever" or "because it can make a bunch of money" then it's about time I started trademarking every clever turn of a phrase I can think of and suing people every time they say it in the same way the music industry wants to sue people who sing at restaurants. (Yes, I know there are some differences, but you can't deny how incredibly stupid it is in general)

I think the end game for software patents are not about the principles of the patents themselves where many are weak to begin with (rife with prior art that is never found or presented prior to granting) but with the weak patent system and how it is being abused, how it is used to harm and monopolize an industry where patents where intended to benefit them. When a practice no longer meets its intended purpose, it is time to change that practice to match its purpose or abandon it all together, whichever is more effective.

Patent System stacks the deck... (1)

Junta (36770) | more than 4 years ago | (#30281972)

We all bemoan the software patent situation largely because it's a market with nearly no barrier to entry otherwise, but the system isn't good as it stands for physical inventions either. Infringing a copyright is hard to accidentally do, but infringing a patent accidentally represents a huge risk to someone. Even if you didn't think it was patentable, if it hits you, it will be pricey to defend yourself even if right. Exacerbating this problem is that patents are extremely long lived given the general rapid pace of the software market (don't have to invest a lot to 'ramp up' production, delivery to customer is potentially instantaneous, even if it takes you a full year from patent filing, you can probably earn the worth of it in five years or less.

Assuming you do have a unique and genuinely innovative idea, unless you can tap the resources of a large corporation who will assume ownership of your idea, it may be prohibitively expensive to get one as an entrepreneur. Assuming you do have the resources to acquire a patent, the process takes a relative eternity to get approval. If you need to go to market *now*, you have to run under the hopes that your patent will be granted. In the intervening area of time, competitor's may bet you won't get it and drive you out of the market. Even if you eventually will get the patent, that competitor may drive you out of business before your chance to seek damages comes (even if retroactive, the damage is done). Assuming you make it to market and have the patent granted, going after a large company is also likely not to work relative to a large company going after a small company given the legal resources available. So a good shot at patents require the resources more available to large companies, and the patience of a large company that has enough bankrolled that can afford to be patient, and the resources to defend that patent vigorously.

Well... (0)

Anonymous Coward | more than 4 years ago | (#30281974)

He would, wouldn't he?

Ask "why?" rather than "why not?" (1)

Richard Kirk (535523) | more than 4 years ago | (#30281984)

Goetz argues that there is no principled difference between software and hardware patents. In that respect, he is right. There is no fundamental reason why an invention has to be made of something physical. But that is not really the point.

Patents, like copyrights and trademarks, grant the user rights by taking rights away from the rest of us and granting the inventor or composer a monopoly. In some cases, this may be necessary or desirable to protect the creative individual from the clutches of capitalism, red in tooth an claw. However, monopolies are often unnatural things that have to be maintained by states passing laws to grant the rights, and courts enforcing the rights. This all comes at great cost. This is not something we ought to do unless there are proportional benefits.

If someone makes a piece of music, they might be annoyed if someone else copies and sells it. They would feel entitled to some sort of redress, and rightly so. However, most contemporary music makes almost all its sales in the first seven years or so. This would seem to the the natural scope for a copyright. However, if copyright covers seven years, then why not twenty years; the writer's lifetime, the writer's lifetime plus twenty years, and so on? Suing someone for singing "Happy Birthday To You" is a clear sign that things have gone too far.

The same applies to patents. While software patents may not be harmful per se, we see patents for pieces of coding that are so well-known as to have no known 'inventor' being patented (usually in Texas - not a good sign). This is practically the same as copyrighting a folk tune which has no identified composer. There is also no good way of searching prior art for software just yet, because this was not necessary before. The same sort of argument applies to business practice patents. It surely makes sense to disallow both classes of patents because their presence does not seem to do anyone any good, other than patent trolls and their lawyers. This is surely better than to allow them because we cannot argue "why not?"

Right and wrong at the same time (0)

Anonymous Coward | more than 4 years ago | (#30282002)

He's right. There's no principial difference between software/method and hardware patents. It's always the use of an idea that gets monopolized.

He's wrong. Patents are bad both software/method and hardware. They're all granted monopolies backed by government use of force against people, for gain of some people and loss of some other people. That's not the proper role for government in a good society.

Goetz argument (2, Interesting)

ath1901 (1570281) | more than 4 years ago | (#30282140)

Goetz argument isn't weakened by using the waterfall model. He's just comparing phases of the waterfall model traditional manufacturing so that's hardly an argument at all.

His argument seems to be that since you can implement any algorithm in hardware just as well as in software, both ways are equal and thus patentable (given the current patent laws).

His mistake is that you can not and should not ever be able to patent algorithms (since it's math), only a specific physical machine that "executes" the algorithm.
No one has (yet) claimed a numerical method like Runge-Kutta should be patentable. However, if you find a novel way of implementing Runge-Kutta using sticks and rocks, you can patent that particular physical machine.

(Ok, some crazy patent lawyer or politician has probably claimed algos should be patentable but no "real" people with braincells)

GoF's Design Patterns Qualify for Patent (1)

ideonexus (1257332) | more than 4 years ago | (#30282320)

This was a very thoughtful explanation of why the system currently justifies software patents, and it does effectively pull my thinking a little more to the center on the matter; however, the author is justifying software patents from the perspective of someone who was programming when nothing fit the criteria of "obvious" in the field, when everything was new and innovative. The examples he gives, handwriting analysis, speech software, etc, are all very impressive, but I see them as bodies of creative work, collections of software engineering techniques that add up to something special, but also something anyone else should have the right to create if they have that same foundation of common software engineering tools in their minds. This makes software copyrightable, but not patentable in my view. For instance, I've been learning design patterns for OOP this year. The GoF put a great deal of effort into formulating these solutions, and there is nothing "obvious" about them. Should they have been patentable? If design patterns were patented, it would cripple the progress of software innovation, but the GoF published them for everyone to use, and, as a result of their wide-adoption within programming, they have become "obvious," and would no longer fit the criteria for patenting. We work in a field of accelerating cultural-adoption, as more people become programmers, the less esoteric our field becomes and the non-obvious innovations of 20 years ago are the cultural norm of today.
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