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The Software Patent Debate Is Incorrectly Framed

Unknown Lamer posted more than 2 years ago | from the through-the-looking-glass dept.

Patents 274

An anonymous reader writes "It doesn't matter whether a true invention is implemented in hardware or software, it should still be patentable, argues Marty Goetz — the man who was granted the first software patent in 1965." The crux of the argument, according to the author: "Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm."

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Mask Work Law and Why the Heavy Process? (5, Insightful)

eldavojohn (898314) | more than 2 years ago | (#37905798)

I found it odd that the author didn't cover mask work rights [wikipedia.org] in the United States. They only last 10 years in semiconductor mask works and are also reducible to mathematical equations despite being amazingly complex layouts of basic transistors and connections. I would argue these are closer to mathematical equations than Goetz's hardware circuit board example.

I'm not sure if software patents should be completely abolished, just reduced. Maybe five years? I mean, how long in the software industry until something is considered old news or common knowledge? For them to last 20 years just seems to be nothing but inhibiting of innovation to me -- and I'm a software developer! I'm one of the guys that should be benefiting from a longer term. But so far, it's only been a major pain in the ass. I'm sure Goetz could argue I'm just not "inventive" enough to hold software patents. I'd wager I'm just not up to the task of working with an army of lawyers.

I actually take serious issue with Goetz's explanation on the second page of the article about software:

Note that these terms are all consistent with a manufactured product: 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, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

Dude, you can make software development as complicated as goddamn rocket science. But at the end of the day some kid in a basement can also write software sans all that shit. I know where we work, we use Agile Methodologies, high communication, we work in very small teams and we depend on our developers not to be complete liabilities. Sure your control gates and extensive product assurance works too with just about any level of competence in your developers but I feel that's why software is so unreasonably expensive these days.

There are plenty of resources online that get you from nothing to your first "Hello, World!" program in a matter of minutes. The same is not true of hardware circuits -- especially if you want to manufacture them at all in a commercially viable way.

This analogy is rather flawed.

Re:Mask Work Law and Why the Heavy Process? (3, Insightful)

Anonymous Coward | more than 2 years ago | (#37905840)

Dude, you can make software development as complicated as goddamn rocket science. But at the end of the day some kid in a basement can also write software sans all that shit. I know where we work, we use Agile Methodologies, high communication, we work in very small teams and we depend on our developers not to be complete liabilities. Sure your control gates and extensive product assurance works too with just about any level of competence in your developers but I feel that's why software is so unreasonably expensive these days.

What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

Re:Mask Work Law and Why the Heavy Process? (2, Interesting)

Anonymous Coward | more than 2 years ago | (#37905858)

What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

RTFA, that was exactly Goetz's argument on the second page:

The software products industry is competitive and needs patent protection as much as any other tech industry. Those software doomsayers who say software is just ideas, mental processes or mathematics would change their mind if they examined the different phases of the life cycle of a software product.

During the definition phase software companies describe its functionality, its specifications, the environment in which it must operate, and its operating characteristics. During the design phase, they develop and define all its interfaces, break down the functionality into modules, and do all the engineering so that the product can be properly implemented, maintained and enhanced during its lifecycle.

During the implementation phase the software is debugged, tested, and goes through quality assurance. During the delivery phase there is alpha and beta testing, documentation, installation, and training. Often software companies sell the product to other companies where the software becomes a component of a larger system and is repackaged.

During the maintenance phase the company warrants its workmanship, and guarantees the correction of errors and defects. Finally, during the enhancement phase the software is improved, enhanced, upgraded, and new models, or releases, are announced.

Note that these terms are all consistent with a manufactured product: 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, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

Re:Mask Work Law and Why the Heavy Process? (4, Insightful)

mathew7 (863867) | more than 2 years ago | (#37906276)

What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

Sure it does. Patents provide you with control over your idea and offer a monopoly to it's implementation. If you don't license your idea (which is legal), you can only obtain money if you sell end products. Those end products have high margins for SW, where you can have 90% profit easy (note: not the research and development, only manufacturing=copying), whereas a HW product will probably not have more than 50%. Also, for SW you can sell at least 10x the number of units compared to HW, since the replication of HW will take you a lot of time (let's face it, a basement kid will not have a production line). So this rough computation means you get at least 18x money in the same period. Also, the investment (R&D) is much lower in SW because testing is done much faster and cheaper than a HW product. Why do you think almost everything goes into SW?

As for the process comparison, many SW patents are actually too small modules. Companies are not interested in quality patents, just in numbers. They throw patents hoping that 10% are approved. For instance Apple's "slide to unlock" patent I would compare it to "low-pass filter". Surely nobody used it until iPhone, but they were not many touchscreens at that time (PDAs and tablets were limited to business users). So while Apple did show the idea, it was approved too late (because of the delay in millions of other SW patents pending) and now is common because of their marketshare in the category they created.

In summary, you have much bigger profit and faster time to delivery, but you still get the HW's exclusiveness period. This is just milking the system and NOT supporting innovation. Supporting innovation is allowing your competitor to improve your idea if you cannot or, just the fact that he can improve, to offer you an incentive to improve it first. If your idea does not catch immediately, then you are in the wrong time and deal with it: innovate more. If it does, then learn to profit in the shortest time but still innovate while in peak, don't turn into a potato-couch for the rest of your life.

Mask work rights are more like copyright (1)

tepples (727027) | more than 2 years ago | (#37905864)

I found it odd that the author didn't cover mask work rights in the United States. They only last 10 years in semiconductor mask works and are also reducible to mathematical equations despite being amazingly complex layouts of basic transistors and connections.

Mask work rights are arguably more like copyright, which is why they're in the same title as copyright law. A patent restricts all machines implementing a particular function. A copyright, on the other hand, restricts only one particular implementation of a function. Likewise, as I understand it, a mask work is only one particular identifiable "amazingly complex layout" of a semiconductor; other layouts implementing the same logical function are not encumbered.

There are plenty of resources online that get you from nothing to your first "Hello, World!" program in a matter of minutes. The same is not true of hardware circuits

Write your logic in Verilog, prototype it on an FPGA, and then synthesize it onto an ASIC.

Re:Mask work rights are more like copyright (3, Informative)

WaywardGeek (1480513) | more than 2 years ago | (#37906198)

Masks are copyrighted. The designs they implement can generally be patented, but those designs are described in patents as certain interconnections of devices typically. Violations of circuit patent is generally easily verified. You just send the competitor's device to have the mask layers extracted from an actual die and run circuit extraction on the result.

VHDL and Verilog are normally copyrighted. When they implement patented algorithms, it's effectively a software patent, which should also be banned as patenting mathematical algorithms. However, most patents are things like "Connecting a first fifo to a blah blah blah", where rather than patenting an algorithm, they patent a certain connection of circuit blocks. I would argue that is not a mathematical algorithm.

The original authors of our patent system were wise to ban mathematical algorithm patents. Such patents present a real threat to the free flow of ideas in universities and in open source software. They hold back progress. While it is easy to find patent violations in open source software, it's nearly impossible in proprietary binary-only software. As a result, we get vague threats like "Linux violates 100 of our patents. Pay us royalties *or else*." When you ask which patents you violate, they say it's a secret. The system is so screwed up, it's unbelievable it has supporters at all. I personally have several software patents. For the first few years, I refused to file them, and only filed hardware patents, but then a competitor patented an algorithm we'd been using for years, so I gave up and patented everything that was allowed by law. The result was a huge waste of time and money at both our companies, with zero benefit. Only the lawyers win.

Re:Mask work rights are more like copyright (0)

Anonymous Coward | more than 2 years ago | (#37906578)

"Violations of circuit patent is generally easily verified. You just send the competitor's device to have the mask layers extracted from an actual die and run circuit extraction on the result."

What wonderland do you live in where this is easy? Learn WTF you are talking about.

Re:Mask work rights are more like copyright (2)

Dog-Cow (21281) | more than 2 years ago | (#37906404)

Patents restrict specific implementations of a specific functions. That is exactly the problem with software patents -- they are used to restrict all implementations.

Masks have to work in the real world (1)

Anonymous Coward | more than 2 years ago | (#37906048)

Masks have to work in the real world, not the constructed one of mathematical proofs or software.

Therefore in software, you don't get magnetic interference unless you put it there. If you don't want interference, you take it out of your software or maths equation.

In software you can have a gear with 10,000 teeth. In the real world, you can't. The ingenious (inventive) step is how to get the effect of 10,000 teeth in a world where such a thing cannot exist.

You can work out mathematically how many gears you need to get that effect from the set of possible gear teeth, but in the real world, the gearing reduces your available torque and your mathematical gear doesn't produce your result.

Therefore the real world is different from the world of maths or software.

And this is why a mask or any physical creation is patentable but a mathematical form isn't.

Re:Mask Work Law and Why the Heavy Process? (1)

Xest (935314) | more than 2 years ago | (#37906092)

"This analogy is rather flawed."

Yes, and even if it wasn't, then I just read the summary as basically saying some circuit boards probably shouldn't be patentable either, not that because they are, software should be too, which was his argument.

Cease and Desist - "Hello, World!" (-1)

Anonymous Coward | more than 2 years ago | (#37906116)

"Hello, World!" is a patented, trademarked, copyright, and copyleft protected piece of intellectual property!

Bigger issue (2)

currently_awake (1248758) | more than 2 years ago | (#37906380)

This ignores the bigger issue, that software patents rarely include sufficient detail to allow others to duplicate the work. The whole point of patents is to give the tech to others.

Re:Mask Work Law and Why the Heavy Process? (0)

Anonymous Coward | more than 2 years ago | (#37906452)

There's two problems with software patents and the analogy:
1) there's incredibly feeble research into prior art when granting software patents, such that software patents are granted to the third or fourth "discovery" of the same thing at times, and because of the revenue stream for the patent offices in some countries, reversing the patent almost never happens with restitution to the original inventor(he's more likely to get sued!)
2) A software patent is given for "using a class of algorithms to solve a class of problems" not "using one specific equation with a specific set of values

If you use a btree, btree* or btree+ to store data, that's still considered to be covered, mostly under the same patent... The provisions for clean room invention don't allow you to come up with a different alternative if it's too clean.

Try coming out with the same vertices on the software mask in a clean room, and you'll see why it's a problem.

The main "hurt" is that the patent office would need a software patent bureau, staffed with the equivalent of a large university's comp sci, IT, Artificial Intelligence and Robotics faculties, just not to FAIL at giving good patents.

The main sticking point here, is that no patents is better than bad patents and mediocre patents, as the latter two REDUCE innovation, by allowing patent trolls to sue discoveres in those fields, which is counter to the very idea which gets us a patent system in the first place.

Yeah, exactly. (5, Insightful)

lorinc (2470890) | more than 2 years ago | (#37905802)

That's why all patents are just plain bullshit and should be nullified...

Re:Yeah, exactly. (2, Insightful)

Anonymous Coward | more than 2 years ago | (#37906344)

Here's a long but full analysis [ipocracy.org] by Pieter Hintens of why all patents should be nullified.

Re:Yeah, exactly. (0)

dk90406 (797452) | more than 2 years ago | (#37906602)

Not all. While I agree that patents on software (and business processes) are plain silly, I think that patents should be allowed on medicine and machinery (sans software). It costs billions and take years to develop drugs and you should be granted protection. It costs a lot to develop a new efficient engine or display technology
But do not try to patent genes or *potential method of curing x*. Do not try to patent a medication that was previously patented, because you just discovered that it also can cure something else. Discovering a new use for something already developed gives you the right to brag, write articles, gain a nobel. Not a patent.

(Insert XKCD reference here) (3, Interesting)

MSojka (83577) | more than 2 years ago | (#37905810)

Hardware is just physics and physics is just applied mathematics, so everything can be reduced to a mathematical problem ... if you're willing to be silly and unhelpful enough.

Re:(Insert XKCD reference here) (3, Insightful)

Reality Master 301 (1462839) | more than 2 years ago | (#37905854)

Hereby inserted: http://xkcd.com/435/ [xkcd.com]

Re:(Insert XKCD reference here) (1)

Anonymous Coward | more than 2 years ago | (#37905894)

The XKCD drawing is far too small to include logic and logicians.

Re:(Insert XKCD reference here) (0)

Anonymous Coward | more than 2 years ago | (#37905872)

Not exactly. It depends upon how you define "mathematics". For example, Logic and Mathematics are not equivalent in the general case.

Also, not all mathematics is known, and neither is all physics. It would be impossible to state with certainty that they are equivalent unless you're generalizing one or both to the point of irrelevance.

Re:(Insert XKCD reference here) (0)

Anonymous Coward | more than 2 years ago | (#37905900)

Can I patent mathematical problems?

Re:(Insert XKCD reference here) (2)

Hatta (162192) | more than 2 years ago | (#37906220)

Why is that sily and unhelpful? It's one of the fundamental truths of the universe. Everything is math.

Re:(Insert XKCD reference here) (0)

Anonymous Coward | more than 2 years ago | (#37906340)

Note that most branches of maths are just elaborate term rewriting systems. Which is one branch of computer science.

Eat that, you maths guys. ;-P

Re:(Insert XKCD reference here) (2)

betterunixthanunix (980855) | more than 2 years ago | (#37906516)

However, math on its own is not patentable, and it never has been. Hardware is not just math -- math explains why it works, but hardware physically exists.

Software, on the other hand, is purely abstract. It does not really exist anywhere, any more than the quadratic formula exists somewhere. You cannot infringe on a hardware patent by simply writing down a description of the hardware; yet that is exactly what infringing on a software patent is. That is why software is covered by copyright law -- it is no different from the text of a book, which is not patentable.

Re:(Insert XKCD reference here) (1)

horza (87255) | more than 2 years ago | (#37906460)

You are using physics in two different senses of the word, therefore your logic does not hold. In the first instance your use of "physics" refers to the fact that everyday objects can be broken down into component parts, each of which follows a set of rules that apply at that particular level at which you are modeling (a ball being thrown, down to quantum mechanics). Your second use of the word "physics" refers to the educational discipline in which we try and develop mathematic models to account for the behavior shown in the first instance of your use of "physics".

Phillip.

flawed logic (2, Interesting)

moronoxyd (1000371) | more than 2 years ago | (#37905828)

Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm.

So because the two things are similar in one respect they should be treated as if they are the same?
My sister and I bear the same family name, so we are the same?

Flawed logic at it's best.

Re:flawed logic (1)

Avoiderman (82105) | more than 2 years ago | (#37905886)

For you and your sister I'll give it a go ;) ... But yes this is an argument Plato dismissed many many moons ago. Simple logic would be a useful common feature in the species ...

Re:flawed logic (0)

Anonymous Coward | more than 2 years ago | (#37906006)

No, you moomin, but since hardware and software can both be reduced to a mathematical algorithm, the fact that software can be reduced to a mathematical algorithm is not an argument against patenting software. Sheesh. Get it now?

Re:flawed logic (2)

harlequinn (909271) | more than 2 years ago | (#37906140)

No, you moomin, but since hardware and software can both be reduced to a mathematical algorithm, the fact that software can be reduced to a mathematical algorithm is not an argument against patenting software. Sheesh. Get it now?

Software is at its core a "mathematical algorithm". We use a high level programming language to be able to translate our instructions into that mathematical algorithm (otherwise it would be too cumbersome and complex to program). It is an abstract mathematical entity.

On the other hand, circuits and just about any other physical entity can be "reduced" to a mathematical model/algorithm of some sort. But they are still physical entities first and foremost with a mathematical model as a simulation or representation of that object.

Re:flawed logic (1)

horza (87255) | more than 2 years ago | (#37906612)

Indeed harlequinn, with the addition that the computer program can be compiled into infinite 'hardware' implementations. Onto different processor architectures including virtual ones, using different compiler options such as loop unrolling, etc. The key point is that software essentially is a mathematical algorithm, hardware can be modeled by one but isn't one. Parent should be modded up.

Phillip.

Re:flawed logic (0)

Anonymous Coward | more than 2 years ago | (#37906622)

Moreover, in the case of hardware you actually need to do experiments to make sure that the mathematical model matches physical reality. And after you have set up a production line, you need to do quality control to make sure that the products function as intended, i.e. still match the mathematical model.

Re:flawed logic (2)

MattBecker82 (1686358) | more than 2 years ago | (#37906020)

Totally agree. There's a qualitative difference between hardware, indeed any physical product, and software. Namely, the economics of reproducing the product are different: The marginal cost to reproduce software is indistinguishable from zero, but the marginal cost to reproduce a physical product is at least as much as the cost of the raw materials.

Once the development costs are mostly sunk (likely by the time you are at patent-granting stage), a software developer has all they need to produce unlimited copies at effectively zero cost, and a software patent grants them this right exclusively for a limited time. On the other hand, for a physical product, even after the development costs are sunk, the manufacturer still has to play off the costs of production against the revenues.

Based on this, it certainly seems to me that a patent would distort the "natural" supply/demand-led price discovery when it pertains to a software product much more than when it pertains to a physical product. And no, I'm not a dyed-in-the-wool free-marketeer, it's just to point out how the pure economics mean this analogy with patents on physical products is certainly fallacious.

Re:flawed logic (0)

Anonymous Coward | more than 2 years ago | (#37906054)

There are some parallels between software and hardware algorithms. If you can implement an algorithm as a circuit whose primary duty is to make a calculation using existing circuit elements then that should not be granted a patent. On the other hand the creation of new circuit elements or new techniques for constructing circuit elements should be considered for a patent. Just because it is physical does not imply it not simply an algorithm.

Re:flawed logic (3, Informative)

jellomizer (103300) | more than 2 years ago | (#37906110)

So is your analogy.
You and your sister have the same family name so when you too are compared together by name the assumption will be that you are part of the same family. Where the same family values and traditions are shared.

Computer Hardware has the rules and logic built straight into the equipment. In theory you can make any programming language when compiled except for creating opt code it can create a circuit diagram that can be made into a chip. Once it is created it cannot be changed, without replacing the part.

Computer Firmware has the rules and logic built into a flash chip, that simulates hardware. It is not quite hardware because it can be reflashed, it isn't quite software because it is required for operations of the device.

Computer Software has the rules and logic saved in a method that is changeable and movable. Unlike Firmware or Hardware this can be changed while keeping the device functional and its job is to use the hardware and firmware in different methods.

But Hardware Firmware and Software are all methods of storing Rules and Logic. The creative process in making all three is about the same so legally they should be treated equally.

As for Patents I am under the impression that too many of them are getting passed because they are obvious where someone would come up with the same solution when faced with same problem.

However there are some (Some that are easy to code after you see it, and some that may be a major project) that are really a unique approach to a problem that wouldn't happen otherwise, and the inventor should have rights to the idea. Yes freedom for the developer to choose how he wants to use his invention is against the Open Source Software agenda, however I think you should reward inventors and innovators.

Re:flawed logic (0)

Anonymous Coward | more than 2 years ago | (#37906600)

Its your logic that is flawed. You and your sister bear the same family name, that doesn't mean that you are equal rather that you have similar rights and duties, like you have rights to the money and state of your family when then die or that we all are under the same laws.

Re:flawed logic (1)

itsdapead (734413) | more than 2 years ago | (#37906604)

So because the two things are similar in one respect they should be treated as if they are the same?

Except that "software is mathematics [groklaw.net] , and patent law specifically excludes mathematics" is a widely cited argument against software patents.

Of course, whatever the fundamental identity is, few bits of software are derived through formal mathematical methods - and in that case it just shifts the "inventive step" from writing the code to transforming the real-world problem you want to solve into a formal specification from which you can derive algorithms.

Plus, I'm sure that its been true for many years that any substantial bit of electronics probably started life as "software" for a simulator. Not to mention the grey area of things like Field Programmable Gate Arrays where the "circuit" is just a data file saying how to hook the gates together.

Of course, the whole proposition is non-falsifiable unless someone can come up with a testable definition of what "x 'is' mathematics/y 'is not' mathematics" actually means. For legal purposes, I suspect it depends on a court trying to guess the intentions of whoever originally excluded mathematics from patent law (most of the 'mathematics' involved in computing theory post-dates the idea of patents by a long chalk... anybody know when the 'mathematics' clauses showed up?)

As MattBecker82 points out below, the real issue is that patents are far more disruptive to software business models, which rely on 'zero marginal cost', than they are to hardware production. Plus, computing has long been plagued with monopolistic practices, even without patents. The point of patents is to promote innovation and industry - its pretty clear that they don't do that for software.

Depends on patent depth and complexity (0)

Anonymous Coward | more than 2 years ago | (#37905876)

I don't mind that one should be able to patent software or hardware, or anything that is more complex than basically a rectangle with rounded edges. Where the problem starts is that is seems as if anything, no matter how vague the definition might be, can be patented nowadays. Not only is it plain stupid, it also harms the market as it is used as a weapon to block competitor from entering a whole market segment instead of being used to protect complex and expensive research and design in a specific way.

New Idea (0)

Anonymous Coward | more than 2 years ago | (#37905880)

Personally I think as long as it's a new idea shouldn't you be allowed to patient it? Hardware or Software or whatever, if it's a new idea no one has seen or isn't widely accepted then I should be able to patient it.

Re:New Idea (2)

Cryacin (657549) | more than 2 years ago | (#37905936)

Define "New Idea"

Re:New Idea (4, Insightful)

foniksonik (573572) | more than 2 years ago | (#37906058)

Should you be able to patent the combining of two old ideas? Many software patents are not new but are simply an old idea implemented in a new way but using existing techniques which are obvious to anyone skilled in that area. Typically it is just an extension into a different field of use.

Eg. A database to keep track of bird sightings. There is prior art of how to record such things in a log book (spreadsheet/table format) and anyone skilled in the creation of digital databases can duplicate this format and write CRUD operations.

This would probably receive a patent in the current atmosphere. I've seen many patents just like it but for other topics.

IMHO the above example and all "software" or "business method" patents like it should be nullified. They are not new or innovative in any way. They are just applications of existing technology.

Re:New Idea (0)

Anonymous Coward | more than 2 years ago | (#37906108)

Personally I think as long as it's a new idea shouldn't you be allowed to patient it? Hardware or Software or whatever, if it's a new idea no one has seen or isn't widely accepted then I should be able to patient it.

Fuck no, you need to come up with an application of that idea.

Many people tried to invent a telephone, for example. Several people had the exact same idea that Bell did, but nobody could patent it because you had to patent a specific application of it. Anybody who made a significant improvement on that application would not violate the patent.

Or to put it another way, many software patents are not patenting a solution to a problem, but ANY solution to a problem. And that's not how it's supposed to work. Software patents should require source code and/or a working binary, and reverse-engineering the binary should NEVER be illegal just as you can't make it illegal to take apart a car or any other physical device. If those simple rules were made AND enforced, then the bulk of bullshit software patents would vanish overnight.

Re:New Idea (3, Informative)

Kjella (173770) | more than 2 years ago | (#37906240)

The problem is that you're taking a lot of obvious and known methods, apply them slightly different then patent it. You are essentially creating an anti-competition moat around your product. To take one example, Apple's slide to unlock patent. Is is really that fundamentally different than the slide-to-open camera I've had for many years? The purpose is the same, rather than some button that can be accidentally pushed in the slide doesn't happen very easily. For example, the latest hype now is tablets. I'm pretty sure you can find plenty patents filed lately taking what is obvious on a cell phone or computer, but reapplied to tablets and patented again.

Another example was the Creative patents Apple had to license for the iPod, I read a bit of them. It was essentially taking all the functionality in WinAmp or other PC players and patenting them on a portable music player.

Of course I can see that sometimes taking an existing technique from a different industry and applying it can be a rather revolutionary and novel idea. But most of the time it's not and yet they grant patents for it all the time.

ASSBUG!!!!! (0)

For a Free Internet (1594621) | more than 2 years ago | (#37905890)

the DEVIL is the th the the the the the thethe the ASBUG DEVIL DEVIL ASS ASS ASSS BUG DEVIL DEVIL!!!! devil the the the Devule hfiueknmwtwgr8vfd9iukj wtge the the

simple (1)

Anonymous Coward | more than 2 years ago | (#37905914)

make everything patentable.

patents expire in 5 years.

everyone wins.

Re:simple (0)

Anonymous Coward | more than 2 years ago | (#37906070)

make everything patentable. patents expire in 5 years. everyone wins.

Cool! I patent oxygen, please hold your breath until it expires.

Re:simple (0)

Anonymous Coward | more than 2 years ago | (#37906256)

No they don't. 5 years is like a time to live for much innovation. Making it 5 years doesn't take away that the fact there is probably a broad software patent that covers everything you can write in software and that only the wealthy can defend themselves. Junk them entirely and you'll see much more innovation.

Software could mean like ideas as well (0)

Anonymous Coward | more than 2 years ago | (#37905922)

Yeah and software are pretty much like ideas too, so lets go and patent ideas. Ideas can be reduced to a mathematical algorithm for sure ;P

I hate companies stoping evolution and progress in terms of money. Yes, saving my investment over the knowledge of progress, I could accept something like 2 years or so, but what we got now is bloody greed. No one can invent anything in his own garage because you will get sued.

Re:Software could mean like ideas as well (1)

Noughmad (1044096) | more than 2 years ago | (#37906432)

Yeah and software are pretty much like ideas too, so lets go and patent ideas. Ideas can be reduced to a mathematical algorithm for sure ;P

Ideas are more powerful than software. We would not let the 99% have software, why should we let them have ideas?

Analogous to a printing machine (2)

foniksonik (573572) | more than 2 years ago | (#37905934)

Is there any debate that a printer can be patented? No. The output of the printer however is another story altogether.

Re:Analogous to a printing machine (0)

Anonymous Coward | more than 2 years ago | (#37906090)

Or the notion of CREATING a printer - how it works should be patentable, but not the "idea" of a "printing device", as seems to be the approach of a lot of software patents.

Re:Analogous to a printing machine (1)

alexhs (877055) | more than 2 years ago | (#37906392)

Is there any debate that a printer can be patented?
No. The output of the printer however is another story altogether.

The output of the printer is what is submitted to the USPTO, so you better have it patentable or that would require all patent applications to be hand-written, in which case you could replace printer by pen which would cause the same issues :)

Re:Analogous to a printing machine (1)

Shimbo (100005) | more than 2 years ago | (#37906414)

Is there any debate that a printer can be patented? No. The output of the printer however is another story altogether.

So, can a self-replicating 3D printer be patented or not?

Times change (4, Insightful)

Aladrin (926209) | more than 2 years ago | (#37905938)

At one time, innovation and invention were hard to come by, and needed to be encouraged greatly. They weren't viewed as profitable and useful enough otherwise.

Today, innovation and invention is far cheaper, faster, and more profitable. The low end of the range can have massive changes in weeks. The high end still take years, money, and knowledge.

It's still worth protecting the high end. But 'protecting' the low end just stifles innovation. The system was supposed to correct for this by refusing 'obvious' patents. Now, either we need to redefine 'obvious', or there needs to be more unpatentable things. If you can bring something to market in a single month, there's no way that should be patentable. (1-Click, I'm looking at you!)

But if it takes a year, then it needs protection for the creator to recoup their money.

I don't know if it would work, but it would be an interesting twist to see patents expire when their cost has been recouped. So if you try to license patents out instead of creating the item, the best you could do would be to break even. (This would not include operating costs in the mean time, only profit, so you could probably make a decent living by stretching it out, but you couldn't possibly grow your company with it.)

Then Patent Music (0)

Anonymous Coward | more than 2 years ago | (#37905940)

If LET A=1 is patentable, then so is music. In fact, if OS elements are patentable then so is any graphical arrangement. I now own the concept of showing an eggplant on the back of a camel. The IP system is missing the ability to be proactive- to define protections for an evolving world. One thing's for sure, the guy in his garage is no longer a threat to any tech giant.

Re:Then Patent Music (1)

Noughmad (1044096) | more than 2 years ago | (#37906456)

I now own the concept of showing an eggplant on the back of a camel.

Great Steve, when did you come back?

Non-obvious to one skilled in the art (2)

Overzeetop (214511) | more than 2 years ago | (#37905946)

Since the examiners are skilled in the art, how can they possibly apply that test? The purpose is to reward actual innovation (dare I say "strokes of genius"), not "what we were working on this week in the lab."

Re:Non-obvious to one skilled in the art (2)

WaywardGeek (1480513) | more than 2 years ago | (#37906388)

In general, the fact that no else seems to be using your idea is enough to show that it's either A) not obvious, or B) not useful. If the patent office allows you to patent a not useful idea, no one is harmed, so it's simplest for them to just assume that it is A, and not argue the inventors over how wonderful or not their ideas are.

The main problem with this is when people file sub-marine patents as patent trolls. For example, I'm going to guess that tablets and phones will continue to integrate more sensors. So, I could file a patent on one that has a 3D motion sensor for controlling software by waving your hands in front of one or two cameras in the device. I could patent a phone with a heart rate monitor, or a one button 911 feature that puts an ongoing crime's location and video instantly on the web and alerts the police. I could file a ton of dumb ideas, and delay having them published (I just finished a patent that took 10 years - not on purpose). Once Samsung or Apple is pushing it as their next hot feature, I get my patent published and sue them for insane amounts of money. I don't know the answer for patent trolls, but we need to deal with the problem. The stupid big-business answer that seems to be going into effect is to limit damages, rather than troll patents. This in effect allows them to sue you for everything your worth (a millon is enough for most of us), while we can only sue them for chump change they don't care about.

Yeah, as long as you release the source (2, Insightful)

BlueScreenO'Life (1813666) | more than 2 years ago | (#37905960)

Software should be patentable *as long as the source code is released*, which is not the way it's usually done. Quoting from WTO TRIPS [wto.org] agreement, which has been signed and ratified by the vast majority of countries in the world:

Article 29 Conditions on Patent Applicants 1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.

Emphasis mine.

MPEG releases demo source (2)

tepples (727027) | more than 2 years ago | (#37906118)

Software should be patentable *as long as the source code is released*, which is not the way it's usually done.

But that's the way it's done by the MPEG effort of ISO and IEC. For example, MP3 is patented, but demonstration source code for an encoder was made available. In fact, BladeEnc and LAME were bootstrapped from the ISO demo code, replacing one component at a time [wikipedia.org] .

Re:Yeah, as long as you release the source (1)

kwikrick (755625) | more than 2 years ago | (#37906266)

The problem with that is, if the patented source code is c++, does that mean a Java or Haskell implementation is not covered by the patent? Or another c++ implementation that uses completely different data structures? When is an algorithm or an implementation of an algorithm different enough not to be covered by a patent?

The worst is: the patent offices are not able to answer these questions either. As long as they cannot answer these questions, they should not be allowed to issue software patents, or hardware patents, or perhaps any patents at all.

Re:Yeah, as long as you release the source (1)

gbjbaanb (229885) | more than 2 years ago | (#37906330)

yeah, this is exactly the problem. No-one cares too much about software being patented, as long as its done in a manner that shows you've actually done some work and come up with something new.

That many of the 'software' patents are just vague concepts or pie-in-the-sky ideas is the problem. We need to make software patentable if a working system is submitted to the patent office.

I read once that the patent system was not just to protect the inventor, but society too - as once the patent expired (or the inventor!) then a full blueprint was available for all to use and couldn't be forgotten or lost.

Re:Yeah, as long as you release the source (1)

WaywardGeek (1480513) | more than 2 years ago | (#37906472)

All of my software patents used to come with full source code. They stopped asking for that several years ago. I don't think having source or not makes any difference. If idea is expressed clearly in the body of the patent, a coder in the field not only should be capable of writing it, but in my experience, they typically prefer to write it themselves. It's not easy to get other people to use your software, even when you give them source. I've got maybe 20 open source projects out there, and maybe three or four get any significant use at all, and I doubt anyone looks at my code. The ideas are the important part. Mathematical algorithms simply should not qualify as patentable. It's bad for innovation, as he original patent system creators understood.

Duration is a large part of the issue... (3, Insightful)

Manip (656104) | more than 2 years ago | (#37905964)

While there are a great deal of faulty patents granted, one of the larger problems Software Patents in particular face is the 20 year duration. For an industry which re-invents its self every two or three years, twenty years might have well be two lifetimes worth of work. If the duration was shorter many of the obvious junk patents would have already expired and we would be in a far healthier place.

To solve Software Patents you can't get rid of them, we're already in too deep. But you can shorten the duration substantially and make a series of special courts who's job it is to deal with technical patents (and who employ technical experts). The courts are simply too ignorant to be able to understand what it is they're meant to be deciding. They have no expertise in the software field, or in any other special area (drugs, business processes, etc) but yet we expect these people to use their "common sense" to decide things like if slide to unlock or one-click checkout should be a valid patent.

Re:Duration is a large part of the issue... (2, Insightful)

JasterBobaMereel (1102861) | more than 2 years ago | (#37906138)

The simpler solution is to stop *all* Patents, keep copyright, keep trademarks

Patents were put in place to allow a way for people to disclose their ideas without losing the rights to it, it cut down industrial espionage, and the locking up of new ideas ... I have not heard of a Patent in years that actually discloses anything really new, and they are worded in such obfuscated legalese that it is useless for producing a working device anyway

Ideas are still locked up, just with lawyers rather than by keeping secrets, the same process could be done with copyright, but would allow people to innovate still

Re:Duration is a large part of the issue... (2)

tepples (727027) | more than 2 years ago | (#37906162)

Without the expectation of monopoly rent, how would you finance the discovery of new drugs?

Government funding (2)

Kupfernigk (1190345) | more than 2 years ago | (#37906370)

The sad fact is that the commercial drug companies nowadays focus on what is profitable, not what is useful. Hence their well known lack of interest in vaccines, which work too well, and interest in very expensive anti-tumor drugs which give only a few months of life but whose usage is subject to emotional blackmail.

Medical research, like research into climate change and many fundamental technologies, is something that should always be Government funded to protect it from commercial pressures.

Is the problem not the idea of the patents but... (1)

djsmiley (752149) | more than 2 years ago | (#37905968)

..the way they are applied?

I don't know _enough_ about patents. I'll happily admit but it seems to me if you patented a device, hardware which does a series of sums via some circuits which have a mathematical function to them and then create another device which can do the same sums, but used a different layout of circuits and still comes up with the same result a patent for the first device wouldn't' cover the second device?

However in software you seem to patent the idea of how to do something, and anyone else who does something which looks slightly similar gets sued until they give up.

An argument for hardware not to be patentable (0)

Anonymous Coward | more than 2 years ago | (#37905982)

That's an argument for hardware not to be patentable, not for software to be patentable. As an engineer turned programmer, I say neither should be patentable. Patent monopolies steal from us all. It's time to abolish the whole patent system, and fuck you you fascist theiving bastard if you disagree.

http://www.dklevine.com/general/intellectual/againstfinal.htm [dklevine.com]

All patents suck (1)

peppepz (1311345) | more than 2 years ago | (#37905984)

I think this guy is right. Software patents aren't much more broken than "hardware" ones, it's only that the unjustness of the patent system is more evident when applied to immaterial things.

Personally I put patents in the category of "reverse socialism", that is all those cases in which the free market approach, which is blindly applied when it means firing workers, lowering wages, relocating production to foreign sweatshops, gets suspended when it's time to protect some elite which supposedly can't afford to sustain competition.

Reality check? (4, Interesting)

zmooc (33175) | more than 2 years ago | (#37906002)

I totally agree with what he says. However, he misses the point that's called reality.

Problems that could easily be solved in hardware, would require a description of this hardware. A transistor here, a flywheel there and a plate of metal here in order to achieve X. It's that description that is then patented, not its functional result. Alternative implementations would then not be covered by the patent so anybody that finds a way to achieve X with a piece of plastic instead of metal should not be bothered by it.

That's not what we see in software patent land today; instead of the technical design, the functional result is patented. There are a million ways to implement slide-to-unlock and somehow Apple has a patent on all of them. That's odd, since most of these million ways have nothing to do with the original research Apple has done in order to obtain the patent.

If the same standards for granting a hardware patent would be applied to software patents, I could probably live with them (since in that case there would hardly be any software patents). Now I cannot, especially not when selling software in the USA.

Also, mathematical formulas cannot be patented. Therefore the comparison with mathematics is moot. What can be patented, is the practical use of that specific formula. Also note, the patent Marty Goetz was granted was not a software patent in the sense that we think of it today; his patent was valid ONLY when used on a machine using two tape reels. A pure software implementation would NOT have been patentable. Therefore using this patent as an example of a software patent is misleading; it is not a software patent, it is a regular patent that has part of the solution implemented in software.

Re:Reality check? (1)

gstrickler (920733) | more than 2 years ago | (#37906080)

Apple does not have a patent on "slide to unlock". Their patent includes several specific features including the moving visual slider under the finger as you slide to unlock. It's a pretty specific patent and one that's easy to work around. It's a REALLY bad example to use as an example of a bad software patent.

Re:Reality check? (1)

zmooc (33175) | more than 2 years ago | (#37906154)

I think it's a great example. Whatever the slider does does not make it more or less patentable; it is still just a functional description. This should not be patentable unless the patent concerns a very specific technical implementation. And that's not the case (obviously because any implementation would be too obvious to patent).

For these kins of things, we have copyright laws.

Re:Reality check? (1)

Bill_the_Engineer (772575) | more than 2 years ago | (#37906634)

patents protect both the concept and implementation of an invention. Otherwise it would just be a fancy form of copyright allowing derivative works without compensating the original inventor.

As for the "obviousness" of a patent, most things are pretty obvious when someone else figures it out for you. I think the obvious argument is being a little over used. It's almost to the point of the old "I could had a V8" vegetable juice commercial. For example:

Intermittent windshield wipes seems obvious now, but it didn't prevent Robert Kearns from patenting it. He approached Ford and Chrysler with the idea of installing them on their new cars. Both car companies rejected the idea, but later installed their own version of the intermittent windshield wiper. Even though Ford Motor Company came up with a different method for delaying the wiping motion of the windshield wiper, they lost their case. Chrysler lost later. The other automakers' cases were dismissed because Kearns missed court filing deadlines. The point being that the patent did its job and gave the inventor legal authority to defend his right for compensation, regardless of the methods used by the infringers to workaround the patent.

As for Apple's "slide to unlock" patent, it seems novel to me. I don't recall anybody else using a similar method of unlocking a phone prior to Apple's implementation of it. I also think this is a trivial patent to get so worked over about. There has to be a better way to unlock a cell phone than activating the screen with a home button and sliding your finger across the screen. Just because Apple did it, doesn't mean the Android phones had to follow suit. Nothing prevents Google for making the unlock action Home + Menu Button, or Home + button on the screen, or anything other combination of actions. Personally, I would prefer the two button press method.

Absolutely right (5, Insightful)

TheRaven64 (641858) | more than 2 years ago | (#37906004)

The problem with software patents is not that they are software, it's that the vast majority of them are obvious and they tend to be overly broad. Anyone encountering vaguely the same problem would produce the same solution, or one sufficiently similar that it would be covered by the patent.

The other problem is that patents really fail at their primary purpose: encouraging disclosure. No one looks for algorithms by doing a patent search. People look for published papers, existing libraries, or invent something themselves. Any one of these can end up violating a patent, but without gaining any of the advantages of the patent system.

People campaigning against software patents often get bogged down by assuming that this is something that is limited to software patents. It isn't. Talk to people in almost any industry, and you'll hear the same thing. They either have big cross-licensing agreements that let them ignore all patents and just keep out new people, or they find themselves constantly having to pay royalties for things that they invented independently.

I would have no problem with software patents if they were limited to the scope that the patent office claims: novel, non-obvious, useful. If this happened, I doubt even 1% of current patents would stand up.

Re:Absolutely right (2)

Attila Dimedici (1036002) | more than 2 years ago | (#37906096)

The other problem with software patents vs hardware patents is that if I design a circuit board that is physically different, but generates the same output, the patent on the original does not apply. With software, if the software generates the same output with the same input, it will generally be considered to be infringing on the patent.

Re:Absolutely right (1)

jhhdk (1120433) | more than 2 years ago | (#37906446)

Sorry Sir I respectfully disagree.
Let's assume for the sake of argument, that patents are not always evil.
The areas where patents do the least amount of harm have some things in common:
1) Already have big capital requirements i.e. cost of a patent is low compared to cost of a factory.
2) Products contain few patents.
3) Relatively few competitors (natural consequence of 1.)

Software on the other hand:
1) Low capital requirements i.e. you only need a computer.
2) Products contain possibly 100's of patents.
3) Anyone who records a macro in a word processor or enters a formula in a spreadsheet is potentially liable.

It's depressing that we have to endure the same ignorant drivel that were thoroughly debunked almost a decade ago when we convinced European parliament to reject the CII-directive.

Re:Absolutely right (3, Insightful)

swillden (191260) | more than 2 years ago | (#37906590)

The other problem is that patents really fail at their primary purpose: encouraging disclosure. No one looks for algorithms by doing a patent search.

Mod parent up.

I've been saying this for a long time; the purpose of patents is to encourage disclosure so that others will be able to find and use your ideas (after paying a license fee -- that's the motivation to disclose). So the clearest test of whether or not the system is working is the degree to which working professionals utilize the patent database as a resource for solving their problems, and by that standard it's hard to imagine how the system could be a greater failure. Not only do software developers not mine the patent database for ideas, they are told by their attorneys to avoid looking at patents. Why? Simple: Because everyone recognizes that there is nothing of value to be found, and looking only creates risk because if you find out something you're doing is patented then you have to stop, or risk treble damages for willful infringement.

The bar for patents is so low, and the number of non-obvious patents so few, that there's no value in searching for patents. This makes it abundantly clear that the patent system has become a mechanism for locking up ideas, not for disseminating them, which means it has utterly failed its fundamental goal.

Patent reform is badly, badly needed, because right now the system we have is actually worse than nothing. I think a good patent system would be of value, but what we have now actively discourages innovation and squelches progress, at least in the software realm.

Improvements (2)

Nerdfest (867930) | more than 2 years ago | (#37906026)

The big difference is that with a hardware patent, you can still do the same thing as the patented implementation but in a different (ind ideally, improved) manner without infringing on the patent. With software, the idea itself is patented, meaning you can't even come up with a vastly superior implementation. In my view, this (along with the fact you don't even seem to have an implementation to get the patent) is the most important part of why software patents are a roadblock to innovation.

Software is fundamantally different from hardware (0)

Anonymous Coward | more than 2 years ago | (#37906030)

How many components does a patentable sub-components does a piece of typical consumer hardware have? A dozen? A few dozen? Take an stereo amplifier for example. There are filters, converters, amplifiers, knobs, buttons, a power supply, and a handful of other parts. In theory, you can pay a license fee for each component and still make a profit.

A piece of software, on the other hand, has thousands of patentable pieces. There is no feasible way to pay a license far each and every one and still be able to create a product that you can profit from and run a business off of.

It's an economic necessity that we treat software patents differently from hardware patents.

Patent? no my son; it's not a patent (1)

EasyTarget (43516) | more than 2 years ago | (#37906034)

Circuits; code; cars.. they can -all- be reduced to a series of mathematical functions. But that means nothing and does not make them worthy of being patentable. Patents should only protect the big ideas; ideas such as making transistors on silicon; making wheels with inflated pneumatic tubes on them, using a quartz crystals to make tuned circuits (to use some very old examples).

The reason is that 99.9% of our modern 'patents' do not represent any real innovation; they only represent iteration; finding different ways to do something that has been thought of already. The top level ideas are the innovative steps that deserve to be patented; very little else is.

Eg; consider the concept of a patent on: 'this is how to search a relational database'. In reality the only two patentable ideas there are the originals of 1) a relational database and 2) searching a database; everything else, each stepwise 'improvement' on them is just an iterative step that maybe deserves copyright protection, but nothing more.

This is why copyright exists. (1)

zerofoo (262795) | more than 2 years ago | (#37906040)

Software is no different than any other written material. These writings are expressions of ideas - nothing more. Software should be protected by copyright and not by patents.

Things or processes that exist in the natural world, including the mathematics to describe those things or processes should not be patentable. Patents should be reserved for physical devices that are unique and non-obivous to someone skilled in the art.

At this point in our human history, patents should be extremely rare, granted only to new things - not evolutionary improvements of existing things.

Yet another person who does not get it. (2)

robbak (775424) | more than 2 years ago | (#37906044)

The point is, not that software can be reduced to maths, but that no reduction is necessary. A software program is maths. Already. A programming language is simply a language for writing down maths. It just happens to be one which computers can understand too.
These are simple statements of fact. Like global warming, they are facts that corporations just want to ignore.

he has a point... (2)

spottedkangaroo (451692) | more than 2 years ago | (#37906056)

... apparently circuits should not be patentable. Basically anything that's obvious or just the next logical step (even if clever) should not be patentable. So if he's right then we should see circuit design as just another program and get rid of those patents too.

Who says what's obvious (1)

tepples (727027) | more than 2 years ago | (#37906284)

Basically anything that's obvious or just the next logical step (even if clever) should not be patentable.

This is already the law, but examiners have historically had a poor time judging obviousness.

The REAL debate to have (2)

DoofusOfDeath (636671) | more than 2 years ago | (#37906078)

Let's grant, for the sake of argument, that software patents should be no different than regular patents.

I want proof that patents at all are a net benefit to society. Could they possibly be worth the damage to our freedoms, and our pace of innovation?

Re:The REAL debate to have (0)

Anonymous Coward | more than 2 years ago | (#37906424)

Proof: Look at the Pharmaceutical Industry (I know there are other moral issues involved in this). It takes a company somewhere in the neighborhood of 500 mil USD to make a new drug for the market. If those products were not protected by patent law then the company who put down the R&D costs would not be able to make their money back and the drug would never have been made.

Re:The REAL debate to have (1)

PPH (736903) | more than 2 years ago | (#37906550)

Or the FDA would clean up its approval process and the cost would be brought down.

The problem is specificity (1)

spectro (80839) | more than 2 years ago | (#37906088)

The issue with the way software patents are enforced currently is that, unlike a physical invention, you can't come up with a completely different approach to implement the idea and not violate it. In the physical domain, clean room reverse engineering is allowed, but software patents have been allowed to be so ambiguous your implementation is probably covered.

I think software patents could be fine as long as they are specific to a SINGLE IMPLEMENTATION of an algorithm or idea. If your patent was implemented in C++, then the same algorithm implemented in Perl or even COBOL SHOULD NOT BE COVERED.

Under this concept, the way to invalidate patent claims is to simply show in court a different implementation. This would take out the teeth out of patents, remove lawsuits based on vague claims that might or might not be covered while still "promoting the arts" since now you can both license your invention and allow others to improve on it.

becoming GOD (1)

kubitus (927806) | more than 2 years ago | (#37906146)

you shall not....!

-

when algorithms become patentable/protectable, the next will be recipes etc....

.

THOU SHALL NOT ....!!!!

The problem is not software patent per se. (2)

Kristian T. (3958) | more than 2 years ago | (#37906158)

Most software patents handed out theese days, are about the first solutions that entered the head of the first person trying to do something. Unless the problem can be given to (in this case) a reasonably competent developer without him coming up with the same solution - the inventor is not giving anything of value to the public in return for his monopoly.

A few software inventions like: arithmetic coding and the RSA cryptosystem pass this test - whereas things like the FAT filesystem patents, and most other software patents, like the currently popular ending in: "...on a mobile device" are things that would have been made and disclosed to the public if they matter at all.

Re:The problem is not software patent per se. (1)

serviscope_minor (664417) | more than 2 years ago | (#37906354)

and the RSA cryptosystem pass this test

Remember that exactly the same algorithm was invented (in secret) by someone else 5 years prior to the publication of RSA. In other words, it is very debetable that it was a good candidate for patenting since someone else came up with exactly the same thing.

Software should be patentable (1)

gstrickler (920733) | more than 2 years ago | (#37906168)

Software is not just math. Software is an embodiment of a process. The programmer must reduce the process to a specific set of instructions, which eventually end up as a set of logical operations and data movements/transformations. However, it took a whole lot more than math to create the process.

Saying software is just math is a gross oversimplification of the facts. It's comparable to saying all engineering is just math, writing is just pressing keys, and music is just a series of notes. By that reasoning, digital books, music, pictures, and video are just data, and all the engineering that went into creating any product is just math, therefore, nothing should be patentable or copyrightable. That logic completely ignores the creativity, art, knowledge, assumptions, engineering, and inventiveness that went into creating the product. It's completely flawed logic.

For example, video compression is not just math, you have to determine what data can be removed with the least visual/audible impact, invent new ways to encode that information, invent ways to perform motion compensation for the encoder. For the decoder, you need to invent ways to skip detail or frames when playing back on devices that aren't fast enough to decode and play back all the data in real time, all while keeping the audio and video synchronized. And those playback features will affect the design of the encoder and format of the data stream. That's not just a mathematical process, it involves understanding visual and audio perception, and a bunch of other non-mathematical processes.That's a whole lot more than just math.

So, even though it is eventually reduced to a set of logical and mathematical operations, the software is the embodiment of much more than math. All the work is in converting an idea into a process, then reducing that process to a set of steps that can be executed as a series of mathematical and logical operations that will execute in the necessary time window on the available computer equipment. In some cases, such as the video encoding example above, the process should be patentable, even if it's sole embodiment is in software.

I'm not defending all software patents, many of them are bad patents. But when software is the embodiment of an invention, that invention should be patentable even though there is no "physical" embodiment of the invention. Copyright is not the appropriate type of protection for such an invention, patent is. The specific software might also be covered by copyright, but the novel and useful process embodied in the software should be covered by patent.

And, I would support a shorter term for patents that have only a software embodiment, perhaps 10 years. But what happens when someone creates a dedicated purpose piece of hardware for that process, does it then extend to a 20 year patent? That's something to work out before seriously pursuing shorter terms for software based patents.

Re:Software should be patentable (1)

Zironic (1112127) | more than 2 years ago | (#37906268)

It takes a lot of work to create advanced mathematical equations. Saying software is just Math is not an oversimplification, it's simply that you seem to underestimate Math.

Re:Software should be patentable (1)

Kristian T. (3958) | more than 2 years ago | (#37906368)

Sure... it's just that for every mpeg 1 layer 3 patent, ther's so many inventions where the the only novelty is adding: "on a mobile device" to the end of the list of claims. When, in that context, it comes down to all or nothing regarding software patents - we're better of choosing nothing.

As long as patent offices rubber stamp anything not already patented, they're causing more harm than good. The software business has been doing so great without patents, that it's almost certain to do worse with them. Currently software patents are used mostly to delay the enevitable disruptions in a young a turbulent sector of the economy.

What world is he living in? (3, Insightful)

Zironic (1112127) | more than 2 years ago | (#37906188)

"The software products industry is competitive and needs patent protection as much as any other tech industry. Those software doomsayers who say software is just ideas, mental processes or mathematics would change their mind if they examined the different phases of the life cycle of a software product."

Last time I checked the people that were opposed to Software Patents where almost exclusively Software Engineers, since almost no one else is aware the issue even exists.

Is he trying to say the Software Engineers do not understand their own product?

The software patent "frame" is already broken (1)

Required Snark (1702878) | more than 2 years ago | (#37906192)

His position is so abstract that it does not reflect reality.

What is the hardware equivalent of Bezos' One Click patent? A binary switch? With software/business patents the way they are, you can patent trivial features and then extract fees or at least gum up the works for actual innovation. Do hardware patents allow someone to patent a set of logic gates and then scan all existing designs for that subset of logic? That would be the equivalent situation.

Do hardware designers have to not use obvious logic design patterns because some not very bright examiner said they belong to someone else? Even CPU instruction sets are not patentable. I think that you can copyright an instruction set representation (the human readable form), but not the bit patterns and execution results. (This may have changed since I was involved in this area a long lime ago.)

So the guy who started the current mess is defending his bad idea. Why am I not surprised? Has he any other real accomplishments, or is this his only claim to fame? As far as I can tell his only "innovation" was dragging software down to the level of scummy lawyers.

You don't patent something "in hardware" (1)

Hentes (2461350) | more than 2 years ago | (#37906286)

You patent a hardware implementation of an idea. Software implementations are already protected by copyright. Software patents are being used to patent the idea itself. This is not how patents are supposed to work.

This is a very biased article full of half-truthes from a man who thinks that the bigger half of the world are "anti-patent zealots".

A basic issue (1)

Rambo Tribble (1273454) | more than 2 years ago | (#37906362)

Even school children are taught about patents, that a patent protects the execution of an idea, not the idea itself. I've yet to see a software patent that passes this test.

Another little detail. (0)

Anonymous Coward | more than 2 years ago | (#37906496)

It is one thing to warrant a patent to ensure people can amass the resources to keep on working -- or enterprises, but this is very debatable, since an enterprise should be able to take on risks, by definition, and not depend on government help.

It's another thing to warrant such right only to discover the next day/month/year anyone could do that effortless -- and it is artificially prevented from doing it because of a patent: this is the proverbial "shooting the foot".

If anyone spent 10 years and 3 million USD on something a 7-year old kid solves in fifteen minutes, it is wrong to punish the kid.

And ideas cannot be patented, get over it. Change your line of business, if you need. You can move the entire US DOJ and spend billions of dollars, and yet it won't make a difference on Bali. Have a nice day.

PS: The above is my opinion only, unrelated to anyone else.

Techrights has a great rebuttal (1)

walterbyrd (182728) | more than 2 years ago | (#37906636)

Shocker: Man With First Software Patent Defends Software Patents

Well, using other people’s knowledge and work. But let’s disregard for a moment the fact that anything he ever created built upon other code. He goes on to saying something which in no way contradicts the fact that software is mathematics and in fact reinforces this fact. For example: “Highly skilled personnel are employed in these companies and many have advanced computer science degrees, including PhDs. And because of their complexity, many programs are written using software engineering disciplines.”

Or mathematics? And equations? Seriously, scientific programming is all about formulating rules and applying them in code. Do we want a monopoly on rules that are immutable? “When these programs are inventions,” he claims (whatever “invention” actually means), “patent protection is important to help protect these companies’ investments.”

http://techrights.org/2011/10/31/martin-goetz-mistakes/

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