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Apple-Motorola Judge Questions Need For Software Patents

Soulskill posted more than 2 years ago | from the you-boys-go-on-home-now dept.

Patents 372

imamac sends this quote from a Reuters report: "The U.S. judge who tossed out one of the biggest court cases in Apple's smartphone technology battle is questioning whether patents should cover software or most other industries at all. ... Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug. Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets — a benefit they would still get if there were no software patents. 'It's not clear that we really need patents in most industries,' he said. Also, devices like smartphones have thousands of component features, and they all receive legal protection. 'You just have this proliferation of patents,' Posner said. 'It's a problem.' ... The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it."

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Oblig: TED Talk (5, Interesting)

scorp1us (235526) | more than 2 years ago | (#40562949)

Re:Oblig: TED Talk (0)

Serious Sandwich (2678177) | more than 2 years ago | (#40563087)

Big pharma should be broken up too. World would be much better if everyone had a supply of cheap medication. Especially those in non-western poorer countries. But US bullies the world and lets other citizens die because they're not American.

Re:Oblig: TED Talk (1)

ZeroSumHappiness (1710320) | more than 2 years ago | (#40563137)

What's your proposal for funding drug research?

You're probably right in that the current method is not perfect, but I could come up with a number of worse systems.

Re:Oblig: TED Talk (5, Insightful)

CanHasDIY (1672858) | more than 2 years ago | (#40563199)

What's your proposal for funding drug research?

Funded via NIH and public universities... in other words, exactly the way we fund it now.

The difference would be, the public (who already pays for the research) would be the direct beneficiaries of the research, instead of pharmaceutical companies getting to claim a monopoly on what should, by all law and rights, be public domain.

Re:Oblig: TED Talk (1)

ZeroSumHappiness (1710320) | more than 2 years ago | (#40563235)

You're under the impression that the private pharmaceuticals do nothing by way of funding the drug discovery process?

Re:Oblig: TED Talk (4, Insightful)

Shompol (1690084) | more than 2 years ago | (#40563431)

The same pharma companies that spend over 50% of budget on marketing and advertising? Don't you think it is a little wasteful?
PS: No, I don't need to provide a link, google it.

Re:Oblig: TED Talk (4, Insightful)

ZeroSumHappiness (1710320) | more than 2 years ago | (#40563743)

It's not necessarily wasteful if it grows the budget by more than it costs.

For example, let's say I have a small company and my non-marketing costs are $10k a year (example numbers here.) Furthermore, let's say it'll cost me that $10k a year no matter whether I sell nothing or sell 100 units. (Actual pill-by-pill production is cheap. Setting up the factory is expensive. Getting a drug approved is expensive. Finding a drug to get approved is expensive.)

If I spend $2k in marketing maybe I can sell $8k in product, providing the drug to 80 people a year. Okay, sure, not terrible.
Maybe if I spend $4k in marketing I sell $10k in product, providing for 100 people.
Maybe if I spend $10k I sell $20k in product, proving for 200 people.

Is that $10k in marketing "a waste"? Well, if I spent half as much I'd make less profit. If I spent half as much I'd help fewer people. If I spent half as much I'd have less profit to put into creating new drug lines.

I understand where you're coming from, the idea that marketing is a drain on the economy since it produces nothing, but for an individual company it could be the difference between new drugs being developed or the company going bust.

I think what you're actually proposing is a pure collectivization of drug discovery. The problem I see with that is how do we then ensure we culture the right drugs? Drug discovery is hard. Immensely hard. Failures are often and expensive and government is poorly equipped to make entrepreneurial decisions. That's why we currently rely on private companies to make the decisions on who is a good research and who is a bad researcher when a company in total only makes two or three really profitable drugs every decade. We can allow those companies to fail if they can no longer produce. It's a lot harder to let a government program "fail" like that.

Re:Oblig: TED Talk (3, Insightful)

ozmanjusri (601766) | more than 2 years ago | (#40563829)

It's not necessarily wasteful if it grows the budget by more than it costs.

For healthcare, yes it is.

Think about it.

Re:Oblig: TED Talk (0)

Anonymous Coward | more than 2 years ago | (#40563455)

You're under the impression that the private pharmaceuticals do nothing by way of funding the drug discovery process?

They do something. They get to decide what direction to push it in. Curing diseases mostly afflicting the poor? Not profitable enough. Curing imaginary diseases that everyone has, like restless leg syndrome? Ca-ching!

Re:Oblig: TED Talk (1)

Joce640k (829181) | more than 2 years ago | (#40563647)

Yep. One of the reasons there's not much research into new antibiotics is that it's not very profitable. Big pharma wants to make pills that people need to take every day for the rest of their life, not pills that people take for eight days once a year or so.

Re:Oblig: TED Talk (3, Insightful)

PopeRatzo (965947) | more than 2 years ago | (#40563637)

You're under the impression that the private pharmaceuticals do nothing by way of funding the drug discovery process?

Pretty much. The heavy lifting is done for them and the research they do is heavily subsidized by taxpayers.

And, their research is entirely in high-profit drugs that may or may not be important for human health.

Also, look at how often they get it wrong. Huge money spent researching a non-steroidal anti-inflammatory that is less effective than Ibuprofen (whose patent has expired) and happens to give you a heart attack.

I should disclose here that I am alive today pretty much only because I was involved in a drug trial in the 1990s due to a nasty type of lymphoma. I'm completely better, no recurrence in almost 16 years now. I really tried to find out the provenance behind the drug I was given: almost entirely funded publicly, and my care was given at a non-profit hospital.

I was born during a time when almost all medical care was done on a non-profit basis. People got paid, but you do get to be paid in a non-profit setting. Doctors lived really nice, upper-middle class lives. Best house on the block and that sort of thing. It all went haywire when the profit motive took over everything in medicine.

Oh, and the increase in life expectancy that has occurred during my lifetime happened mostly before the for-profits took over.

Re:Oblig: TED Talk (4, Insightful)

TheGratefulNet (143330) | more than 2 years ago | (#40563275)

pharma is TOO IMPORTANT to be left to money-grubbing capitalists. its like infrastructure, it should be maintained by the gov who will be a little less of a pain-in-the-ass than the pharma companies.

we have the gov do things that we rely on for common good. pharma should be one of them.

the idea of profiting from others' pain is so WRONG, I can't even get my head around why we allow such evil practices.

at some point, we should think about how we can convert this 'business' back into the charity and caring set of goals it was SUPPOSED to be in the first place.

a lot of things should have profit taken out of it.

profit is evil. more and more, I'm seeing how our 'money, at all cost!' civ is just entirely designed wrong.

"sorry, you have to suffer. our prices are more important than your pain relief"

unbelievable. I wish there was a hell; so that the pharma (and similar) ceo's could go to 'retire' when they die.

Re:Oblig: TED Talk (5, Interesting)

cdecoro (882384) | more than 2 years ago | (#40563595)

the idea of profiting from others' pain is so WRONG, I can't even get my head around why we allow such evil practices

Profit from other people's pain? The pharmaceutical companies that make the drugs I take every day, Merck and Pfizer, are profiting from RELIEVING my once-substantial, and now nearly non-existant pain. I am thankful every day that we have companies committed to such "evil" practices.

Re:Oblig: TED Talk (0)

Anonymous Coward | more than 2 years ago | (#40563279)

You think all the research that big pharmaceutical companies do is funded by NIH and public universities? I don't think you realize how expensive it is to bring a drug to market in the US and get FDA approval.

Re:Oblig: TED Talk (1)

NatasRevol (731260) | more than 2 years ago | (#40563585)

The problem/cost isn't making the drug, it's getting it to market/passing human tests.

Re:Oblig: TED Talk (1)

drinkypoo (153816) | more than 2 years ago | (#40563601)

Let us also note that Big Pharma spends vastly more on advertising (at least in this country) than on R&D. The massive cost to bring a drug to market? Please. The cost to bring a new drug to market is significant, but pales compared to the amount spent advertising it, while the cost to bring a new form of an existing drug to market is roughly jack shit, because of FDA regulations which reduce testing for derivatives of existing molecules. You only have to do a short study to prove that it doesn't kill substantially more people than the last version. You don't have to prove that it is even as efficacious as the last version, either. Then you advertise the shit out of the new one while publicizing the faults of the old one (maybe even run an ad about it on the teevee for those who were harmed by the old drug) so that nobody wants it even though it's available cheaper because it's old enough to be generic.

Bringing a new drug to market is expensive because the laws say so, and who buys the laws? Yeah.

Where did OP say no funding? (0)

Anonymous Coward | more than 2 years ago | (#40563211)

Why should breaking up Big Pharma mean no funding the way it currently happens?

Where do you get the idea that new methods of funding will be required to be discovered if we break up big pharma?

Re:Oblig: TED Talk (1)

scorp1us (235526) | more than 2 years ago | (#40563673)

Fundamental Patent Reform. For any patent to be granted a list of expenses in developing the patent is submitted. Then they have patent protection for 10x that in revenue. They will submit an annual report, and any kind of lying will have the patent revoked. The people who want to use the patent will verify the reports to find any falsification. For devices that integrate multiple patents they are allowed to be summed accordingly.

This way, there is still incentive to do the R&D, because you'll get multiples of your investment back. But the wold gets your patents potentially sooner. This not only fixes drug patents but software patents too, as most software patents would only costs thousands to develop and would get paid 10x back in a very short time.

Re:Oblig: TED Talk (5, Insightful)

codewarren (927270) | more than 2 years ago | (#40563185)

You are ignoring the counter argument that it was patents which allowed the US companies to create medications in the first place. Medications that are cheap today now that patents have expired, only existed because the US made it profitable for companies to develop them in the first place.

(I'm not saying this is definitely true, just that you've acted as if the argument doesn't exist and "making drugs cheap" is an obvious solution)

Re:Oblig: TED Talk (0)

silanea (1241518) | more than 2 years ago | (#40563215)

[...] only existed because the US made it profitable for companies to develop them [...]

Which leads me to question whether leaving the production of medications to companies is a smart idea.

Re:Oblig: TED Talk (1)

ArsonSmith (13997) | more than 2 years ago | (#40563511)

All drug production should come from large heard of antelope, or from a single chinchilla in a tutu.

Re:Oblig: TED Talk (4, Insightful)

Impy the Impiuos Imp (442658) | more than 2 years ago | (#40563339)

This is exactly right.

The choice isn't between new expensive medicines and new cheap medicines.

It's between new expensive medicines and no new medicines at all.

If you slow technological development by eviscerating the profit motive (imagine the idiocy of applying it to computers, smart phones, and Internet tech 20 years ago), with medicine, people die who otherwise wouldn't.

20 or 50 years go by, and the tech lags further and further behind where it otherwise would be. This causes increased numbers of deaths who wouldn't otherwise die, like compounding interest.

Had the US been like Europe the past 70 years (and I'm not talking just medicine, but general business unfriendliness) then would the US's production (half of all new medicines) been like Europe's instead?

And you'd stand here in 2012. Happy with your 1980-level "free" medical tech?

If your ears burn over this, they should. You could already be killing people like a major war does. Had Europe spit out medicine like the US does during this time, maybe we'd have 2025 or 2035-level medical tech, and more lives would be saved by the millions each year.

You just can't shove these hypothetically saved lives in front of a camera, the way you can with lives lost due to an expensive medicine. But there's no comparison in the numbers, it's not even close.

Re:Oblig: TED Talk (0)

Anonymous Coward | more than 2 years ago | (#40563397)

Indeed, if Alexander Flemming had not been able to exert direct and exclusive control over the use of penicillin and if he had not been able to preclude others from using the drug without first gaining a profit for himself then what kind of world would we be living in today? I shudder to think...

Re:Oblig: TED Talk (0)

Anonymous Coward | more than 2 years ago | (#40563789)

However, penicillin would probably never pass FDA human drug tests today...

For better or worse.

Re:Oblig: TED Talk (1)

drstevep (2498222) | more than 2 years ago | (#40563617)

And so many of these products are still extremely effective. Some, when you ignore biased studies, still more effective than the newer, patented meds that replace them.

Pharma pushes new meds over old ones because they are patented and more lucrative, not because they are better. (Yeah, a gross generalization, but true in many cases.) Pharma takes old meds about to expire, performs a minor tweak or a new study, and gets a new patent/patent extension on what is essentially the same medicine. No new development, just efficacity studies on the new use. I know someone who took viagra (effectively) (patented in 1996) for pulminary hypertension. $1500 a month (thank you big pharma). By the way, ED Viagra was due to expire in 2012, but with the "new" pulminary hypertension effect, the patent now expires in 2020. Who knows what use they'll find for it in 2019?

Here are some questions: WHY is it so expensive to bring a new drug to market? A lot is currently consumed in paperwork and trials. How effective are these trials? Can they be made more effective? If we reduced the trial set to half of what it is now, how much additional risk would there be? 5%? 10%? From a societal standpoint, would the added risk be offset by the impact of increased availability and improved general health? Would the risk of 100 additional deaths be offset by making a drug more available to 1000 additional people? Should cheaper/faster drugs be made available if people agree to limited liability on lawsuits (the Vioxx effect)?

Re:Oblig: TED Talk (0)

Anonymous Coward | more than 2 years ago | (#40563663)

The problem is the US funds the worlds research. If Europe and Canada paid what we did, it wouldn't be such a big deal. Opening up the drugs sooner would lower US costs. I get why africa can't afford to pay full price and i support helping them out. Europe is bullshit.

Re:Oblig: TED Talk (1)

JonahsDad (1332091) | more than 2 years ago | (#40563429)

But US bullies the world and lets other citizens die because they're not American.

I disagree. First off, big pharma is fully willing to let plenty of Americans die (if they can't afford their medication). Big pharma is also fully willing to help plenty of non-Americans pay for the medication they need. It is much more money-related than citizenship related.

My patent: Swipe with nose to unlock. (0)

Anonymous Coward | more than 2 years ago | (#40563143)

The patent office should be manned by qualified(?) staff, who can deny such use less patents. Stone-age man knew to swill the bar to bolt the door.

Re:Oblig: TED Talk (0)

Anonymous Coward | more than 2 years ago | (#40563433)

I think we should just try it: legislate a 10 year moratorium on the approval and enforcement of software patents. See if the effects are actually detrimental or beneficial.

Re:Oblig: TED Talk (2)

bfandreas (603438) | more than 2 years ago | (#40563797)

Wow, thank you. I didn't know this one.
It's a really humbling day when somebody from the fashion industry has to explain the tech and media world why copyright doesn't actually achieve what it was supposed to achieve.
Patents at least don't last forever. But they are very very silly at the moment as evidenced by the stupid little rent seeking lawsuits by Apple.

One with a clue, ten thousand to go (2, Insightful)

Anonymous Coward | more than 2 years ago | (#40563005)

Why does it need one veteran specialist to see that broken is broken? Everybody else still considers the courts to be, well, like tennis courts. A game is played according to arbitrary rules, and the best specialists win.

What do we need engineers for? The courtrooms are where it is decided who is innovating.

Re:One with a clue, ten thousand to go (2)

Serious Sandwich (2678177) | more than 2 years ago | (#40563113)

How is tennis game won by specialists? A good tennis player is a good tennis player. Sports really takes skills. It really does. Sports is amazingly difficult career and something "engineers" and geeks don't see. And don't get me even started on the psychological aspect of having the necessary coping skills to be a celebrity and always on spotlight.

Re:One with a clue, ten thousand to go (1)

jeffmeden (135043) | more than 2 years ago | (#40563173)

And don't get me even started on the psychological aspect of having the necessary coping skills to be a celebrity and always on spotlight.

Sounds good. 99% of celebrities haven't gotten started on coping skills either.

Re:One with a clue, ten thousand to go (1)

Fwipp (1473271) | more than 2 years ago | (#40563353)

Being a specialist isn't a bad thing, but asking a specialist in astrophysics to authoritatively decide the relative merits of various Baroque music compositions is.

Speachless. (0)

Anonymous Coward | more than 2 years ago | (#40563013)

I'm aghast at what this judge is suggesting.

But similarly, any such finding will not be allowed to stand as everyone in IT (IBM, HP, Oracle, etc) has big money wrapped up in patent applications for software.

And that's not to forget all of the engineers that work at said companies that receive a bonus for each patent they successfully lodge.

Re:Speachless. (0)

Anonymous Coward | more than 2 years ago | (#40563129)

I feel like you are using a very fringe case of aghast, or don't know what it means

please clarify

Re:Speachless. (1)

Anonymous Coward | more than 2 years ago | (#40563159)

"speachless"? Like, there's a fruit called a speach, and you have none?

He volunteered... (5, Insightful)

Gideon Wells (1412675) | more than 2 years ago | (#40563015)

On one hand, I agree with him. On the other, we have a judge who volunteered apparently just to make a stand in this case. How long before "receptive" judges start volunteering to argue for the other side...

Re:He volunteered... (3, Informative)

Anonymous Coward | more than 2 years ago | (#40563409)

Not quite... if you RTA fully, you'll find out he only registered his interest in any cases involving patents with the lower courts, and the judge that was assigned the case requested to transfer it over to him, which he accepted.

So, no, he didn't get to rummage around in the bin for this one. It was 3 interlocking pieces:

1) The judge from Wisconsin the system assigned the case to knew (or was informed) of Posners interest in patent cases and asked to transfer it to him.
2) Various pieces of judicial administration machinery allowed the transfer.
3) Posner had to accept the transfer in his existing docket schedule.

Re:He volunteered... (5, Insightful)

WillDraven (760005) | more than 2 years ago | (#40563467)

There is a bit of a difference between "I'm taking taking this persons side" and "the fact that you're both in court over this at all is stupid."

No software patents! (4, Insightful)

Infiniti2000 (1720222) | more than 2 years ago | (#40563021)

This guy, Richard Posner, is my new hero.

Re:No software patents! (0)

Anonymous Coward | more than 2 years ago | (#40563139)

This guy, Richard Posner, is my new hero.

My words exactly! Strange burst of sanity seen lately (EU killing ACTA, Slide unlock patent rejected in UK etc)!

Re:No software patents! (0, Troll)

slashmydots (2189826) | more than 2 years ago | (#40563195)

I hope Richard Posner personally rips off software that you took years to write and rebrand it with his company's name then out-markets you so you go bankrupt.

Re:No software patents! (2, Interesting)

Anonymous Coward | more than 2 years ago | (#40563337)

software is still covered by copyright and licensing agreements.

It is one of the very few places where IP laws of different types overlap.

Re:No software patents! (3, Informative)

tangent3 (449222) | more than 2 years ago | (#40563355)

Copyright laws still exist even if software patents go away.

Re:No software patents! (3, Insightful)

w_dragon (1802458) | more than 2 years ago | (#40563357)

That would be a copyright violation, which has nothing to do with patents. Unless by 'rips off' you mean 'reimplements without access you my source code', in which case I'm not seeing the problem. Marketing is part of business, and if your business can't do it, even with a significant first-mover advantage, why should someone else not be allowed to compete with you?

Re:No software patents! (4, Insightful)

jpstanle (1604059) | more than 2 years ago | (#40563387)

If he "rips it off" then he is violating copyright protections. If he copies the look and feel of the software with the intent to deceive or confuse the customer, then there is probably a trademark violation. If he just duplicates the functionality of the software, well, that's just competition. Deal with it.

Meh (4, Insightful)

Greyfox (87712) | more than 2 years ago | (#40563079)

I've seen some software things done that were truly patent-worthy. I've seen way - way more obvious lame crap. Overall I'd say they slow progress down more than they help it. Imagine what would have happened if someone had patented quicksort or some of the design patterns. The LZW algorithm that made GIFs inaccessible until the late 90s was bad enough.

Unfortunately, I don't see the current state of affairs changing anytime soon. There are too many people invested in the current system, and campaigning on a platform of IP reform isn't likely to gain much traction with the public at large, at least not without a LOT more *AA lawsuits. I'm sure the *AA realizes this and keeps its lawsuits fairly discreet and under the public's pain threshold, while they work on conditioning people that copying is theft.

Re:Meh (4, Insightful)

betterunixthanunix (980855) | more than 2 years ago | (#40563135)

I've seen some software things done that were truly patent-worthy

Except that mathematics is not patentable, and we has fundamental results about software being a form of math:

https://en.wikipedia.org/wiki/Curry-Howard_Isomorphism [wikipedia.org]

So why make apologies for software patents? Either we stop trying to uphold the previous principles that made math unpatentable, or we stop giving out patents on math that is expressed as software. Otherwise we just have the mess that we see today.

Re:Meh (0)

Anonymous Coward | more than 2 years ago | (#40563221)

So the slide-to-unlock patent is actually a math patent?

Please.

Re:Meh (1)

Anonymous Coward | more than 2 years ago | (#40563359)

as touchpos->lim(unlockpath), probability(cat)->0

Re:Meh (1)

WillDraven (760005) | more than 2 years ago | (#40563571)

Well, it is pretty much using a user interface to increase a value until an upper boundary is reached...

Re:Meh (2)

Shompol (1690084) | more than 2 years ago | (#40563725)

if X is position of the slider in the interval [1..100], and Y (Boolean algebra) stands for "unlocked", then Y(X) = (X > 99)
Yes, software is math all the way

Re:Meh (1)

Anonymous Coward | more than 2 years ago | (#40563729)

The "slide to unlock" patent has prior art in physical switches. If Apple patented an algorithm that improved detection of a finger on top of a slide switch that would be mathematics patent, but a genuine improvement on the state of the art. The patent system was designed to protect this.

What Apple actually patented was the concept of a slide switch, but wait for it, one that's on the screen of a mobile phone. But they didn't invent switches, touchscreens, finger detection, or mobile phones. What we need to stop is "pre-existing business model, but on a computer/internet/web browser/wireless/mobile phone" because they aren't innovative, they're exploiting a broken and corrupt patent and court system for the purposes of monopolization.

Re:Meh (2)

Dragonslicer (991472) | more than 2 years ago | (#40563529)

Except that mathematics is not patentable, and we has fundamental results about software being a form of math

Atoms aren't patentable. We know that machines are just a collection of atoms. Therefore, no machine should be patentable.

There are several good arguments for why software patents do not achieve the goals that the patent system is supposed to have. "Software is just math" is not one of them.

Re:Meh (0)

Anonymous Coward | more than 2 years ago | (#40563207)

Link to prove your claim or go home....

One judge down, how many more to go? (0)

Anonymous Coward | more than 2 years ago | (#40563109)

Now if only more judges could see the light of day with how much this is hindering innovation. Next on the list is the absurd patents on math equations like what eharmony was granted.

not a fan of... (5, Interesting)

ganjadude (952775) | more than 2 years ago | (#40563131)

patents, but what about a compromise? What if software patents and electronic patents were only valid for like 2 years, that in the computer world is more than enough time for you to recover your research money without hampering the development of future tech. I would prefer none but I think this would be a fair compromise.

Re:not a fan of... (0)

Anonymous Coward | more than 2 years ago | (#40563229)

Two years? It sounds like you have not worked for many start ups. I don't think that software patents should exist but let's not create an alternative based on false information.

Re:not a fan of... (3, Interesting)

Zaphod The 42nd (1205578) | more than 2 years ago | (#40563739)

I hate software patents and I think they're entirely unnecessary. As he said, being first to market is enough.

But I absolutely agree, if we're going to stick with them, a term limit of like 4 years on software patents would go a LONG way.

As much as I agree, that's not the task of a judge (4, Insightful)

captainpanic (1173915) | more than 2 years ago | (#40563133)

A judge should check whether someone acts within the limits set by the law. A judge shouldn't be publicly trying to change the laws, just like a politician should not try to get involved in a court case to get someone convicted.

Still, I agree that our patent system is over-used, and it seems that it often inhibits innovation instead of facilitate it.

Re:As much as I agree, that's not the task of a ju (5, Insightful)

Anonymous Coward | more than 2 years ago | (#40563283)

Actually he is doing what a Judge should do, he is examining whether software should fall under patent law. This examination and interpretation is under the purview of the judicial branch.

Re:As much as I agree, that's not the task of a ju (1)

captainpanic (1173915) | more than 2 years ago | (#40563581)

If you put it like that, you have a good point (sorry, can't mod you up).
I read it as if the judge proposed to change the law so that software no longer falls under the patent law.

I read the article again, and it's still not clear to me which of the two is the case here.

Re:As much as I agree, that's not the task of a ju (1)

sanosuke001 (640243) | more than 2 years ago | (#40563295)

In his defense, if a lot of these patents seem overly obvious (slide to unlock on a TOUCH device? c'mon...) then he should be throwing these lawsuits out.

Re:As much as I agree, that's not the task of a ju (2)

kaizendojo (956951) | more than 2 years ago | (#40563341)

The judge is not publicly trying to change anything, unless you can show evidence to the contrary. He is merely giving his higly qualified opinion, which as a judge, he's not only entitled to do, but encouraged to do so.

Maybe your just taking your nym to literally... LOL

Re:As much as I agree, that's not the task of a ju (1)

LordLucless (582312) | more than 2 years ago | (#40563445)

A judge shouldn't be publicly trying to change the laws, just like a politician should not try to get involved in a court case to get someone convicted.

Huh? A judge should totally try and change the laws, just like any other citizen should. No, he shouldn't do it in the context of his job, but this doesn't appear to be the case. He's not denying the validity of patents in the cases that come before him, but in his office, when he's not behind the bench, he's offering critical opinion of existing law based on his experience as a judge. More power to him! Wish there were more doing the same.

Re:As much as I agree, that's not the task of a ju (1)

nine-times (778537) | more than 2 years ago | (#40563483)

A judge should check whether someone acts within the limits set by the law. A judge shouldn't be publicly trying to change the laws, just like a politician should not try to get involved in a court case to get someone convicted.

Were there laws written specific to allow software patents, or did some judge decide at some point that patent laws applied to software design? If it was decided in a prior case, what is the judge's obligation to follow precedent in this case?

A lot of US law is, in fact, set in precedent in courts. There is a protocol for when judges are supposed to follow precedents, but even so, they can find a way to challenge it if they need to. The real test is whether their challenge will stand up on appeal.

Re:As much as I agree, that's not the task of a ju (1)

u38cg (607297) | more than 2 years ago | (#40563507)

Common law much?

Re:As much as I agree, that's not the task of a ju (1)

Zaphod The 42nd (1205578) | more than 2 years ago | (#40563687)

And if a judge wants to consider that several patents are overreaching the patent law, or wants to consider the interpretation of the law, he can.

You don't know the first thing about the law system, don't go telling judges what to do. Seriously.

IANAL, and neither are you. Come back when you get a law degree, and then tell me what judges can and can't do.

As a software programmer (0)

slashmydots (2189826) | more than 2 years ago | (#40563177)

As a software programmer, if I write an amazing piece of software that nobody has seen before and some big company comes and makes a totally ripped off clone, I'd be pissed and that'd be unfair. So yes, we need software patents but they better be so broad that I don't gain a monopoly on anything moderately simplistic. I mean if I'm the first person to write a library that can transcode an MP3 into one with no background noise automatically without a "silent" sample like audacity needs, good for me but I shouldn't have a monopoly on it because it's so common and similar to existing technology. If I make a software program to take an MP3 and translate it into a delicious dessert recipe, now we've got something. That'd be really unique software using brand new, innovative AI code that's never been seen before. Someone better not rip that off! I think a simple search for "remotely similar prior art" would be sufficient.

Re:As a software programmer (1)

Anonymous Coward | more than 2 years ago | (#40563289)

Then the problem becomes who or what decides what's new and what's not?
And then it's only a matter of time before they're paid off.

Re:As a software programmer (5, Insightful)

Anonymous Coward | more than 2 years ago | (#40563307)

You would be protected sufficiently by copyright, a patent means something else.

Look at it from this perspective, using patents the way you want limits the software industry by saying only this company can make any kind of a software that does this. This has a very negative effect on the industry because they last 16 years. Additionally, patents are supposed to be qualified to protect inventions and that those are unique and not easily thought of by others. By comparison, thousands of programmers have already created applications that partially duplicate everything that is in existence in someway now. So the real question is... are you really creating something new, or are you just trying to write software and use a legal methods to force your relevance instead of just being better at it than the programmer next to you?

Re:As a software programmer (1)

Anonymous Coward | more than 2 years ago | (#40563403)

As a software programmer, if I write an amazing piece of software that nobody has seen before and some big company comes and makes a totally ripped off clone, I'd be pissed and that'd be unfair.

Patents have nothing to do with fairness. Never had, never will. They started out as gifts by the King of England to his friends. Nowadays, whether or not you can enforce a patent mainly depends on whether you have a sufficient number of lawyers and amount of money [forbes.com] .

Also keep in mind that patents in no way guarantee that you will be able to distribute and sell your "amazing piece of software". A patent only covers a single "invention" part of that software. There may be hundreds of patents owned by other companies/people that also apply to your program, and in principle you'd have to get a license/permission for every single one of those before you can use whatever they claim.

In short: as a programmer you are probably constantly "ripping off" hundreds of patent holders with every program you write. Unless you plan on going into the patent trolling business, it's unlikely that your one hypothetical patent will ever give you more benefit than the liabilities you have due to other people's patents.

Re:As a software programmer (4, Insightful)

Zaphod The 42nd (1205578) | more than 2 years ago | (#40563615)

As a software programmer, I think you're loony, and you haven't been paying attention to how dangerous these patents are.

Programmers in Europe are now refusing to sell their software in the US. Why? It would cost them LITERALLY NOTHING to distribute. Its digital. They just have to make the sales, and collect the money.

So why don't they do it? Because they're TERRIFIED of US patents. Its a goddamned nightmare. You're walking blind through a minefield! You spend years of your life on some app, and then find out that because of a tiny patent from 10 years ago that has almost nothing to do with anything, you're about to be sued into oblivion.

Patents are STATE SPONSORED MONOPOLIES. In this day and age, technological advancement is its own reward. Being first to market is enough. You don't need government sponsored monopolies to convince companies to invest in R&D, they're not stupid.

Re:As a software programmer (1)

MickyTheIdiot (1032226) | more than 2 years ago | (#40563653)

I disagree. As long as the code isn't copied then if it accomplishes the same goal then who cares.

That's the way the market is *supposed* to work.

Re:As a software programmer (0)

Anonymous Coward | more than 2 years ago | (#40563657)

As a software programmer, if I write an amazing piece of software that nobody has seen before and some big company comes and makes a totally ripped off clone, I'd be pissed and that'd be unfair.

As a mathematician, if I write an amazing proof that nobody has seen before and some big company comes and makes a totally ripped off clone, I'd be pissed and that'd be OMGWTFBBQ.

Just because you put a fuckton of effort into something doesn't mean you get to keep it. McDonalds can spend 20 million dollars researching the best location for a new restaurant, and Burger King can just poach all that research by opening up next door. Too bad, so sad. Life is a bitch. Wear a helmet.

Re:As a software programmer (1)

Zaphod The 42nd (1205578) | more than 2 years ago | (#40563665)

Just look at the situation with patents.

Is it small indie developers coming up with genius ideas and getting patents to protect themselves from the big guys?

NO. NOT AT ALL.

What we have here is a world where grad students sell their patent ideas for dirt to companies like IBM and Micorosoft because they have no money and nobody's heard of them.

Then those companies turn around and sue each other to oblivion. Its nothing to do with fairness, its just a legal war.

And that's the BEST SCENARIO. Usually, the companies with the patents are just patent trolls who HAVE NEVER EVEN RELEASED A PRODUCT, and have ZERO intention to do so. They literally just buy patents to sit on them and then sue other people who use those ideas.

That is absolutely COUNTER to progress. Patents are actually STIFLING CREATIVITY!!!
Weren't they supposed to PROTECT CREATIVITY?!?!?!?

It would be unfair. So what? (0)

Anonymous Coward | more than 2 years ago | (#40563689)

If you had copyright you'd be stuffed: they'd lock you in court until you were bankrupt. If you had patents, you'd be found in violation of 1000s of theirs.

And why are these companies going around "nicking" your ideas anyway? Don't they employ people to do that?

Then he should resign and run for congress (1, Informative)

ShanghaiBill (739463) | more than 2 years ago | (#40563179)

Judges should stick to judging, and leave legislating to legislatures. Software patents may be a bad idea, and the modern patent system may be detrimental to innovation, but that is not the concern of judges. Judges are supposed to decide based on legality, they are not supposed to decide the sensibility. The Constitution clearly gives the government the power to issue patents. So it is up to Congress to fix this, and that won't happen until enough voters care.

Re:Then he should resign and run for congress (0)

Anonymous Coward | more than 2 years ago | (#40563389)

someone has to speak up... authority is abused for bad so often

Re:Then he should resign and run for congress (0)

Anonymous Coward | more than 2 years ago | (#40563479)

Incorrect.

Judges are there as a limitation, to throw out or otherwise impose limits on laws that should not have been passed.

Our legal system is based on that concept, the legislative branch can pass any laws they want, but they must survive judicial scrutiny or else they get pitched.

So, no, it's NOT always 'up to Congress to fix this' and in fact rarely is if things truly start getting out of control like the patent-lawsuit nonsense has recently been turning. If the fix can be blocking certain laws (patents) from applying to certain things (software) then the Judicial branch can correct the issue as effectively as the Legislative branch.

Re:Then he should resign and run for congress (1)

Zaphod The 42nd (1205578) | more than 2 years ago | (#40563569)

Except if he finds that software shouldn't have been patentable in the first place by the patent law.

Software = Math. And the original patent law states very clearly you cannot patent math.

Judges ARE supposed to consider how laws should be interpreted.

Re:Then he should resign and run for congress (1)

Halo1 (136547) | more than 2 years ago | (#40563575)

Judges should stick to judging, and leave legislating to legislatures. Software patents may be a bad idea, and the modern patent system may be detrimental to innovation, but that is not the concern of judges. Judges are supposed to decide based on legality, they are not supposed to decide the sensibility. The Constitution clearly gives the government the power to issue patents. So it is up to Congress to fix this, and that won't happen until enough voters care.

You seem to forget the part whereby software patents used to be forbidden, and then were gradually introduced via several court cases, most famous of which are Diamond v. Diehr [wikipedia.org] and the State Street decision [wikipedia.org] . There is no law by the US Congress that either specifically allows or forbids software patents. All of the software patent decisions until now have been legislation from the bench.

And given that the US Constitution explicitly specifies that patents can only be be granted in order to "promote the progress of science and useful arts", I'd argue that properly applying the law does require the judge to take into account that aspect as well.

Re:Then he should resign and run for congress (1)

T.E.D. (34228) | more than 2 years ago | (#40563667)

That is true. However, it is exactly the Court's job to decide what the law actually says when there is a disagreement about same. Somebody has to be the ultimate authority on that, and this is their job.

Also, the Constitution does not give the Government the power to issue patents for just anything the government feel like issuing them for. In particular, it has to be an inventor's discovery. Can things like "business methods" or algorithms be considered "inventions"? You and I have an opinion. However, telling us all where exactly the Constitutonal line is draw is the court's job, and they have never definitively done so for software (or for that matter "business method") patents.

They have done so for pure math (eg: formulas) and they are not patentable. Are algorithms fundamentally different from math? I suspect most of my CS teachers would say no. I suspect Apple would say yes. We need the court to say.

Re:Then he should resign and run for congress (0)

Anonymous Coward | more than 2 years ago | (#40563719)

Judges should stick to judging, and leave legislating to legislatures.

Let's start with voters voting.

So how long before... (0)

Anonymous Coward | more than 2 years ago | (#40563205)

this judge is visited by patent specialist Moe "the fleshripper" Simms to explain the industries position?

Re:So how long before... (0)

Anonymous Coward | more than 2 years ago | (#40563835)

I am thinking same thing. He probably just missed his check in the mail and got all worked up about it, and came so close to abolishing software patents... Moe "the fleshripper" is probably the next level in judicial education. But the damage is already done, you know.

Appeal just waiting to happen (3, Interesting)

Supp0rtLinux (594509) | more than 2 years ago | (#40563223)

Its starting to sound like Posner had a specific agenda. After all, he volunteered for this one. It would seem that instead of being a judge and enforcing or enacting the law, he used this as his proverbial soapbox and to make a point. I can't wait for Apple to realize this (they probably already have) and appeal for a new trial to go forward thanks to Posner expressing his opinions, etc. The fact is, Posner doesn't make the laws; he interprets and applies them. By volunteering for the case, then shooting it down, then talking about his discontent with technological patents, he's made it pretty clear he has an agenda.

Re:Appeal just waiting to happen (1)

Supp0rtLinux (594509) | more than 2 years ago | (#40563303)

Also, his comparison to pharma is a bit off. Sure they invest years into stuff, but how many of them do we later find out faked tests or results and years later are being sued for killing or harming thousands? Not to mention the idea of gene patents and such. Even worse, for most of the psychological drugs out there, the pharmas don't really even know how they work. Sure they know they're affecting neurotransmitters or serotonin levels, etc, but whereas a technology patent such as Apple might have is intended to do one specific thing or one way of doing, they know how its done. Most of the drugs on the market are still sort of voodoo. Yes, we know they affect this level or that, etc etc... but we don't 100% know how it works and why which is why there are so many off-market or other uses and why the long term effects often result in death/harm and subsequent lawsuits. Yet, Posner thinks its okay for the pharmas to get a patent for years of work, but Apple or Samsung or Motorola don't deserve the same thing? Also, worth noting that the only reason pharmas invest so many years into their works and patents is because they have to: its called clinical trials. If pharmas could move as fast as tech companies, they would. But fortunately for us, testing needs to be done and it takes time and refinement. The comparison of fast tech to pharma doesn't equate.

It's too bad (1)

Dunbal (464142) | more than 2 years ago | (#40563231)

had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

Yeah, too bad Bayer doesn't make any money at all on acetyl salicylic acid because it hasn't been patent protected for many, many years. What the hell is this argument for drug companies? It becomes hardER to earn a profit once the patent expires, but it's certainly not impossible to do so. You would think that monopoly is the only way to make money, according to them. No, monopoly gets you the $50 pill and the $500 vaccine.

Re:It's too bad (1)

Shados (741919) | more than 2 years ago | (#40563333)

Some drugs for very rare conditions cost a fortune because they take just as much research as any other drug, but only apply to a few hundred people, if that. If it cost 1 billion to research, but 100 bucks to apply the treatment...you're never making the money back if your competitor just looks at what you did, sell it for $100 * 300 treatments, and call it a day.

Just an example among many.

Patents for different sectors (1)

awjr (1248008) | more than 2 years ago | (#40563253)

If you RTFA, you'll realise this is not just about software patents. He's going so far as to suggest that patents are suitable for certain industries (e.g. Pharmaceuticals) where the investment to create the products is immense. Software is one of those industries where patents hold back innovation. Software is more about execution.

Just stop being idiots about it. (2)

Impy the Impiuos Imp (442658) | more than 2 years ago | (#40563255)

The problem isn't patents per se. The problem is idiocy in the patent office in collusion with big corporations.

Somebody is going to invent good robots for the house someday. Somebody is going to invent real artificial intelligence. There's a lot of work jamming forward ever more-efficient high speed 3D algorithms and routing algorithms. People are working on robot cars.

These things can and should have protection.

Here's a good rule: If it's just a simulation of something that already exists, and the mechanism is known (note that the I of AI is not yet known) it's not patentable (unless said thing is still under patent, in which case that guy owns it.) This isn't to say that particularly clever implementations couldn't also be patented.

Just thinking, "Hey! We could simulate this -- patent!" just doesn't cut it. And the standard seems much weaker than even that.

Constitutional? We don't know. (1)

T.E.D. (34228) | more than 2 years ago | (#40563373)

Some of the sitting supreme court justices have implied they aren't sure Software patents are valid either [mashable.com] .

Personally, I think it would be best for both sides if someone took this issue to the Supreme court and got it decided. I have my own opinion of what they should decide, but either way everyone would be better off without the uncertainty.

Protective Patenting (0)

Anonymous Coward | more than 2 years ago | (#40563423)

I have considered getting a patent on some software I have written only once. The program was a music management software somewhat similar to iTunes. It had a unique technology built into it which I still haven't seen in any other program.

I would be perfectly happy with others using the idea and expanding upon it. I feel that software, like ideas, should be free to be copied and evolve naturally. However my concern was that some company would copy the technology, patent it as their own, and turn around and sue me for having infringed on their patent.

I would guess that much of the software patenting going on is for reasons such as this, just to cover your own ass.

MATH = Not Patentable (2)

Zaphod The 42nd (1205578) | more than 2 years ago | (#40563535)

By the definition of patents, software should be un-patentable.
Math is not patent-able. Math is intrinsic, part of the world and nature around us. We do not invent math, we merely discover it.

Programs can be converted into Lambda Calculus.
Lambda Calculus is math.
Programs are math.
Programs are un-patentable. QED.

Copyright is plenty enough.

"My personal opinion is that algorithms are like mathematics, i.e. inherently non-patentable. It worries me that most patents are about simple ideas that I would expect my students to develop them as part of their homework." - DONALD FUCKING KNUTH

If you think you know more about Computer Science than Donald Knuth, you're wrong.

Somebody with balls (1)

roman_mir (125474) | more than 2 years ago | (#40563551)

Good for the judge. AFAIC all patents and copyrights must be abolished, the less government intervention in the economy the healthier the economy is. Today government is involved in every aspect of economy and we can see the outcomes.

The judge is commenting appropriately (1)

FellowConspirator (882908) | more than 2 years ago | (#40563555)

Several have lambasted the judge for making the statement that he doesn't believe that software patents are necessary, saying that he should confine himself to making judgements on matters of law. However, it's important that a judge make such statements if he observes in the execution of his duties that the application of the law and precedent is not serving the purpose for which it was enacted, or is adversely affecting the court's ability to perform its duty (e.g., something precipitates a flood of lengthy but pointless lawsuits that clog the courts and defer hearing of more substantive cases).

It's precisely this feedback which should be informing legislators and prosecutors on how to reform legislation and prioritize enforcement efforts.

In the case of software patents, there's quite a bit of legal, historical, and practical arguments as to why software patents should not exist (at least in the form that device patents do), but there's been very little formal challenge to the idea, and the USPTO and the courts are substantially and adversely impacted by it (not to mention the industry).

Fundamental Patent Reform Idea (2)

scorp1us (235526) | more than 2 years ago | (#40563763)

For any patent to be granted a list of expenses in developing the patent is also submitted. Then they have patent protection for 10x the expenses in revenue. They will submit an annual report, and any kind of falsification will have the patent terminated. The people who want to use the patent for free will verify the reports to find any falsification. For devices that integrate multiple patents they are allowed to be summed accordingly on a prorated basis.

This way, there is still incentive to do the R&D, because you'll be able to get multiples of your investment back. But the world gets your patents potentially sooner. If you want to delay the world from getting your patents, then set your prices very low, so ti take a long time to recover them, . Or set your prices high and move onto the next thing. This way everyone wins. They either get really cheap inventions or the patent protection runs out fast. It's a great balance.

This not only fixes drug patents but software patents too, as most software patents would only costs thousands to develop and would get paid 10x back in a very short time.

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