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EFF Proposes a Working Code Requirement For Software Patents

Soulskill posted about a year and a half ago | from the system-and-method-for-manipulating-0s-and-1s dept.

Patents 130

Juha Saarinen sends news that the Electronic Frontier Foundation has proposed a fix for software patents in general and patent trolls in particular: requiring applicants to provide specifics about their solution. They say the applications should include working code, or at least "detailed, line-by-line notations explaining how their code works." "And if they do get a patent, they should be limited to the invention they claimed. We think software patents are bad news, and incredibly harmful to our society and economy. We wish we didn’t have to deal with them at all. But by fixing the functional claiming problem, and limiting patentees to a narrow invention that they actually came up with, we would also limit the amount of harm those patents could cause. The Patent Office does not (yet) have the power to get rid of software patents entirely, but it can fix the functional claiming problem."

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130 comments

first (-1, Redundant)

CosaNostra Pizza Inc (1299163) | about a year and a half ago | (#42911935)

first

Re:first (1)

Dexter Herbivore (1322345) | about a year and a half ago | (#42912181)

I'm saddened by your choice to 'first' after reading your screen name.

Re:first (1)

SomePgmr (2021234) | about a year and a half ago | (#42913067)

Snow Crash, right? Good thing he got it before the movie. :)

Re:first (1)

Dexter Herbivore (1322345) | about a year and a half ago | (#42913333)

Yeah, Snow Crash. Last night I happened to catch an 'indie' comedy on one of our Aussie channels called something like "Party Down" with a 10 minute discussion on Snow Crash at the start and references throughout the episode, it was similar to Entourage and I was saddened. :)

Re:first (1)

wonkey_monkey (2592601) | about a year and a half ago | (#42912389)

if (post.content=="first" && post.position()==0) post.delete();

Re:first (2)

rjstanford (69735) | about a year and a half ago | (#42913011)

if (post.content=="first" && post.position()==0) post.delete();

Remove && post.position()==0 and you'll have a winner.

Re:first (2)

moderatorrater (1095745) | about a year and a half ago | (#42913079)

It's weird that you have content as a public member but require a getter for position. Seems like you should be consistent one way or the other.

Re:first (1)

wonkey_monkey (2592601) | about a year and a half ago | (#42915665)

Seems like you should be consistent one way or the other.

Seems like you should shut yer yap! ;)

Matthew 20:16 (0)

Anonymous Coward | about a year and a half ago | (#42915861)

if (post.position() != 0 && post.content == post[0].content == "first" ) {
        char author[] = post.author;
        post.author = post[0].author ;
        post[0].author = author;
}

Incidentally (5, Insightful)

Anonymous Coward | about a year and a half ago | (#42911959)

This would also allow people who did license the patent to use the code rather than having to re-invent it themselves from scratch, or for that matter people coming along when it had expired...

Hang on isn't that half the point of the patent system? To grant a monopoly on an invention for a limited time in return for providing sufficient information in sufficient detail such that said invention can be replicated when the patent expires?

Re:Incidentally (5, Insightful)

DickBreath (207180) | about a year and a half ago | (#42912003)

In the case of software 're-invent it themselves' is equivalent to 're-implement it themselves'.

If I can re-implement it without any reference to the patent, and possibly without even knowing that the patent ever existed in the first place, then we're talking about something so obvious that it should not be eligible for patent protection.

If you can re-implement, you get a new patent (1)

Anonymous Coward | about a year and a half ago | (#42912753)

If you find a way to make your cold remedy better by changing how you make it, then you get another patent.

If you find a way to code up a software patent better by changing how you write it, then you get another patent.

Except in the latter case, you want that to be the same patent as the original.

Now why is that right?

Re:If you can re-implement, you get a new patent (1)

DickBreath (207180) | about a year and a half ago | (#42913269)

If I can code up some supposed 'invention' that is pure software, then I don't want it to be the same patent -- I want to INVALIDATE the patent. If it's a novel invention, then I should not be able to easily reproduce it without the information in the patent itself.

Re:If you can re-implement, you get a new patent (1)

PoolOfThought (1492445) | about a year and a half ago | (#42913941)

So if two or more people can possibly think of the same physical idea and they can also build it then the invention should not be patentable? That's quite a different take on the matter...

Re:If you can re-implement, you get a new patent (0)

Anonymous Coward | about a year and a half ago | (#42914587)

Patents have to be non-obvious [wikipedia.org] (Wikipedia link to discussion of the legal term "non-obvious" in this context).

One of the main requirements of patentability is that the invention being patented is not obvious, meaning that a "person having ordinary skill in the art" would not know how to solve the problem at which the invention is directed by using exactly the same mechanism.

So, yes, if the patent describes a method for writing a program that is more or less the same as you would get if you asked a random skilled programmer to write a program to perform the same task then it should not be patentable.

can't prove a negative (1)

Chirs (87576) | about a year and a half ago | (#42914103)

It's really hard to prove that you never looked at a patent when implementing something.

The only way for this to work would be if it applied between the time of patent application and the time of patent granting. If multiple applications cover the same thing, then rather than "first to file" all the applications for that patent should be invalidated.

a reasonable proposal for all patents (1)

Chirs (87576) | about a year and a half ago | (#42914067)

If someone files a patent, and if before it is granted someone else files for the same patent, then both should be invalidated due to being obvious.

Re:Incidentally (1)

briancox2 (2417470) | about a year and a half ago | (#42912671)

In addition, this also allows code to be written that does something very similar, which doesn't actually infringe on an existing patent. Coming up with a new way of doing the same thing has always been protected by the patent system ... until hidden mathematical formulas (code) began to be patented. In fact, mathematical formulas are the first kind of patent that doesn't require disclosure of how it actually works.

Once you have working code . . . (4, Insightful)

DickBreath (207180) | about a year and a half ago | (#42911965)

The question could be asked, why isn't Copyright protection sufficient for your code?

If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.

Re:Once you have working code . . . (1)

mark-t (151149) | about a year and a half ago | (#42912285)

6 words:

Alexander Graham-Bell vs. Elisha Gray.

One excellent example of practically simultaneous invention.... was it therefore too obvious to have warranted a patent at the time?

I mean, quite frankly, I agree with you... at least in principle. But it's worth considering what it really means for future inventors.

Re:Once you have working code . . . (0)

Anonymous Coward | about a year and a half ago | (#42912373)

There is a bigger issue. If the copyright is to a specific implementation, then what about other methods to create the same effect. There are infinite number of combinations to create a single process result.

I don't know if I want to support a "functionally similar with a base code" patent system either.

Re:Once you have working code . . . (2, Insightful)

DickBreath (207180) | about a year and a half ago | (#42912427)

Was it therefore too obvious? I would say possibly, maybe probably.

Two practically simultaneous independent inventors should be evidence of obviousness.

Re:Once you have working code . . . (2)

bws111 (1216812) | about a year and a half ago | (#42913337)

How the hell can you say it was obvious? Do you even know what the word means? Do you think these two guys just woke up one morning, having never thought about the idea of a telephone before, and instantly knew exactly how to make a working telephone? Or do you think it is more likely that they, independently, spent many hours, days, months, or years thinking and experimenting before they found a solution that worked? Finding the answer at approximately the same time in no way indicates obviousness, it just demostrates that it is a good solution to the problem.

If you have to think about a solution to a problem at all then the solution is not obvious.

Re:Once you have working code . . . (1)

Man On Pink Corner (1089867) | about a year and a half ago | (#42913577)

Yes, the telephone was obvious. Anytime the issue is decided by a foot race to the patent office, you are dealing with something that would have emerged in due time without any artificial patent incentives.

Patents should be reserved for cases where the invention is (a) very expensive to develop and bring to market, and (b) otherwise vulnerable to being guarded as a trade secret, in a way that would harm progress in the field if not disclosed. The telephone doesn't count, and neither do most software and business-method patents.

Re:Once you have working code . . . (2)

bws111 (1216812) | about a year and a half ago | (#42914173)

Anytime the issue is decided by a foot race...

Evidence, please? Here you have two people who clearly were motivated by patents (or else they wouldn't be racing to the patent office), who, after a period toiling, came up with a solution to a problem. And from that, you somehow make the enormous leap that 'it would have happened anyway'. Where is the proof of that? And by the way, the purpose of patents is to encourage progress, not 'let it happen in due time anyway'.

Patents should be reserved...

According to who? That may be what YOU happen to wish patents are, but it was clearly not what the US patent system was ever intended be be. If it were, Thomas Jefferson would not have made the criteria for something being patentable

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

Not a word in there about in there about being expensive or trade secrets or any of the other nonsense you wrote. Any new or useful process...

Was the telephone new? Undoubtedly. Was it useful? Certainly. No reason it wasn't patentable at all.

Re:Once you have working code . . . (1)

PoolOfThought (1492445) | about a year and a half ago | (#42914403)

For you to argue that when the two people have the same idea at close to (or even exactly) the same time that the idea must therefore be OBVIOUS is ludicrous. To then go on to state that it would have "emerged in due time without any patent incentives" (and I assume you mean no other "artificial incentives" too) means you don't GET IT.

It's ludicrous because creative, intelligent people often come up with the same answer to the same question - only it's relatively rare that they're focus is on the same question at the same time. Even rarer is that they're bothering to focus on something "trivial" and obvious. People (especially these types) know when they're on to something and they know when something is so trivial that they can just hand it off to someone else and save their own brain cycles for more complicated matters.

It's obvious that you don't GET IT because while you obviously "know" that the patent system is meant to spur people to innovation and to give them a reason to bang their head against a wall in failure over and over again in the hopes that they'll eventually have a breakthrough you don't seem to GET why the incentive is there. Incentives and psychological quirks are about the only thing you can uses to get someone to do that. That patent system is the incentive.

You're technically right that it would eventually have been invented by someone else. Maybe when Edison's (or his competition's) offspring came of age he/she would have gotten hold of dad's notes and solved the problem. Maybe some other random person was also working on it. But the important thing is that the WORLD got the knowledge and the know how of that tech RIGHT THEN. They didn't have to wait until "due time" had passed. They didn't have to sit around in the effing dark waiting on due time. Time is precious, and waiting for "due time" is surely a waste considering that a society (and a given science for that matter) often CANNOT move on to other breakthroughs until first handle the ones that are necessary precursors.

but if they both spent lots of time (1)

Chirs (87576) | about a year and a half ago | (#42914131)

how does it make sense that the first one to file for a patent gets *all* the rights and the other guy gets none of them?

The whole point of the patent system is so that knowledge doesn't get lost. If multiple people independently invent something (regardless of how much time was involved) then by definition that thing is not so original that only one person in the world could figure it out.

Re:Once you have working code . . . (1)

PoolOfThought (1492445) | about a year and a half ago | (#42914511)

I'm not arguing with you bws111, but I do want to add an important note. Obviousness in the patent office is actually a little more specific. Obviousness is determined by whether a solution would be "obvious to someone who practiced in the field". So, would a car part be obvious to someone who worked in automotive / engineering is the real test for obviousness.

I'm guess that these were not the only two guys working on this task. I'm also relatively confident that they were experts in their fields. That it was not obvious to them or to those practicing in their field is what really makes it non-obvious. And just because someone 50 years or 200 years later says "That's stupid obvious because I learned about the principles that make it all work in 2nd grade" doesn't mean it was obvious at the time of the invention... even to the greatest minds at the time.

Re:Once you have working code . . . (1)

bws111 (1216812) | about a year and a half ago | (#42914675)

Yes, you are correct. Thanks for the clarification.

Re:Once you have working code . . . (1)

bws111 (1216812) | about a year and a half ago | (#42914811)

Actually, to further clarify, the exact phrasing in the law is "... would have been obvious at the time the invention was made to one having ordinary skill in the art..." (emphasis mine). So the fact that the answer was obvious to some genius has no bearing, it must be obvious to an ordinary practitioner of whatever field the subject is in.

Re:Once you have working code . . . (1)

PoolOfThought (1492445) | about a year and a half ago | (#42914941)

Yeah, I knew I left out a word and I thought it was important... didn't realize it was THAT important! It reminds me of the scene in the first Iron Man when Jeff Bridges character is getting all mad at his scientists for not being able to miniaturize the "arc reactor". The scientist on staff are almost assuredly at least ordinary skill in the art or better. They try to explain to him that it's "impossible" and he gets very upset:

Bridges: "Impossible? Tony Stark built this in a cave! From scraps!"

Scientist: "I'm sorry, sir. I'm not Tony Stark"

Me: I don't give a damn if he built it in a cave out of his own poop. It wasn't obvious to anyone, not even him, much less someone with ordinary skill in the art.

The funny thing is, if he handed over the plans for it, the engineers would have taken one look at it and gone "wow!" and then in the next breath might very well have gone, "oh... well that SHOULD have been obvious - we'd just never thought about like that before".

Re:Once you have working code . . . (1)

drakaan (688386) | about a year and a half ago | (#42912457)

Some would say that it was more than a case of simultaneous invention [wikipedia.org] ...for future inventors (not programmers...inventors) it means very little.

Re:Once you have working code . . . (2)

jbeaupre (752124) | about a year and a half ago | (#42912369)

Or why aren't patents and copyrights mutually exclusive? How can you claim something is a patentable invention and copyrightable work of art?

Re:Once you have working code . . . (0)

Anonymous Coward | about a year and a half ago | (#42912797)

Because patents and copyrights cover different aspects. Patents cover how you do it, copyrights cover how you express it.

For example, imagine someone would have a patent on quicksort, but decided to make his code public domain. Then you would have to get his permission for any quicksort implementation (including those which were written without even knowing his code), but you could freely copy parts of his code if you considered it useful for your insertion sort implementation. On the other hand, with unpatented quicksort but copyrighted implementation everyone is free to write his own implementation, but you cannot copy some parts of his implementation without his permission, neither for your own quicksort, nor for any other purpose. Of course with both patent and copyright, he can both deny you any quicksort implementation, and any code derived from his code.

Re:Once you have working code . . . (1)

DickBreath (207180) | about a year and a half ago | (#42913379)

I don't claim that software is a work of art. Some do. I would be willing to claim that some software may be a work of art if there is something particularly artful about it.

Things other than works of art do have copyright protection.

Furthermore, I do NOT claim software is a patentable invention.

I cannot tell, but you might be in agreement that software should not have patent protection.

Re:Once you have working code . . . (1)

Bomazi (1875554) | about a year and a half ago | (#42912377)

I think we could take care of the obviousness criterion with something like this:

To submit a patent you should be required to provide a spec, an implementation, and a reward. Then the spec is published and if anyone can come up with an alternate implementation within a few days (or weeks), or prove that the submitted implementation doesn't work, he gets the reward and the patent is refused, otherwise the submitter keeps the reward and the patent is granted.

In addition, every time you submit a patent that gets rejected, the reward doubles.

Re:Once you have working code . . . (1)

PoolOfThought (1492445) | about a year and a half ago | (#42914695)

Why? If you can come up with an alternate implementation that gets the job done, doesn't step on the patent, and is good enough for you then just use it? Who gives a shit if the other guy has a patent on his own little implementation?

I suppose it the guy came up with a GREAT implementation and your implementation only just kinda works (slower, more memory usage, fails in certain cases, etc) then they actually came up with something valuable and it was in fact not obvious. They shouldn't be penalized for spending the time to create an optimal solution (you know, the one people will actually want to use) just because you could come up with a shitty one.

Re:Once you have working code . . . (1)

Grond (15515) | about a year and a half ago | (#42912449)

The question could be asked, why isn't Copyright protection sufficient for your code?

Because copyright only protects the non-functional creative expression, not the functional aspects of the code. 17 U.S.C. 102. The patent, correspondingly, protects only the functional parts. This is the requirement that an invention be 'useful' as found in 35 U.S.C. 101. The two forms of intellectual property cover entirely non-overlapping subject matter.

And this is not an academic distinction. Consider, for example, a server-based web application. Your code, even your object code, is entirely hidden (barring a security problem). In theory you do not even need copyright; trade secret protection would suffice. But a patent lets you protect the functional aspects of the application.

Or consider a hypothetical hybrid open source-proprietary project. The source code is open but some functional aspects are patented. Anyone who makes a derivative work has a license to use the patent (so forking is okay), but competitors can't make a wholly proprietary version that implements the patented features. The open source license relies on copyright; the patent license gives the hybrid project some leverage against proprietary competitors.

If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.

Unlike copyright law, patent law does not recognize independent invention as a defense to infringement. Why should inventions that involve a computer be treated differently than, say, a mouse trap in that regard?

So no copyright on an OS code . . . (0)

Anonymous Coward | about a year and a half ago | (#42913165)

Functional, not expressive.

Object code (for anything) is not expressive, purely functional. Therefore no copyright there either.

I don't think you want to go there...

Re:So no copyright on an OS code . . . (2)

Grond (15515) | about a year and a half ago | (#42913325)

Object code (for anything) is not expressive, purely functional.

No, it is a literal expression of the creative decisions made at a higher level.

By analogy, consider an oil painting and a JPEG representation of that oil painting. The oil painting is a creative work of authorship fixed in a tangible medium of expression. In a sense, the JPEG is a functional thing: it describes how to produce an image that represents the oil painting. Much of the nuance of the original is lost: it is two-dimensional, digital, etc. But the JPEG is also a derivative work that expresses many of the creative decisions made in the original work. And so the JPEG is also a creative work.

The same is true of source code and object code. A contrived example may show the principle more clearly. Consider a program that creates poetry based on aesthetic rules created by the programmer. The source code is certainly a creative expression, but so is the object code. It contains and expresses those same creative aesthetic rules, albeit in a very literal way, without the nuance of, e.g., variable names or comments. There has been a certain amount of reduction of expression as a result of the compilation process, but many elements of creative expression are still present.

Re:So no copyright on an OS code . . . (0)

Anonymous Coward | about a year and a half ago | (#42913763)

No, the object code is entirely functional. It expresses NOTHING.

When run on a computer, that could be called expressive, but it is a performance then, and not fixed and therefore not copyrightable.

When you claim "The same is true of source code and object code", what you're saying is that the statement being brought in to this defence of why copyright isn't trumping patents ("copyrights cover expressive not functional art") isn't being applied at the moment. Which is ENTIRELY why I say "you don't want to go there".

Object code is not expressive. Therefore no copyright.

Source code IS expressive. Therefore it can have copyright.

Object is entirely NOT expressive. Not unless you're talking fiction, such as Cypher who no longer sees the code, sees blond, brunette, redhead.... If doesn't do a damn thing, not even teach.

Re:So no copyright on an OS code . . . (1)

Grond (15515) | about a year and a half ago | (#42914355)

When run on a computer, that could be called expressive, but it is a performance then, and not fixed and therefore not copyrightable.

This is...not even wrong. Consider a vinyl LP. If the music on the LP is played, that is a performance. But the LP is still a tangible medium of expression in which the work has been fixed. Similarly, running a computer program may be considered a performance, but the hard drive (or whatever medium) is still a tangible medium of expression in which the work (the object code) has been fixed.

Suppose someone wrote a program directly in machine code, as was done in the old days and is still done in some cases now. Would that not be a creative expression? What is different about machine code written by a human as compared to machine code created by a program from source code written by a human?

Anyway, you're making an argument about what the law ought to be. I am describing the law as it is. "At the other end of the abstractions spectrum, source and object code, which are the literal elements of a program, will almost always be found to be protectable expression unless the doctrines of merger and scenes a faire come into play." Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823 [google.com] , 836 (10th Cir. 1994) (emphasis added).

Re:Once you have working code . . . (1)

drinkypoo (153816) | about a year and a half ago | (#42912571)

The question could be asked, why isn't Copyright protection sufficient for your code?

The purpose of copyright in the USA is to promote production by securing the right to copy and thus promoting financial incentive. The purpose of patents is to provide financial incentive both to invent and to register, so that we can learn from one another's inventions. This is why software patents should require the inclusion of code or psuedocode, if they are to exist at all.

If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.

Obviousness is a separate metric. If someone else can independently find a different way to do the same thing, then they can patent it.

Re:Once you have working code . . . (1)

Seeteufel (1736784) | about a year and a half ago | (#42912765)

That is an immature idea, I am curious what the FFII says to all these EFF amateurish proposals.

Re:Once you have working code . . . (0)

Anonymous Coward | about a year and a half ago | (#42912855)

Wow, is that Insightful!!! It well illustrates the general naivety among the /. readership about intellectual property law.

Maybe we need better education.

Re:Once you have working code . . . (2)

bws111 (1216812) | about a year and a half ago | (#42913205)

It is obvious that you don't know what obvious means. It does not mean that someone working independently could possibly come up with the same solution. It means that no work is required to come up with the solution at all.

Re:Once you have working code . . . (1)

Anonymous Coward | about a year and a half ago | (#42913713)

It means that no work is required to come up with the solution at all.

Nothing ever could be done with "no work". Your definition is so strict that "obvious" carries no meaning because it is an impossibility. Since all words have meaning and your definition has no meaning, your definition is wrong.

Re:Once you have working code . . . (1)

bws111 (1216812) | about a year and a half ago | (#42914499)

The real world (and in particular, the law) does not exist in some literal, binary, geek universe. Ask a thousand ordinary sighted people how much work it would be to determine if the person facing them has a nose, and they all would say 'none'. Ask them how much work it would be to determine the other person's blood type, and the answer would be 'quite a bit'.

Solutions, not problems (4, Insightful)

Qzukk (229616) | about a year and a half ago | (#42911969)

The majority of the software patents I've seen are simply a statement of a problem, not a solution. They do nothing to promote the progress of science, and as such should not be considered valid patents, and the laws should be changed to make them not valid patents.

Following the EFF's proposition would be a good way to make sure that your patent states a solution and promotes the progress of science.

Re:Solutions, not problems (1)

DickBreath (207180) | about a year and a half ago | (#42912055)

Something that should never have been eligible for patent protection should not become eligible merely because it states a solution to a problem.

I'm going to patent my Bubble Sort code. I'll be sure to disclose working code written in Wang 2200 BASIC. It therefore states the solution to a problem. Therefore it should be granted a patent. That patent should cover the entire problem domain of sorting.

Re:Solutions, not problems (1)

Joce640k (829181) | about a year and a half ago | (#42912135)

Re:Solutions, not problems (1)

Grond (15515) | about a year and a half ago | (#42912607)

Your first example isn't very good. The first one, application number 10/437,822 for an IsNot operator in Basic, was abandoned for failure to respond to an office action. Basically the examiner said "this is not patentable" and the applicant gave up.

Re:Solutions, not problems (2)

Jason Levine (196982) | about a year and a half ago | (#42912643)

Or they describe a solution that existed before in the physical world and then tack on "But do that on the Internet" or "But do that using computers." Taking an offline process and doing the same thing online isn't a new invention worthy of patent protection.

YES (2)

Murdoch5 (1563847) | about a year and a half ago | (#42912015)

I fully support this, I don't even understand why you can patent something which doesn't exist, work and function to an exact specification. I think you should also have to submit the code with the Patent and only the revision or acceptable deviation off the original designs can count towards the patents itself. Software patents are a horrible concept already so lets limit them as far as possible.

Re:YES (1)

DickBreath (207180) | about a year and a half ago | (#42912073)

Yes, I support it, but it doesn't go far enough.

Re:YES (1)

Joce640k (829181) | about a year and a half ago | (#42912187)

"Far enough" being the scrapping of all trivial patents.

The ONLY problem with the patent office is that they accept the most trivial, obvious patents imaginable. Despite that fact that patents are supposed to only be granted for things that are novel and ingenious.

Re:YES (1)

DickBreath (207180) | about a year and a half ago | (#42912271)

Their rationale for that is, if it was obvious, then someone would have done it before.

That leads to the practice that the first person to do something totally obvious can get a patent on it.

They cannot seem to reason that: obvious things exist, someone has to be first to do something obvious, therefore merely being first is not proof of novelty. They need to work harder on determining what is novel.

But hey, being first is a quick and easy test for a patent examiner looking to rubber-stamp the largest number of patents to get a bonus. Plus, the patent office buys into the fallacy that more patents means more innovation. Cause and effect. Just like how the tides cause the moon.

Re:YES (0)

Anonymous Coward | about a year and a half ago | (#42912249)

When I was working in haptics and doing patent searches for stuff we were working on, I came across a patent for haptic holograms. No code, no device, not even how this was supposed to work at all. But there it was, a patent saying "I patent haptic holograms", with nothing else but a detailed scenario describing a hologram in a room and you can feel it. For any patent, you should prove you can build the damn thing. And for software patents, again it should be your novel solution to the problem, not some business model patent, on what a user is doing on your website.

Doesn't "slay" trolls entirely (3, Insightful)

stevejf (2724307) | about a year and a half ago | (#42912023)

This doesn't necessarily do away with patent assertion entities (trolls). Many PAEs are not actually the original inventors/assignees of the patents, but rather buy them later on and begin filing infringement lawsuits. This requirement would, however, reduce the number of startups-turned-trolls who filed and were granted patents but never followed through with development. It also might make the provisional application system more useful, allowing start-ups to file provisionals to establish priority, but also requiring them to develop a working prototype before granting a utility patent.

way to get the patent office to go for this (3, Interesting)

RobertLTux (260313) | about a year and a half ago | (#42912125)

separate the patent fees into a Prelim and a Filing fee. Then if you want to file a prelim patent (to get cover while you do the code) you then pay the Filing Fee to upgrade it to a Full Patent ap. If it gets rejected you can refile but you have to pay the Filing Fee each time (so try 12 times you pay the prelim fee and 12 filing fees).

This will also cut down on the "shotgun" approach to patents.

Oh and a Big Reform would be to autodrop patents in the form of X on %new platform% or X And Y Together (unless you bind them in a novel manner)

Re:way to get the patent office to go for this (1)

DickBreath (207180) | about a year and a half ago | (#42912309)

If you're looking to tweak fees as part of reforming the patent system, here's a simple idea.

The fee to file a patent that is rejected is large. The fee for filing a patent that is granted is small or free.

That aligns the incentives for how they should properly be. Trolls won't file a patent that they aren't sure will stand up to scrutiny. Those who file bad patent applications pay for the staff and resources to give sufficient scrutiny to reject bad patents.

It protects small innovators who have genuine good patents to file.

Re:way to get the patent office to go for this (1)

Shagg (99693) | about a year and a half ago | (#42913253)

The fee to file a patent that is rejected is large.

Wait... they reject patents?

Re:way to get the patent office to go for this (1)

DickBreath (207180) | about a year and a half ago | (#42913777)

They would if the fee to do so were large.

There would need to be mechanisms so that unfairly rejected patents could be somehow appealed, and if later granted, there were some penalty to the USPTO. It needs to be carefully balanced to prevent an incentive for abuse. Right now the USPTO has no incentive not to abuse, and possibly has incentive to abuse to justify their existence.

Re:way to get the patent office to go for this (1)

jd659 (2730387) | about a year and a half ago | (#42913357)

The fee to file a patent that is rejected is large. The fee for filing a patent that is granted is small or free.

This will not work and will create the wrong incentives for the patent office to reject even the innovative and patentable idea.

What should be the "large" fee? Let's say filing a patent is free and the rejection is $10,000. Reasonable? For a small investor, the $10,000 might be a large enough fee not to file even the most brilliant idea, but for a large company that currently spends thousands of dollars on filing each patent $10,000 is nothing. So the large companies will keep on filing the silliest ideas, and this time the filing will cost them nothing.

The patent office will soon realize that they can MAKE money by rejecting the patents. What is their incentives then? To reject as many patents as possible. Even worse, the process of accepting patents will become rather random, again, hitting the small guys first (large companies will be able to file more random ideas and some will fall through the cracks).

Software and UI patents should be abolished to solve the issue.

Re:way to get the patent office to go for this (0)

Anonymous Coward | about a year and a half ago | (#42914905)

The incentives *should* err toward rejecting patent applications, and, in fact, it *used* to. Unfortunately, at some point the USPTO started evaluating their patent clerks based on number of patents *approved* rather than number of patents *examined*. Then, as patent filings increased, the incentive to approve patents was *aided* by the overwhelming workload. A typical patent receives *less* than 1 work day worth of examination from a clerk who isn't even *remotely* 'ordinarily skilled in the art' in question.

As a result, we have loads upon loads of poorly specified patents covering obvious and pre-existing 'inventions' that got past the examiners simply by being worded obtusely enough that they couldn't find prior art. (Note: Prior art is not *required* for a finding of non-obviousness, it's just a more definite way to prove it.)

Re:way to get the patent office to go for this (2)

Impy the Impiuos Imp (442658) | about a year and a half ago | (#42912619)

Extra costs will hurt small guys more than big ones, who are already probably spending a lot more on lawyers specifying things than the government fees.

In many cases it's about cockblocking competitors, not limited to trolls, and no little stinking fee is gonna get in the way of multimillion dollar operations.

Re:way to get the patent office to go for this (1)

RobertLTux (260313) | about a year and a half ago | (#42913045)

not "extra" fees as such but separating the existing fees into two parts (one of which can be charged more than once).

So Jim in his garage can dream up his actually novel idea (and get a patent) but Foo Co which has 100 offices throwing stuff at the patent office to see what sticks (and clocks up 1,000,000 filings) has a nive tidy bill to deal with.

Interface patents (3, Interesting)

concealment (2447304) | about a year and a half ago | (#42912027)

It seems to me like a lot of these patents are about interfaces, not algorithms or code. If you're patenting rounding buttons or that the software allows you to purchase with one click, the code is probably trivial. It's either a visual or interface idea.

Re:Interface patents (3, Insightful)

ZombieBraintrust (1685608) | about a year and a half ago | (#42912159)

Thats is the point. It brings attention to the patent examiner that the solution is trivial. More patents will be rejected for obviousness.

Re:Interface patents (1)

moderatorrater (1095745) | about a year and a half ago | (#42913195)

Just because it's simple doesn't mean it's obvious and should be able to be patented. You need someone who knows the field to determine whether it's obvious or not, and if you have someone who knows the field looking at the working code, they could do just as well looking at the application (once it was translated into English, anyway).

Re:Interface patents (1)

DickBreath (207180) | about a year and a half ago | (#42912225)

With your example of one-click in particular, the time was simply ripe. If Amazon hadn't done one-click, someone else would have within a very short time. That means it really was obvious. If Amazon hadn't done it, someone would have done it, probably within six months.

Merely being the first to do something obvious should not make it patentable.

Re:Interface patents (0)

Anonymous Coward | about a year and a half ago | (#42912915)

The rounded buttons are not a patent, but a design patent. Very similar name, very different concept (except for those who like to throw everything "IP" together).

Hooray for token code! (0)

Anonymous Coward | about a year and a half ago | (#42912145)

Woooo! Bring on the token quick-and-dirty implementations! That'll stop the patent trolls, right?

Make the lawyers code it (1)

dugjohnson (920519) | about a year and a half ago | (#42912163)

To be able to bring a patent infringement lawsuit in these software cases, they should require the lawyers to do the coding live. It would either slow them up, or make the courtroom more interesting. You'd at least have an idea that the people involved knew what they were doing.

Offshore developers will love this (2)

gorbachev (512743) | about a year and a half ago | (#42912207)

I expect a tremendous boom in offshoring development work as a result.

Every patent troll is going to contract the cheapest possible software development team to implement working code for their idiotic patents.

This is not the right solution to the problem.

Limiting the duration of software patents would be a better one, if abolishing them entirely isn't on the table.

Re:Offshore developers will love this (1)

godrik (1287354) | about a year and a half ago | (#42912267)

I actually disagree with you. It would actually solve lots of problem. For instance, you could easily claim that wat you implemented is significatively different from what is claimed in the patent. Therefore, you are not violating it.

In many cases, that would actually help.

Re:Offshore developers will love this (3, Informative)

DickBreath (207180) | about a year and a half ago | (#42912361)

It's not a complete solution to patent reform. It's just a small part. It raises the bar. Instead of just filing a patent on some idea, you at least must have something that works.

I worked as an 'expert' defense witness on a patent case where the patent was just a 'paper patent'. (This was because I had co-developed a product and still had a shrink wrapped boxed copy from way back when.) The patent had many internal inconsistencies. The parties ended up 'settling' after I provided a working implementation that had been sold and offered for sale over a decade earlier. I assume the 'settling' meant the troll went back under the bridge.

If this specific patent had been required to have a working implementation, it would never have been granted in its current form.

Re:Offshore developers will love this (1)

jfengel (409917) | about a year and a half ago | (#42913681)

That was my first thought as well. A working implementation of "one click shopping" won't take more than a few minutes to cobble together. The price is significantly lower than the costs in filing a patent.

It's possible that seeing the trivial implementation might make it clearer to a reviewer that the patent is obvious to one skilled in the art. But then, that should have been obvious already, to one skilled in both the arts of writing software and patent law. (Which isn't the vast majority of people here, which is why we get "A Neanderthal flint flake is prior art for a Cuisinart" type comments here all the time.) Sadly, I get the impression that the reviewers seem to be similarly unskilled in programming. So maybe it'll help.

Certainly they need something, because while not all of the "bad patent" stories we see here are as bad as they sound, some actually are, and they're incredibly harmful.

Re:Yes, that's part of the point! (1)

Tony Isaac (1301187) | about a year and a half ago | (#42913689)

The real point is, most software patents are abuses of the system. If it becomes necessary to post working code, this will in itself be a huge disincentive for those who are currently using patents inappropriately. Much of the problem will solve itself.

Re:Offshore developers will love this (1)

greg_barton (5551) | about a year and a half ago | (#42914385)

I seriously doubt that. Someone developing a patent does not want it spreading very far before filing. I doubt they'd let the cat out of the bag, especially to foreign unknown coders, before filing. (Especially because the offshore developer house could file foreign patents before the actual patent developer, even if they make it to the US patent office first.)

Obviously aimed squarely at patent trolls (0)

benjfowler (239527) | about a year and a half ago | (#42912293)

And the carpetbaggers know this. Expect them to fight like rabid animals against any regulatory effort to kill their business model.

Naturally, this could happen only in America: where if you're rich enough, you can shape the law to prop up a bad business model, no matter how lousy.

Re:Obviously aimed squarely at patent trolls (2)

i kan reed (749298) | about a year and a half ago | (#42914397)

We like the free market so much, we let those with the most money decide what restrictions exist on the free market.

Better Idea (1)

Anonymous Coward | about a year and a half ago | (#42912307)

If the only thing novel about your invention is that you are doing it in software, with a computer, on the internet, etc then it should be obvious as a matter of law.

Priceline is a great example. Take a 700 year old Dutch auction, put it on the internet and suddenly you get a patent? No. Just no.

Re:Better Idea (1)

DickBreath (207180) | about a year and a half ago | (#42912391)

What you said reminds me of a method I've seen to make existing ideas, and even existing patented ideas re-patentable. Take the idea and then add to it the suffix: ". . . on an iPhone". Poof! Like magic. You've just invented something new.

Re:Better Idea (1)

Jason Levine (196982) | about a year and a half ago | (#42912707)

No, you need to keep it generic: "... using a computing device." Now your re-patented idea applies on Windows PCs, Macs, Linux PCs, desktops, laptops, tablets, smartphones (iOS/Android/etc), and anything else that could generically be called "a computing device". (Even if your originally envisioned "computer device" was a big desktop PC with a dial up connection to a dedicated, non-Internet connected server.)

Re:Better Idea (1)

DickBreath (207180) | about a year and a half ago | (#42913521)

Yes, I agree. I understand your generalization and I have thought of it and I should have patented it first. :-)

But I said "reminds me of a method I've seen". I remember a discussion some long time ago about several patents, before the thermonuclear patent wars, that were constructed using the method I described. :-)

Good first step (1)

detain (687995) | about a year and a half ago | (#42912485)

I'm surprised this hasn't been a basic requirement for patents of all types from the get-go. The application should also be required to show that their patent shows significant improvement over previous software, not just a minor obvious tweak.

Re:Good first step (1)

suutar (1860506) | about a year and a half ago | (#42913219)

It has. The patent is supposed to include enough information for a skilled practitioner to build the invention. Software patents in particular have been allowed to ignore this for a while.

How is this different than copyright? (1)

XaXXon (202882) | about a year and a half ago | (#42912813)

Doesn't copyright already protect working code?

Or is this "You can have the idea if you've actually provided a concrete example"? Just raising the bar for getting the patent.

Great proposal for returning patents to their root (1)

YoungManKlaus (2773165) | about a year and a half ago | (#42912819)

because the original idea of the patent system is that you don't have to have company secrets about your solutions which are very scary (even from a company perspective as you never know who will talk) but can sort of open them up without losing control. The important part here is the _solution_ part. A Patent has to provide an implementation that addresses a problem, saying "we have a system that fixes the problem xyz" is not sufficient for a patent.

In the olden days... (1)

JBMcB (73720) | about a year and a half ago | (#42912847)

You had to submit a mostly working model of what your patent covers. They did away with this years ago, and the models became collectors items.

Makes sense for algorithms and code. It looks like they used to do this - the patent for RSA has a very detailed explanation on *exactly* how it works. It's practically pseudo-code. Forcing an applicant to specify the exact implementation should help with the vagueness problem of software patents (There's a list of HTTP links and a computer program downloads them automatically, etc...)

It's not a panacea, but I think it's a step in the right direction.

Peripheral Claiming (2, Insightful)

Grond (15515) | about a year and a half ago | (#42912887)

The United States uses a system called "peripheral claiming," in which patent applicants stake out the outermost boundaries or periphery of their claimed invention. This is in contrast to the older (think the 1800s) system of central claiming, where the applicant would claim the "heart" or "gist" of the invention. The problem with central claiming is that courts had to decide when an alleged infringer got "too close" to the claim, which was often a very subjective process. With peripheral claiming, the infringer either has each and every element of the claim or they don't (with a small amount of wiggle room for the doctrine of equivalents). This forces the applicant to say, up front, exactly what they've invented and—importantly—support it in the specification.

Over time, however, there has been a perceived (and perhaps real) growth in the number of patentees trying to make their claims cover more than they actually invented. This is what the written description and enablement requirements in patent law are designed to prevent. See 35 U.S.C. 112. I have said many times on Slashdot and elsewhere that these requirements should be tightened. What the EFF is proposing is, broadly, along those lines, though it is specific to software patents. I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.

If the written description and enablement requirements were tightened up, however, then one way that computer-implemented inventions could demonstrate compliance (i.e. show that the application contained "a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same") would be to provide extensive source code or pseudocode examples. But in our zeal to rein in unsupported functional claims we should not return to central claiming.

As an aside, right now many if not most patents that involve software use flowcharts rather than pseudocode or source code. This is the result of Patent Office backwardness dating back to its initial opposition to allowing patents on computer-implemented inventions in the first place. Only now is the Patent Office finally recognizing that pseudocode or source code is much more searchable, readable, and useful for everyone involved, including patent examiners, competitors, and alleged infringers.

What about complex software? (1)

lalena (1221394) | about a year and a half ago | (#42912919)

Not all software patents cover a couple lines of code. Some represent man-decades of effort. Am I expected to first come up with my idea, then write the software, then apply for a patent and then wait 18 months (time from application to publication) to determine if someone else filed before me and that everything I have done is wasted. Do you really expect me to file the patent when the code is complete - giving someone else who does a half-assed implementation a couple year head start? Or let someone else get the patent when they came up with the same idea the same time as me (5 years ago) but filed 1 day before me. I'm not talking rounded buttons here. Think video compression algorithms, advanced image processing, recognition algorithms...

Re:What about complex software? (3, Insightful)

DickBreath (207180) | about a year and a half ago | (#42913731)

I am skeptical that a new advanced idea or new or improved algorithm that advances the state of the art would take man-decades to turn into working example code. Are there in fact, any such examples of this?

It sounds like you're talking something you would work an entire career on from the time you're young until the time you're old to have something working. ("man-decades") Even if we're talking 2 man-decades == 20 man years, that was done as 20 people for 1 year, it does not seem unreasonable to have a working model. That had been true for non software inventions. I remain skeptical it would take 20 people a year to build a simplistic working model of even an advanced idea. The working model doesn't have to be the most efficient implementation of the idea. It just has to illustrate an advance in the state of the art.

Yes, I know you are identifying a possible problem caused by the proposed requirement of working code. But the EFF proposal is to fix a much more serious and widespread problem that is real and not hypothetical.

Re:What about complex software? (0)

Anonymous Coward | about a year and a half ago | (#42915379)

Am I expected to first come up with my idea, then write the software, then apply for a patent

Yes! A patent is supposed to protect an invention, not an idea.

Functional Claiming (3, Informative)

Grond (15515) | about a year and a half ago | (#42913069)

What the EFF is specifically decrying is functional claiming. That is, an element of a claim described not in terms of what it is but in terms of its function. For example, instead of claiming a nail or a screw, claiming "a means for mechanically fastening" or, even more broadly, "a fastening means." This is allowed under 35 U.S.C. 112 6, now 112(f):

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

In other words, you can use functional claiming, but you have to explain what you mean in the specification, and you only get what you describe there, plus equivalents. If you don't describe what you mean then the claim is invalid as indefinite.

In the case of software, generically claiming an algorithm (e.g. "sorting means") requires describing in the specification what you mean by that. There has to be some corresponding structure. Failure to properly support a functional claim has bitten many a patentee. This happened just recently in a software patent case involving Google as a defendant, for example. Function Media, L.L.C. v. Google Inc. [patentlyo.com] . Overall, the popularity of functional claiming has been dropping like a rock. From ~1992 to 2011 the percentage of newly issued patents with at least one "means for" claim fell from ~45% to ~10% [patentlyo.com] . It has since fallen to almost 5%.

It is a mistake to have a minimum standard. (2)

dweller_below (136040) | about a year and a half ago | (#42913089)

Bracing up the "Functional Claiming" standard is a temporary fix. This fix will not hold for long.

The history of patent office is a recurring pattern of regulatory capture, followed by declining standards, following by temporary legislative fixes. If we wish to effect long term reform, we need to recognize the inevitability or regulatory capture. We need to create processes that minimize the damage of regulatory capture.

One resilient process would be to stop using minimum standards. A review of recent Patent Law will reveal that the minimum standard for granting a patent has consistently shifted downwards during the past few decades. This always occurs during periods of regulatory capture. We must abandon the idea that any patent that meets minimum standards is granted. Over time, the standard always degrades.

Everybody knows how to fix this. We use the same fix throughout industry and education. We need competition. Instead of using a minimum standard, you rank Patent Applications according to an agreed measure of quality, and only grant the top 5 percent. Over time, the pressure will be to improve the quality of patent applications, instead of degrade them.

My personal favorite measure of Patent quality is to rank them according to the damage they do to society. Compare the application to last years granted patents. Then, based on that comparison, give the patent application points for:

  • * Relative lack of clarity in the invention description;
  • * Relative lack of precision in the claims;
  • * Relative lack of originality.

Then only grant the top applications with the fewest points. This has the advantage of being fairly easy to measure, thus it is hard to challenge in court. Also, the resulting competition will tend to simplify and clarify granted patents.

The Patent office requires many reforms before it can return to sanity. As others have pointed out, it may be easier to simply eliminate it. But, if we pursue reform, we should recognize the cause of decay and address it.

Other needed reforms include:

  • * Eliminating the Cost Recovery model of funding the Patent Office.
  • * Eliminating Patent Office processes that create incentive to grant poor patents.
  • * Limiting the total number of granted patents.

Miles

Instead of Patent Reform, Litigation Reform (1)

lalena (1221394) | about a year and a half ago | (#42913939)

Everyone has overly complex ideas on how to reform the patent system. Why not simply leave it alone and reform the system that allows people to sue when someone violates their patent.
In step 1 of the defense, the defendant provides prior art, claims of obviousness... to the Patent Office who then determines if the patent is still valid. The Patent Office (who are the experts, not the courts) judge if the patent is still valid based on all evidence.
After that if it still goes to court then loser pays attorney fees. No fees are paid before step 1 - so both sides get to hear the arguments before going to court. Plaintiff doesn't get punished with paying legal fees for simply not being aware of prior art. Defendant doesn't pay legal fees until they lose their appeal with the Patent Office and still decide to continue to fight. If the Patent is stuck down in step 1, then the Patent is void. It does not just apply to this single case.

Re:Instead of Patent Reform, Litigation Reform (0)

Anonymous Coward | about a year and a half ago | (#42915881)

Such a system already exists in part. Defendants have the ability to conduct a post grant review or inter partes review before seeking a declaratory judgment or other arguments in the court system. When a defendant starts such a review at the PTO, litigation is usually suspended pending the decision from the PTO. If one of the parties is unhappy with the PTO decision and can continue to bear the risk involved in litigation, they can choose to continue. These reviews also are much cheaper than full blown litigation (on the tune tens of thousands of dollars compared to over a million). I don't think you could make them free however, the PTO is by and large a self-funded agency, providing free reviews would require a built in budget (through congressional appropriations, or increased fees elsewhere). The issue is that determining validity of a patent is ultimately a legal question, not a technical or factual one. Since it is a legal question, the judiciary's decisions trump the findings of an agency (which is an executive body). The courts cannot be bound by the decisions of an administrative agency (well, they can in some ways, but I won't go down the hellish road that is administrative law).

As for loser pays attorney's fees, that's actually probably a decent way to shun some aggressive NPEs. However, for NPEs/trolls, the strategy they often have is to not want to go to trial; they just want a "reasonable" license fee and to disappear into the night. Your system changes their calculus, making litigation more risky for them, but it doesn't do anything to prevent them from threatening litigation in the first place. Not a bad proposal, but there would need to be some refinements and other incentives to really have an effect, imho.

Legitimization of software patents (2)

Adrian Lopez (2615) | about a year and a half ago | (#42916107)

Such a move would only serve to legitimize software patents. Let's instead get rid of software patents altogether.

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