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USPTO Asks For Input On Software Patents

Soulskill posted about a year and a half ago | from the first-step-is-admitting-you-have-a-problem dept.

Patents 209

New submitter MouseTheLuckyDog writes "The patent office is reviewing its policy on software patents and is asking for feedback (PDF). Groklaw reports that the USPTO will be hosting a pair of roundtable sessions in February, during which the public will have the ability to attend and put forth their viewpoints. From the article: 'It's obvious the USPTO realizes there is serious unhappiness among software developers, and they'd like to improve things. Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued. I don't wish to be cynical, though, as that's a useless thing. So maybe we should look at it as an opportunity to at least be heard. It's progress that they even thought about having a dialogue with developers, if you look at it that way.' If you can make it to Silicon Valley on February 12 or New York City on February 27, go and make your voice heard."

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I Would Like To Suggest "Accountability" (4, Interesting)

Press2ToContinue (2424598) | about a year and a half ago | (#42476957)

I would like to see a new law on the books: "wrongfully or negligently issuing a patent", to be applied as follows:

In the case where a patent is declared invalid, I would like to see the issuing patent office and/or examiner held responsible for damages done....

And to reimburse the patent applicant for:
1) the fees charged for granting the patent
2) legal fees incurred by the patent holder in attempting to defend the patent before it is struck down

And to reimburse any party who is financially damaged by the patent office having wrongfully issued a patent, such as
3) to any company which licensed the patent: any license fees paid out to use the patent
4) to any company which was sued for infringing on the patent: court costs and damages

Patents are applied for in good faith. If the recipient can be irreparably damaged due to negligence or other actions which wrong the recipient, shouldn't there be legal recourse?

Do you think the USPTO might hold "inventiveness" and the "obviousness" tests, and the search for prior art to a much higher standard? Do you think they might have the motivation to remedy any weaknesses in the system and keep on doing so?

Accountability anyone?

Re:I Would Like To Suggest "Accountability" (5, Insightful)

RobertLTux (260313) | about a year and a half ago | (#42477227)

what i would suggest is pure software patents be BANNED (and all currently active software patents voided)

now if software is some part of an actual physical product (ie something that would go THUD is dropped) and is an intergral part of said physical product then you can have a patent on the entire setup.

also there should be a rule of "must infringe on all parts" for a patent to be violated (dropping out clauses that don't apply ie claim for water use when the infringement is land use if there is a land use clause)

Re:I Would Like To Suggest "Accountability" (5, Insightful)

Hentes (2461350) | about a year and a half ago | (#42477397)

now if software is some part of an actual physical product (ie something that would go THUD is dropped) and is an intergral part of said physical product then you can have a patent on the entire setup.

I never understood this argument. If the software is purpose-built for your hardware, then there's no use in copying it without said hardware. Here in Europe a similar precedent gets misused to push all kinds of software patents. Getting a patent on the hardware part only should be enough.

Re:I Would Like To Suggest "Accountability" (2)

Sarten-X (1102295) | about a year and a half ago | (#42477855)

The hardware part doesn't matter, though. Hardware can be emulated in software, and since that software emulation wouldn't be covered by the hardware-only patent, and couldn't have its own patent, there's now a publicly-available system that runs your software. The actual hardware becomes worthless, being purchased only as a means of getting an original copy of the latest software. Remember what happened to all the separate TVs, telephones, old computers, fax machines, and typewriters we used to have? That's the eventual fate of all purpose-built hardware. It's discarded as soon as its function is absorbed by something else.

Re:I Would Like To Suggest "Accountability" (1)

gbjbaanb (229885) | about a year and a half ago | (#42478485)

Hardware can be emulated in software

I understand how a software keyboard can emulate a physical keyboard, but how about a webcam, or a graphics card, or a mobile phone. In all cases, you can patent the hardware device and let copyright laws handle copying of your software whilst still allowing someone else to still use the concept you came up with in your hardware+software combo.

Re:I Would Like To Suggest "Accountability" (1)

TheSpoom (715771) | about a year and a half ago | (#42477449)

In reality they'll have to phase them out; existing patents would need to continue to be enforceable during their lifetime. Otherwise, current patentholders will (rightfully) sue the federal government.

Re:I Would Like To Suggest "Accountability" (3, Informative)

h4rr4r (612664) | about a year and a half ago | (#42477563)

How could they sue?

They had the patent until the law changed, so nothing I see new there. Lots of things are one way until the law changes then another.

Re:I Would Like To Suggest "Accountability" (5, Insightful)

spire3661 (1038968) | about a year and a half ago | (#42477869)

If this were true,the entire American Populace could sue Congress for extending copyright on works ex post facto. Public domain status is payment for a limited monopoly. Once Congress changed the rules, WE THE PEOPLE lost a good chunk of the social bargain. The door swings both ways.

Re:I Would Like To Suggest "Accountability" (2, Interesting)

Joce640k (829181) | about a year and a half ago | (#42477897)

They could pass new laws to make it much easier to invalidate a patent.

Most software patents weren't applied for in good faith anyway and should never have been approved. The bar for 'non-obviousness' seems to have been set at a negative height for most of the applicants.

Re:I Would Like To Suggest "Accountability" (4, Informative)

Shetan (20885) | about a year and a half ago | (#42478277)

Doesn't the U.S. Federal Government have Sovereign Immunity?

Re:I Would Like To Suggest "Accountability" (1)

suutar (1860506) | about a year and a half ago | (#42478377)

yes, yes it does.

Re:I Would Like To Suggest "Accountability" (2, Informative)

Anonymous Coward | about a year and a half ago | (#42478523)

from we the Peoples : hell yeah !

from we the Corporations : hell no !
 

Go ahead (1)

Anonymous Coward | about a year and a half ago | (#42477533)

Just realize that anything reasonable will be rejected out-of-hand.

In the guise of compromise, something ostensibly slightly better but really just as bad will be adopted, and things will remain basically the same.

Rich people have to be negatively impacted before things change, and the current state of patent law perfectly fits the needs of the current wealthy industry leaders (yes, they fight each other over patent disputes but always end up with cartel arrangements as a result; all parties in these battles still get the benefit of protecting themselves from small upstarts, which is what they really want).

Re:I Would Like To Suggest "Accountability" (3, Funny)

Steauengeglase (512315) | about a year and a half ago | (#42478307)

I'll settle for the patent office taking that "non-obvious" bit into consideration.

Re:I Would Like To Suggest "Accountability" (4, Interesting)

StripedCow (776465) | about a year and a half ago | (#42478479)

What I would suggest is the following. Currently, the USPTO gets paid for every patent which they validate. This is so obviously perverse that it actually hurts.
Now instead of letting that money flow into the hands of the USPTO, it should go somewhere else, perhaps it should go into education.
This, imho, would already be a huge improvement.

Let's take it one step further. Let the patent office PAY for each patent they validate. A second government could then pay them back based on the societal impact of the patents they approved (measured, say, 5 years after validation).

Thus, with this two-tier model, lack of societal impact means a loss for the USPTO.

This means that, under this model, the USPTO will not so easily approve simple things such as "one click shopping" because they might lose on it on account of a lack of social impact. Similarly, patent trolling will be actively barred by the patent office (no product means no social impact). However, a patent for a new medicine may be approved.

Re:I Would Like To Suggest "Accountability" (0)

Anonymous Coward | about a year and a half ago | (#42477471)

Your suggestion, like so many proposed laws, would simply cause all examiners to quit/blanket reject and cause a few years of confusion for patents, without actually fixing anything, all for the sake of smugly "sticking it to" a few hypothetical examiners. Neither I, nor any sane person, would choose to put myself at risk for a multi-billion dollar obligation for personally overlooking an obscure [to me] piece of prior art in a field I'm not an expert in. If I hand you the plans for a circular saw hand guard, a method for tuning a radio transmitter that grants exceptional range, and a process of constructing carbon fiber materials, with the stipulation that if you mark any of them 'innovative' incorrectly you will lose a few billion dollars, is there a chance in hell you would take that risk? There is, quite literally, no patent which would have been granted under your proposed law.

Perhaps that is your intention, but if so, why don't you just say "Amend the Constitution to remove patents (because the required process for checking validity is prohibitively expensive and so often incorrect), and dissolve the PTO?" I'm no fan of most of the patents that get discussed on /., but I recognize that the solution is not to tar and feather a small group of individuals and pretend that they were the root cause of every single problem with the system.

Re:I Would Like To Suggest "Accountability" (1)

Jiro (131519) | about a year and a half ago | (#42477725)

It's true that that proposal would make people liable for billions of dollars. But that proposal makes people liable for billions of dollars because bad patents can cause damages of billions of dollars.

If bad patents can cause billions of dollars in damages, then *someone* ought to be held responsible for that. The only question is who. Currently it's the company who "infringes" on the bad patent that faces the damages. That's no better than making someone else pay, and in some ways is worse because the company didn't even make a bad decision--they were just screwed over by someone else.

Re:I Would Like To Suggest "Accountability" (5, Interesting)

Anonymous Coward | about a year and a half ago | (#42478217)

The problem is that there is no single person whose fault the bad patent is. Consider if A (arbitrarily wealthy) and B (not) independently invent and locally produce X, but only A files for it, unaware of B. B resolves not to apply for a patent. Patent examiner C, also unaware of B, grants it. Company D hires B and begins producing Y, a variant of X that 'infringes'. After a few years, A's patent is granted and he (now a fairly large player) becomes aware of D (a very large player) and (because Y was released after he applied for the patent on X) sues. D, due to their ace-in-the-hole of B, cheerfully goes to court.

As far as A is concerned, he invented something, patented it, and is producing it.
As far as B is concerned, he invented something, but didn't bother patenting it. Doesn't matter, as his prior art should be enough to protect him against infringement claims.
As far as D is concerned, they are safe because of B's guarantee he won't patent it.

So then A sues D, after a long battle the patent gets invalidated, so who is to blame? Not A, he invented and patented the damn thing legally. Surely not B, he's taking the Benjamin Franklin (I think) approach. If B isn't to blame, I can't see a real reason that D is. Do you seriously expect C to scour the entire country himself to find B?

The correct answer would seem to be that if A and B came up with the invention, the patent should be invalid on grounds of obviousness, not prior art. But just because Newton and Liebnitz both wrote about calculus doesn't make their advances obvious. If math were patentable, and Liebnitz invalidated Newton's patent on integration, would you hold C responsible for not considering calculus obvious? Nobody in my example, I believe, "deserves" to lose a few billion. Various parties were simply unaware of each other.

Re:I Would Like To Suggest "Accountability" (0)

Anonymous Coward | about a year and a half ago | (#42478657)

To follow up, the point I completely forgot to make is that the assumption "bad patents can cause billions of dollars in damages" is the real problem, not who pays that damage. In the recent case of Apple v Samsung, the damages didn't even make sense. Full stop. Not to mention lost productivity as various companies/people take long, circuitous implementations to avoid infringing on patents that really shouldn't exist. That's what needs to be fixed, and what will probably never be fixed.

Horse has bolted (4, Insightful)

Joce640k (829181) | about a year and a half ago | (#42477581)

they'd like to improve things...

Too late for that, the damage is done. The patents they already issued are enough to destroy the software industry for the next 15 years at least.

I fear you are right (1)

Press2ToContinue (2424598) | about a year and a half ago | (#42478239)

So sad.

Re:I Would Like To Suggest "Accountability" (0)

Anonymous Coward | about a year and a half ago | (#42477985)

I would like to see the issuing ... examiner held responsible for damages done....

Would you examine patents under those conditions? Who in their right mind would?

Re:I Would Like To Suggest "Accountability" (3, Interesting)

morgauxo (974071) | about a year and a half ago | (#42478031)

Accountability yes, damages no.

Think of your own job. Whatever you do, how much can it cost the company when you screw up? Do you use any expensive equipment? Does your performance affect the decisions of any large account customers? Do you handle large quantities of product or highly valuable products? Can you afford to replace them? That would be the equivalent of taking damages from the individual examiners.

Damages from the issuing office might make a little more sense but ultimately that would just be punishing the tax payers.

What we need is a change in accountability. Performance is measured mainly on how many patents the offices issue. They are constantly being flooded with applications and the idea is that the patent offices need to keep up or this will harm the economy by slowing businesses down. It's also believed by politicians that the number of patents granted to US companies is somehow a valid measure of how our technical industry is doing vs other countries. That attitude needs to go!

Instead, hold patent offices and examiners accountable for quality of patents granted or not granted. This could be measured by percentage of patents invalidated in court and percentage of rejects that succeed later. That last one might be tricky to measure but it would be important too. Otherwise, maybe keep looking for quantity but also look for quality. It should affect their job reviews, raises, promotions and such just like happens for any other kind of worker. If they are really bad... they get fired.

This will mean huge delays in getting a patent granted given the current quantity of applications. That flow needs to be controlled! One sollution might be increasing the cost to apply for a patent so that only worthy ideas are worth attempting. The problem with that is a price that keeps larger companies in check shuts out individuals and small companies entirely. Instead.. I propose an application fee that gets larger based on how many applications you have in the system. Large companies still might get around this by having their individual employees apply for the patents and then transfer them back to the company. Some rules will be needed to prevent this. Maybe something stating that any contract requiring that an employee transfer patents from the employees name to the company are not valid. The company must apply for the patent itself or the employee might use it as leverage for more money or even sell it to someone else.

Re:I Would Like To Suggest "Accountability" (0)

Anonymous Coward | about a year and a half ago | (#42478269)

If they *only* get fired for doing terrible at their job, I can see corporations secretly sponsoring people to go get a job there in order to specifically grant that business's patents.

Then the worst thing that can happen is someone loses a job, although they are being very much compensated by the corporation who wanted patents. Even if they went to jail for being a bad patent officer, it could still be worthwhile to someone to do some time for a few million dollars. People's corruption ruins basically everything.

I say get rid of all patents, they are a ridiculous idea in like 90+% of cases other than stuff like pharmaceuticals.

tax patent enforcement to fund USPTO (1)

4wdloop (1031398) | about a year and a half ago | (#42478675)

>> That flow needs to be controlled! One sollution might be increasing the cost to apply for a patent so that only worthy ideas are worth attempting. The problem with that is a price that keeps larger companies in check shuts out individuals and small companies entirely.

Yes, $1E6 for me is a lot, while for iDevice Inc is nothing.

Perhaps a "tax" on enforcement (attempt weather successful or not and/or actual settlements/licenses) proportional to the expected value of the enforcement could fund better USPTO performance? This would also curb patent-troll extortion somewhat. This probably goes against US law principles...

Re:I Would Like To Suggest "Accountability" (0)

Anonymous Coward | about a year and a half ago | (#42478137)

Troll.

Re:I Would Like To Suggest "Accountability" (1)

Press2ToContinue (2424598) | about a year and a half ago | (#42478215)

Anonymous Coward.

Re:I Would Like To Suggest "Accountability" (0)

Anonymous Coward | about a year and a half ago | (#42478419)

Shepard.

HOW IS THIS FOR INPIUT !! SHOVE IT !! (1)

Anonymous Coward | about a year and a half ago | (#42476995)

Where the sun don't shine !!

Ban them! (5, Insightful)

eksith (2776419) | about a year and a half ago | (#42477035)

A program/software/instructions for a computer, whatever you call them, should be covered under copyright, not a patent. Algorithms should be treated as works for art. Functional (or imperative or whatever) art, but creative works nonetheless.

The end.

Re:Ban them! (1)

Anonymous Coward | about a year and a half ago | (#42477183)

Copyrights last much longer than patents. Beware of unintended consequences.

Re:Ban them! (4, Informative)

jedidiah (1196) | about a year and a half ago | (#42477219)

Computer programs are already treated as copyrightable works. So there would be no new unintended consequences.

Re:Ban them! (1)

Hentes (2461350) | about a year and a half ago | (#42477233)

Right now, implementations of patented algorithms also get copyright, patents don't help against copyright at all.

Re:Ban them! (0)

Anonymous Coward | about a year and a half ago | (#42478149)

Not really. copyright is very thin on computer programs. Basically it has to be almost a word for word copy. Copyright only applies to the "expression" of the algorithm.

For example:

10: Print "Hello"
20: GOTO 10

would not likely be infringed by:
int main void()
{
while (true)
printhello();

return 0;
}
void printhello()
{
printf("hello");
return;
}

Re:Ban them! (1)

Anonymous Coward | about a year and a half ago | (#42477209)

Terrible idea. As broken as patent law is, copyright law is even more fucked up. Plus the term on copyright is life of the author + 70 years. This is far too long for the rapidly changing software industry.

Algorithms should not be patent-able. They are simply mathematical processes and should not be treated as copyright-able or patent-able works.

Re:Ban them! (5, Insightful)

Ikonoclasm (1139897) | about a year and a half ago | (#42477419)

The code and algorithms are already copyrighted. Every creative work in the US is automatically copyrighted, so that concern is moot.

Secondly, algorithms can't be patented. The law explicitly forbids the patenting of math. You can only patent an implementation of the math.

Strictly speaking, software should be unpatentable. Software is, at its most fundamental level, pure math. However, much like gene patents, the US courts have decided to conveniently ignore the law where it states that Nature can't be patented (math and genes fall under Nature) in order to allow industry to prosper. Unfortunately, by granting individuals temporary monopolies, the USPTO has insured that those industries have become legal minefields that are stagnating out of fear of litigation.

Re:Ban them! (1)

stewsters (1406737) | about a year and a half ago | (#42477691)

Is their recourse for us when the patent office patents nature? On a side note, anyone want to help me patent a system that exchanges gases in a fluid using two expanding and contracting sacs?

Re:Ban them! (4, Insightful)

WaywardGeek (1480513) | about a year and a half ago | (#42477787)

Copyrights and trade secrets protected the software industry just fine before the USPTO opened the flood gates on software patents in the early 90's. They should stick to the original intent of the constitution, and protect the free flow of ideas by banning patents on mathematical algorithms (which includes software, IMO). They should not overturn the patents they've granted - that would harm the companies that filed them - but going forward, patents should cover something more than what can be executed in any mainstream computer language. If I can violate your patent simply by writing C code, it should not be patentable.

Software patents have resulted in:
The Open Invention Network [openinventionnetwork.com]
Peer to Patent [peertopatent.org]
Oracle suing Google over Java [engadget.com]
37 Android related patent suits [fosspatents.com]
Nearly killing RIM [webpronews.com]
Linux patent suits [wikipedia.org] ...

I'm afraid we're at the point where the anti-software-patent people warned we'd be. Small companies live in terror of being sued over any software they write. Big companies waste billions of dollars in court. Coders like me intentionally "code dumb", to avoid accidentally using a patented software idea. It's a terrible waste, and it makes me very sad to see America throwing away it's software innovation lead in this way. Thank God software patents weren't around when we wrote so much of the software that still powers the world. If they were, we'd all still be renting time on IBM mainframes. Just imagine a world where Donald Knuth patented all his ideas.

Re:Ban them! (0)

Anonymous Coward | about a year and a half ago | (#42477959)

You mention that we shouldn't void the existing software patents because of some harm the companies that filed the patents would experience. I'd say we must void them. At most, the company that filed them would get a refund of their filing fee - say if they've held the patent less than half of the supposed patent lifetime. Pure NPEs and trolls like Lodsys, Intellectual Ventures, etc. would fold overnight. No harm there as all they exist to do is take value out of the system. Other companies that actually filed patents and are practicing them would now be subject to competition. That is a good thing; it forces more innovation. No more Microsoft getting money for all Android phones. No Apple getting money for all Samsung phones (which may yet be the result of the cases they have going).

Re:Ban them! (3, Informative)

WaywardGeek (1480513) | about a year and a half ago | (#42478325)

There are other problems besides the expense. EDA companies have patented lots of very obscure algorithms, rather than keep them trade secret. If you take away the patents, then their competitors will be free to use their ideas, which could be fatal to some companies.

Unfortunately, it's a moot point. I went and read the poster's links, and the USPTO has no intention of considering any broad limits on software patents. They're just seeking feedback on nonsense like whether XML can be used in a claim. These meetings wont be worth anyone's time.

Re:Ban them! (0)

Anonymous Coward | about a year and a half ago | (#42478439)

If patented ideas that their competitors could easily copy are the only thing a company has going for them... maybe they should fail.

Re:Ban them! (0)

Anonymous Coward | about a year and a half ago | (#42477943)

How about if you want a software patent, then you must release all source code related to said patent, and relinquish copyright. As the whole point of the patent system was to have inventions released to the public in exchange for a monopoly guarantee, it seems that the the source would need to be available for any patent to be granted. And as no software lives inside a vaccuum, any required libraries must also have their source released.

I have a suspicion that software patent applications would plummet if you had to submit source with the application. In addition, defending against a patent would include source comparisons, and not just "the funtionality looks similar" arguments.

Re:Ban them! (4, Informative)

WaywardGeek (1480513) | about a year and a half ago | (#42478607)

Requiring source code wouldn't do much to discourage software patents.

I'm listed as an inventor on 22 patents so far. Several of them are software patents. I didn't file any originally, until a competitor patented a key software algorithm we'd used for years at a previous company - an algorithm we could not function without. Now I encourage that we patent all company-critical software ideas. Anyway, I've been filing them since the early '90s. My early patents all included full source code, and one has many thousands of lines from our commercial product - enough to actual run the algorithm on real designs. If you have a new logic optimization idea, have you fully disclosed how to implement it if you haven't included a netlist parser? Early software patents included full source code, which gradually was reduced until now a bit of pseudo code in the patent text is generally enough. The old requirement for source code didn't seem to slow patent applications.

Every patent lawyer knows that you can't violate a patent in your head. The same is true if you write an idea down on paper. You also can't violate a patent by writing it down in Notepad on a computer, or even if you save it, and share it with friends. However, if your idea is a sequence of steps a computer could execute, and you "run" it, chance are high that you've just violated somebody's patent. Being a software developer in America is a bit like being an illegal immigrant. You just keep quite, keep your head down, and hope that nobody bothers looking at what you're doing too closely.

Re:Ban them! (0)

Anonymous Coward | about a year and a half ago | (#42478279)

Algorithms should be treated as works for art.

Why? Algorithms aren't created as a work of art and most programs aren't either.

Demoscene programs like elevated by Rgba & TBC [youtube.com] that are specifically made to be art where graphics, music and even the code (As it is written to fit within 4096 bytes.) are all made to be part of an artistic composition should be treated as art and covered by copyright. Games would generally fit in this category too since they also contains those elements.
A program that doesn't contain any creative part like an office program shouldn't, it's just general programming and if you consider writing those an art you are probably doing it the wrong way. For a competent programmer it is just a matter of getting it done. The same goes with plumbing, if you consider it a work of art you should probably find another occupation.
And no, this is not different standards. Copyright only applies to works of art, regardless of if it is a sound recording or paint on a wall.

My input on software patents... (3, Informative)

jkrise (535370) | about a year and a half ago | (#42477185)

Input -----> Process -------> Output

100000 applications for software patents -----------> USPTO ------------> All rejected.

All software is, by definition, math. And all math, by definition, is not patentable.

Re:My input on software patents... (0)

Anonymous Coward | about a year and a half ago | (#42477363)

> All software is, by definition, math. And all math, by definition, is not patentable.

All inventions can be defined by a processing using math, therefore patents should not exist.

Re:My input on software patents... (0)

Anonymous Coward | about a year and a half ago | (#42477425)

> All software is, by definition, math. And all math, by definition, is not patentable.

All inventions can be defined by a processing using math, therefore patents should not exist.

The key difference is between "using math" and "fundamentally being nothing other than math."

Re:My input on software patents... (2)

jkrise (535370) | about a year and a half ago | (#42477493)

All inventions can be defined by a processing using math

Eh? Salicylaldehyde is prepared from phenol and chloroform by heating with sodium hydroxide or potassium hydroxide. Can this process be defined using ONLY math?

Re:My input on software patents... (0)

Anonymous Coward | about a year and a half ago | (#42477649)

A recipe is just a type of algorithm. If an algorithm for software is math, why wouldn't an algorithm for chemistry or cooking be considered math too?

Re:My input on software patents... (0)

Anonymous Coward | about a year and a half ago | (#42477827)

The difference is that a software patent would cover ALL ways of creating Salicylaldehyde. The way chemical patents are done is the specific process including pressures, temperatures and catalysts are part of the patent. Make a new way of Salicylaldehyde by chilling with a different catalyst? Get a new patent.

Re:My input on software patents... (-1)

Anonymous Coward | about a year and a half ago | (#42477837)

You'd need a Beowulf cluster of top-of-the-TOP500 supercomputers to test it, but you could probably define it as a set of boundary conditions on a crazily large (by current stanfards; maybe in fifty years they'll be run-of-the-mill) full Standard Model lattice gauge theory calculations.

Re:My input on software patents... (0)

Anonymous Coward | about a year and a half ago | (#42477391)

All software is, by definition, math. And all math, by definition, is not patentable.

Yeah, that logic ain't gonna fly in a USPTO debate. You're lucky that (apparently) nobody from there reads Slashdot, else it wouldn't take much for them to derive "all physical inventions are, by definition, atoms. And all atoms, by definition, are not patentable" from that. Then you'd be labeled as a loony (moreso if you seriously said "YES, exactly!" at that derivation) and they'd have a nice example they can use for future reference of how out of touch we are with reality. Then you get a harsh lesson in just how small a group we are in the grand scheme of things when everybody agrees with them.

Try rephrasing that, is what I'm saying.

Re:My input on software patents... (3, Interesting)

jkrise (535370) | about a year and a half ago | (#42477675)

Try rephrasing that, is what I'm saying.

I feel it will not work with the nutcases in the USPTO; so absent summary rejection of ALL software patent applications, and voiding of past software patents granted, nothing will happen. Instead of focusing on the USPTO which is a gone-case, I suggest a different approach when patents are used in litigation, to solve the problem. This is what I posted in Groklaw, on a related discussion:
--------------------
The PTO has a limited amount of time to inspect each patent (I believe it's around a day per patent).

This is the exact problem, and in the rest of your post, you have detailed how to DEAL with the problem. What I am advocating is, how to solve the problem? The fact that the PTO has just 1 day to inspect a patent, implies that innovation is happening at a rapid pace these days. So a roughly 2-decade monopoly on a patent in these modern days; is totally not justified, since entire businesses and ecosystems are impacted by such long term monopolies.

Consider that there are about 2 billion Windows devices worldwide, in about 2 decades. In just 2 more years, it is projected that there could be more than 2.5 billion Android devices, surpassing Windows devices.

So a patent that cripples Android for 2 decades means ENORMOUS incalculable harm to the progress of science and arts, which is the raisson d'etre of patents.

So the cure to the PTO having just 1 day to inspect a patent application, is to drastically reduce the number of applications, rather than hastily issuing dubious patents, re-examining and rejecting them, and further re-examining and validating a limited number of claims.

To reduce the number of patents filed, a severe penalty has to be levied on a patent found to be invalid on re-examination; when such a patent is asserted in a case. If a company faces the prospect of a $10bn penalty, compared to a $1 bn damages compensation; it will think a 100 times before using the patent in a court. Additionally, it will also reduce the need and motivation to apply for a patent in the first place, thus allowing the PTO a lot of time for review and examination of a vastly reduced number of applications, which are bound to be genuine, rather than frivolous.

Re:My input on software patents... (2)

Sarten-X (1102295) | about a year and a half ago | (#42477637)

All physical inventions are, by definition, following the laws of physics. All physics is, by definition, math. And all math, by definition, is not patentable.

The whole point of patents is to protect the market incentive for creating, rather than copying, technology. That doesn't somehow become magically irrelevant when software's involved. Producing a new algorithm that's better suited to a particular purpose takes a lot of work and research, and is easily copied by others once it's in production. Patent protection should still apply, to allow the original inventors the time to bring their product to market, and have a chance at recouping their investment, and maybe even profiting.

What's wrong with software patents is the speed at which the state of the art is advancing. Where an engine design remains relevant and useful for 20 years, computing technology progresses far faster, with obsolescence setting in after as few as two years. That's what I'd like to see changed. For each field of invention (e.g. computing, manufacturing, consumables, artistic production, etc.), a patent's life should be based on how fast that field progresses, with the lifespans reevaluated periodically. Software patents, for example, could reasonably expire after only three to five years. In that time, whatever improvements the patented algorithm made will likely be surpassed by simply using an older algorithm and faster hardware, so the patented algorithm itself is no longer driving innovation. On the other hand, a new vehicle engine design might not even see appreciable market penetration for a decade after introduction, as older cars are slowly replaced. Such a patent should live longer.

Re:My input on software patents... (2)

j. andrew rogers (774820) | about a year and a half ago | (#42477657)

"All software is, by definition, math. And all math, by definition, is not patentable."

The problem with this argument is that the same reasoning that defines software as mathematics also defines *all* patentable subject matter as mathematics. If you can describe it, it is literally a finite algorithm. If a software expression of an algorithm can be excluded on the basis that it is an "algorithm" then the argument can be applied to all subject matter. (see: algorithmic information theory)

What is not patentable are mathematical concepts, not specific processes that implement those concepts. You cannot patent the idea of "sorting" but you can patent a sorting algorithm. This is an important distinction: there are an unbounded number of sorting algorithms that can be invented that express the mathematical concept of sorting so inventing one particular expression does not preclude anyone else from inventing their own expression.

This does not speak to the "on a computer" type patents (which are silliness) but it is the reason that computer algorithm patents are generally accepted in most countries (yes, even Europe). A consistent policy that banned computer algorithm patents would ban most other types of patents as well.

Re:My input on software patents... (2)

jkrise (535370) | about a year and a half ago | (#42478047)

You cannot patent the idea of "sorting" but you can patent a sorting algorithm.

A sorting algorithm is still a computational idea. It does not result in any physical transformation.

A sorting algorithm could be used at a post office to sort letters. So let's say a patentee gets one on a sorting algorithm, which is very efficient.

Now say, this same algorithm is used to sort out rotten apples from a basket. Now, the patentee could sue the rotten-apples-sorter for violating his sorting algorithm patent.

The fact is that the patentee saw only one limited use for his algorithm, Implementation of the algorithm for totally unrelated tasks now becomes violative. This is not desirable.
---------------
One of the recently invalidated Apple patents referred to dragging a finger at less than 18 deg over a touch surface; being interpreted as a horizontal gesture. Such a gesture could be used and interpreted for hundreds of resulting actions, completely different to the use cases for which Apple thought of. Should the very act of a horizontal swipe on a touchscreen be restricted to Apple?

Re:My input on software patents... (1)

presidenteloco (659168) | about a year and a half ago | (#42478141)

Why is "sorting" a concept or idea, but "quick sorting" (that is "sorting by doing this then this and this") not a concept or idea?

It's just a more specific concept or idea.

You are on thin philosophical ice.

Re:My input on software patents... (2)

ljw1004 (764174) | about a year and a half ago | (#42477795)

All software is, by definition, math. And all math, by definition, is not patentable.

Which definition? I've not seen one. Can you show me a precisely worded definition of software that justifies your claim?

Re:My input on software patents... (0)

Anonymous Coward | about a year and a half ago | (#42478133)

I disagree with your input, because math occurs in the human brain, but software is implemented on a machine, thus making it an objective invention, not merely an idea, and hence patentable IMHO.

Keep It Simple Stupid (5, Insightful)

presidenteloco (659168) | about a year and a half ago | (#42477275)

No software or algorithm patents.

If you really want to keep something exclusive, keep it hidden, call it a trade secret, and sue anyone who leaks it.
Unless you are Einstein, someone else will think of it fairly soon anyway, because it's obvious to those at the leading edge of whateever specialty, so keeping it a secret may be bad social form but is not really harmful.

Re:Keep It Simple Stupid (2)

Maximum Prophet (716608) | about a year and a half ago | (#42477431)

Also, you have to build it before the patent will come.

This, "Let's patent a crazy idea about a brain interface that reads your every thought", without even a plan to build a prototype is nonsense.

Re:Keep It Simple Stupid (1)

Dracos (107777) | about a year and a half ago | (#42478289)

Also, you have to build it before the patent will come.

Not anymore. Last year US patent law was changed from "first to invent" to "first to file", meaning if you can write a patent application, you can get a patent for something you haven't invented yet.

Re:Keep It Simple Stupid (1)

SteveFoerster (136027) | about a year and a half ago | (#42478501)

Right, he was making a suggestion, not lamenting about the current state of things.

Re:Keep It Simple Stupid (1)

tlhIngan (30335) | about a year and a half ago | (#42478555)

No software or algorithm patents.

The problem is it isn't as simple. If we roll back 50 years, it was relatively simple - written works were copyrighted (typically), hardware things were patented.

Software changed all that. All of a sudden you have written works doing hardware things. So do you copyright them, or patent them? Or both?

Let's ignore pure software first, and let's go with say a photocopier. In the past, they were hugely mechanical contraptions where a drum was charged, then a scanning head sent light down some complex optical path to hit the drum and paper was fed.

These days, it's software controlled - instead of mechanical gears timing it out on old "analog" copiers, you have a little microcontroller sequencing stuff. What would its software state be? A patent as part of the whole copier engine? Copyright the software part, patent the hardware (including the use of a microcontroller)? And nowadays, pure digital copiers (basically a scanner and printer in one) have replaced the complex optical path with wires. What happens now?

Or say an engine controller - you come up with a way to save fuel that relies on trickery in software in cooperation with hardware. Do you copyright the software, patent the hardware (which may be just a combination of existing parts, but the software adds the novelty)? Or do you patent the entire thing, including the ECU software (that helps save fuel)?

And what if you invent some new way of making a CPU faster, but do it in an FPGA? Is the RTL only copyrightable? Or patented? After all, it can be hardware (silicon) in the end, or it can remain as software implemented in VHDL or verilog.

Then you take these examples, and slowly extend them to using a general purpose computing platform and you end up right back at the same problem - where do you draw the line?

Modern things are powered by software, but do we rule that anything we invent using software to drive hardware in new and novel ways is unpatentable? What if a better software-controlled mousetrap was invented?

Even better - what if we were to implement something that was done in software in hardware? is THAT now patentable because it's pure hardware?

And therein lies the problem - software is a very different beast than what we had before. It's written, but it is often used to glue together hardware that would otherwise take lots more hardware or be impractically big.

Heck, Steve Wozniak saw this transition - back at Atari, they used to do games with discrete logic - building the entire game logic in hardware (including all the hairy warts of trying to debug the mess). Then the microprocessor came along and simplified a lot of the logic - instead of having to have hundreds of discrete TTL chips, you have just a handful, and the thing that replaces those hundreds of chips is just pure bits.

More charades. (2)

ReallyEvilCanine (991886) | about a year and a half ago | (#42477317)

The USPTO was "asking for input" since before software patents were allowed some 30 years ago. They ignored it then ("already covered by copyright") as they will continue to do because the then-outrageous and intractable idea of USPTO-as-Service-Provider under Reagan has become the de facto standard rather than the egregious outlier. Fallacy of the Middle Ground. [wikipedia.org]

NYC Feb 27 - I'll try to make it - Slashdot meet? (5, Interesting)

MetalliQaZ (539913) | about a year and a half ago | (#42477325)

Perhaps Slashdotters in the areas around these meetings would like to get together to plan, practice, and eventually travel to these meetings? Beers/Sodas after the meetings are suggested.

show us one good software patent (5, Insightful)

johntromp (565732) | about a year and a half ago | (#42477355)

Has the USPTO presented specific examples of what they consider to be excellent software patents? That should help focus discussion...

how about...? (1)

Anonymous Coward | about a year and a half ago | (#42477401)

I'd like to suggest... doing SOMETHING besides posting /. comments... you know, like participating in this partneship.
crazy aw?!

USPTO should data-mine slashdot (1)

presidenteloco (659168) | about a year and a half ago | (#42478275)

to get the software geek perspective on software patents, if they really want it. Enough feedback has already been given, believe me.

They could search for all slashdot articles with "patent" in the title, and throw it into Wordle http://www.wordle.net/ [wordle.net] for starters.

Re:USPTO should data-mine slashdot (1)

steve79 (1368223) | about a year and a half ago | (#42478429)

If they did this they'd get a lot of unhelpful rhetoric.

Questionable summary (1)

Grond (15515) | about a year and a half ago | (#42477467)

Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued.

Really? How many software developers (not companies, individual developers) have been sued for patent infringement? How often do software developers make the independent decision to design around a software patent, as opposed to being told by management to do so? The fact is that individual developers are actually some of the folks least immediately or directly affected by software patents. They don't get sued, and software patents largely don't affect their day to day work.

Bear in mind that there are perhaps a 1000 patent infringement suits filed per year that involve claims at least tangentially related to software. Many of them feature the same defendants over and over again, and many of the defendants are not primarily software companies. Two years ago there were over 56,000 software companies listed on LinkedIn, and I imagine there are more now. That's a very rough estimate, but the point is that a statement like "no one can code anything without potentially getting sued" is true only in the loosest sense. In fact most software companies will never be sued for patent infringement.

Slashdot has been reporting on the coming software patent apocalypse for over a decade now, and it still has yet to materialize. Software and hardware development continue at an incredible pace rarely seen in history or in any other industry. The software and hardware industries continue to grow. And the United States, with all of its software patents and related litigation, continues to be a leader in these industries.

There are problems with the patent system, and software patents are not immune to those problems. It may even be true (although essentially impossible to prove) that software patents are a net drain on the industry. But it is clearly not the case that software patents are crippling developers or causing everyone to get sued.

Re:Questionable summary (0)

Anonymous Coward | about a year and a half ago | (#42477667)

Regardless of any pros or cons, it is clearly the case that software patents are illegal, since software is mathematics.
If Congress wants them to be legal, they have to write a statute to do so.
In the meantime, USPTO is breaking the law.

Re:Questionable summary (3)

Grond (15515) | about a year and a half ago | (#42477875)

software patents are illegal, since software is mathematics.

Good thing "software patents" don't actually claim software per se but rather methods of programming or using physical computing devices.

Consider this highly simplified claim: "A method for displaying a line on a computer screen, comprising using Bresenham's line algorithm [wikipedia.org] to draw the line on the computer screen." Suppose that the patent applicant was Bresenham himself and the method was new.

This claim does not claim mathematics. The algorithm itself can, of course, be reduced to a proof, per the Curry-Howard correspondence [wikipedia.org] . But "a computer screen" is neither software nor mathematics. No amount of thinking about mathematics well ever result in a line appearing on a computer screen. You need hardware to do that. And since the computer screen is an essential element of the claim, mathematics alone (such as the aforementioned proof) will never infringe it.

If Congress wants them to be legal, they have to write a statute to do so.

What in the patent statute prohibits software patents? How is new, useful, and nonobvious software not an improvement of a machine (namely a computer), per 101? How is new, useful, and nonobvious software not a a new use of a known machine, per 100 and 101? It seems to me that the plain language of the patent statute clearly encompasses software, and that it is the judicially-invented "abstract idea" exception that potentially prohibits them.

Re:Questionable summary (1)

Anonymous Coward | about a year and a half ago | (#42478017)

If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!
You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.
If a physical object is not essential, then it's not patentable.
Either way, I get to ignore the "ownership" of algorithms.

Re:Questionable summary (3, Interesting)

Grond (15515) | about a year and a half ago | (#42478291)

If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!

The patent doesn't claim that the screen is itself new or patented. The patent claims the method of displaying a line on any computer screen. It's no different than a patent on, say, a method of catching mice using a bucket of water, a ramp, and a piece of bait dangled above the bucket. It doesn't matter where you get the bucket, the ramp, or the bait. The patent covers the method of using these pre-existing objects together to catch mice.

You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.

I'm not trying to have it both ways. This is a long-settled area of the law, codified in the statute. The end users would be directly infringing the patent, and you would likely be liable for indirect infringement [ladas.com] . Imagine a patented mechanical device that is held together with screws. If someone sells all of the parts, minus the screws, plus instructions on how to put it together and where to buy the screws, that's indirect infringement. In this hypothetical you're distributing the software knowing that end users will use it in an infringing manner with their computer screens (which, again, could be any kind of computer screen).

Re:Questionable summary (0)

Anonymous Coward | about a year and a half ago | (#42478465)

"No amount of thinking about mathematics WELL ever result"

WTF? Let me guess, you're an American.

Will, well, what's the difference?
Than, that, then - they're all the same, aren't they!
They're, their, there, all the same meaning, right?
Your, you're, exactly the same...

Oh, and the latest stupidity I've seen coming from AMERICANS is using 'sense' instead of 'since'! Unbelievable. Don't you actually understand what the words MEAN? Do you just type in whatever sounds sort of similar?

Re:Questionable summary (0)

Anonymous Coward | about a year and a half ago | (#42477955)

The only reason I haven't gone out and started my own company is the fear of patent suits. If I create a web application, I don't want to grab 3% of the market my application serves, catch the eye of the market leader, then be sued into oblivion. Even if the lawsuit is totally bogus, I don't want to spend time or energy dealing with it, and more likely than not the lawyer fees and court costs alone would bankrupt me.

Software patents are like guns. Relatively few people shoot a gun in self-defense, but knowing that a person may be carrying a gun deters a lot of criminals, and that effect can never be quantified. There may be only 1000 patent suits a year, but how many (tens/hundreds of) thousands of developers choose not to start their own company because of this threat?

Re:Questionable summary (0)

Anonymous Coward | about a year and a half ago | (#42477979)

http://en.swpat.org/wiki/NetApp's_filesystem_patents

One single developer affected by software patents (0)

Anonymous Coward | about a year and a half ago | (#42478229)

I'm a single software developer (although I have a company) and I have been pursued on multiple occasions by patent attourneys and wasted a large pile of money on that. I design around patents that are being actively litigated (or have done in the past) regularly because if you don't - you're an idiot. I have also invented software independently that someone else patented later (and tried to license to me.) I believe some inventors need protection, but the implementation and consequences of software patents is so awful, I think software patents should be abolished for the good of the industry. Patents are a minefield and only attourneys benefit.

Congress makes patent law. (0)

Anonymous Coward | about a year and a half ago | (#42477715)

USPTO cannot change the law, that is up to congress, the president, and/or the supreme court. They can however change the process (to get a patent) - in particular they can make it more transparent (e.g solicit public input - "crowd-source" the prior-art search).

Arrogance (0)

Anonymous Coward | about a year and a half ago | (#42478009)

It always amuses me that software developers think they are somehow immune from the rules the rest of the world lives under.

Software patents - we don't care!
Copyrights - we don't care!

I haven't heard a single valid argument for why software is any different than any other discipline.

I can advance several legitimate arguments as to why software patents are a GOOD idea.

For example: you know that awesome startup you wanna create someday by coding some amazing app in your mom's basement? Good luck being successful with that without software patents. Copyrights dont really cover anything other than literal copying. There's a very good reason some large software companies are very anti-patent. It's so they can monitor the market for disruptive ideas and then copy them and use their market power to dominate the market.

It's just crazy how much software engineers cry about software patents. No other industry whines quite like computer programmers.

I've also never seen a group quite so misinformed about patents as the slashdot crowd. It seems that every other day there is some anti-patent article about how Megalith corporation has now patented binary numbers. This conclusion is usually based on reading the title of the patent, and in some cases the abstract. Neither of which by the way have any legal significance. Read the friggin claims people! I know its hard, and requires more than 10 seconds of thought, but you look foolish and stupid doing that.

Oh and your argument that software patents are evil because old stuff is being patented also is not an argument to outlaw software patents, but is an argument for improving the examination of software patents, because by law a software patent must be non-obvious and be novel.

You Paint Yourself with the "Arrogance" Brush (2)

Press2ToContinue (2424598) | about a year and a half ago | (#42478189)

"I haven't heard a single valid argument for why software is any different than any other discipline."
Then you haven't been listening.

Re:You Paint Yourself with the "Arrogance" Brush (0)

Anonymous Coward | about a year and a half ago | (#42478403)

"I haven't heard a single valid argument for why software is any different than any other discipline."
Then you haven't been listening.

Good one. Care to share?

Re:Arrogance (1)

0123456 (636235) | about a year and a half ago | (#42478199)

For example: you know that awesome startup you wanna create someday by coding some amazing app in your mom's basement? Good luck being successful with that without software patents.

Good luck coding that amazing app with software patents, because the patent trolls will take any money you make.

Hardware patents are moderately justifiable since building a new jet engine costs many millions of dollars and I can't violate your patents in my basement for $500. Software patents are simply retarded, since anyone who downloads a free compiler can violate them, probably without even realising.

Re:Arrogance (0)

Anonymous Coward | about a year and a half ago | (#42478447)

Yet, you still haven't explained how exactly this is different from any other industry? Method patents cover methods of using something - therefore you could violate a hardware patent just by using it. Just because software is easy to produce and sometimes free doesn't mean that ALL software is easy to produce and free.

As for trolls, that's a business risk. Same risk as any other business faces from frivilous lawsuits. How many slip and fall cases have been paid out that were bogus?

Re:Arrogance (4, Insightful)

fritsd (924429) | about a year and a half ago | (#42478303)

I haven't heard a single valid argument for why software is any different than any other discipline.

Really? Oh.

Here are a whole bunch of them, each one carefully reasoned out and commented on:
http://www.groklaw.net/staticpages/index.php?page=Patents2 [groklaw.net]

"Software Patents
Here are some of the articles Groklaw has published on software patents, particularly in support of the claim that software is mathematics and hence unpatentable subject matter."

Re:Arrogance (1)

Steauengeglase (512315) | about a year and a half ago | (#42478363)

"No other industry whines quite like computer programmers."

So Dashiell Hammett's estate should have been allowed a patent for the crime novel?

Re:Arrogance (1)

steve79 (1368223) | about a year and a half ago | (#42478625)

Depends, is the novel novel?

Use something like Church-Turing (1)

onebeaumond (1230624) | about a year and a half ago | (#42478075)

One implication of the Church-Turing hypothesis is that any algorithm can be "emulated" by an infinite number of other algorithms. So the "patent universe" could be considered an entropic system; where a new algorithm's value drops as other algorithms relentlessly take its place. The time constant currently granted by the USPTO is probably much larger than reality, for most situations (just guessing here).

Software is not of patent-able matter (1)

3seas (184403) | about a year and a half ago | (#42478187)

Of the things universally accepted as not being patentable are:
Physical Phenomenon
Natural Law
Abstract Ideas
and of these three comes Mathematical Algorithms

So what is software? Its all of these!
http://abstractionphysics.net/pmwiki/index.php [abstractionphysics.net]

Software: Patents or Copyright (2)

gQuigs (913879) | about a year and a half ago | (#42478281)

Not both. If you get a patent you have to release the source in the public domain.

From Wikipedia:
A patent ... to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention.

Re:Software: Patents or Copyright (3, Informative)

steve79 (1368223) | about a year and a half ago | (#42478487)

You are incorrect, sir. You do not need to release the source code. This was true back in like the 1980s (or common practice then, anyway). Nobody release code for their software patents these days b/c it is simply not required. You must describe the general algorithm in sufficient detail to enable one of ordinary skill in the art, without undue experimentation.... this is a far cry from source code.

USPTO is not a law-making body (2)

seattle_coder (708761) | about a year and a half ago | (#42478375)

Because the USPTO can only make policy and not make law, they cannot do away with software patents. Congress has said software patents are legal. It would take legislation to get rid of them. I personally would love to see software patents go away. But the goal of the effort mentioned in TFA is to "improve the quality" of software patents. Telling the USPTO that software patents need to go away would be a wasted effort. That energy needs to be directed at lawmakers.

Software Patent Attorney's Perspective (1)

steve79 (1368223) | about a year and a half ago | (#42478393)

Most of the comments here echo a prevailing view of most software developers: just ban software patents. A lot of rhetoric, not much in the way of thoughtful analysis.

Consider this: In a few milliseconds, you can search just about every web page that exists in the world, while driving your 55 mpg vehicle to get a magnetic imaging scan @ the hospital, and while waiting there you can use your iPhone to call any other person having a cell phone, in the whole world. All brought to you by innovative software...

But those on these boards don't seem to recognize this -- I think it's a case of a few bad patents spoiling the bunch, frankly. It would be nice to at least have the haters concede some of the good points of software patents. If one can think of none, then the intellectual blinders are on, because without question it is a mixed bag -- there is good, and there is bad that comes w/ time-limited monopolies. A better discussion would focus on the pros and cons and the balance.

Also: is it merely coincidence that the most innovative software companies set up shop in countries where there is the most protection available for software innovations? How many tier 1 software companies exist where there's no protection? (I'm sure there are a few, but the VAST majority of tier 1 software companies are in the USA -- think Google, Apple, MS, Adobe, etc. etc. etc.).

defining terms would be a good start (0)

Anonymous Coward | about a year and a half ago | (#42478437)

for example, what exactly is meant by a 'software patent'? Any technology that could be implemented by using a program running on a programmable device? That's pretty broad. Example: many of the techniques in compression are, in fact, signal processing patents; yes, they are implementable in software, but also often implemented in hardware. (Yes, there are many patents on apparently trivial coding or representation issues, as well).

Personally, I would like a much more stringent test for obvious-ness and prior art. Some 'software patents' really are the result of much research and brilliant insight, and I don't see an a priori reason to ban them. But the 'noise' of 'nuisance patents' is a pain for everyone.

If doing X is not patentable (0)

Anonymous Coward | about a year and a half ago | (#42478451)

then doing X on a computer should not be either.
      Where 'on a computer' includes any and all lawyer rewrites to get around the restriction.

X might not be patentable because it's been done in other ways for a long time, or because it's a part of nature, or simply a non-patentable idea.

It should be presumed that in this day and time, it is obvious to do anything on a computer.
      so the dim bulb idea of 'hey, let's do it on a computer' should not be novel.

Disclosure for a software patent should ALWAYS include the source code for a working model.
      The office has the right to ask for one, but they often don't because it's a lot of trouble.
        In the special case of software, it's not any trouble, so they should always require it.
        Of course, if the code is later found to not do what is claimed, then the claim should be thrown out.
                (Both because the applicant didn't teach what he should have and because he probably didn't know how to do what he claimed.)

With these restrictions, software patents will still be permitted, not probably not preferable.
        (Why not just get a broader patent on X in the first place.

     

What do people think about a middle ground. (1)

plebeian (910665) | about a year and a half ago | (#42478463)

Instead of issuing software patents with a 15 year protection period, how about we give inventors a shortened time-frame (3 years to) sell their product if they have demonstrated that have sales of a product and are willing to license it on the open market we extend protection to a full term (10 years). This way patent trolls would loose their protection unless they are actively leveraging their patent portfolio. Obviously the numbers could be negotiated and the definition of sales would have to be clarified to minimize abuse. Given the rate of change in the software world if you don't have sales within three years, your invention should become public domain so that other people can improve upon it without threat of litigation.

Don't fight the novelty argument (0)

Anonymous Coward | about a year and a half ago | (#42478477)

I hope everybody doesn't go after the novelity argument. Instead I'd like to see the patents challenged on the value of disclosure taking into consideration how the industry works. It is a common practice (at least in my neck of the non-American woods) for developers to be told to ignore patents, as the cost of licensing would be too great. Better to sort it out after the fact. Essentially what our legal departments are telling us is that the disclosure has no value since we will actively seek to keep ourselves ignorance to minimize damages. If there is no value in disclosure (the whole point of a patent!), then why do we grant a monopoly?

Why? (0)

Anonymous Coward | about a year and a half ago | (#42478483)

They'll just 1>/dev/null anyway.

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