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Paul Graham on Patents

CmdrTaco posted more than 8 years ago | from the stuff-to-read dept.

302

volts writes "The always interesting Paul Graham has a new essay, 'Are Software Patents Evil?'. "A few weeks ago I found to my surprise that I'd been granted four patents. This was all the more surprising because I'd only applied for three...""

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Patents are not what they are supposed to be. (5, Insightful)

IntelliAdmin (941633) | more than 8 years ago | (#15098970)

Its funny. The founding fathers of the USA wanted to have a patent system to protect the little guy. The little inventor that creates a new and novel item. That way a big bad company cannot steal it from him, and he never makes a dime. Now it seems that it is just used by slimy lawyers to use patents as part of an extortion scheme to shake down big companies. Alternatively a way for big companies to keep anyone from ever entering their territory. The sad part is I think it will only get worse - not better.

Re:Patents are not what they are supposed to be. (4, Insightful)

rainman_bc (735332) | more than 8 years ago | (#15098985)

Admittedly, these lawyers frequently obtain these patents from the little guy.

Sometimes it's just easier to sell your patent than it is to litigate.

Re:Patents are not what they are supposed to be. (0)

Anonymous Coward | more than 8 years ago | (#15098991)

I think what's sad is that the intention of the patent system was never realized.

It wasn't such a good idea (3, Insightful)

babbling (952366) | more than 8 years ago | (#15099017)

I get the impression that the "founding fathers of the USA" were pretty good blokes with the best of intentions. Certainly very different from the politicians in power in the US today.

I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company. This was probably a difficult thing to imagine when patents were invented, since really big companies wouldn't have existed back then, and the legal system was probably also quite different. There was probably no such thing as "expensive lawyers".

Re:It wasn't such a good idea (3, Insightful)

SlamMan (221834) | more than 8 years ago | (#15099035)

<a href="http://en.wikipedia.org/wiki/British_East_In dia_Company">British East India Company</a>

Re:It wasn't such a good idea (4, Insightful)

Bogtha (906264) | more than 8 years ago | (#15099086)

I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company.

So what you are saying is that the combination of these two things is bad:

  • Patents
  • Large companies being able to wield an inordinate amount of legal power over individuals

I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.

Re:It wasn't such a good idea (1)

babbling (952366) | more than 8 years ago | (#15099248)

I think it's a case of two mistakes being used together by unscrupulous people in such a way that it appears to be one big mistake. You're right that it is certainly a major problem that large companies can wield so much legal power that no individual has a chance of winning against them, but the patent system clearly has its own problems. Algorithms shouldn't be patentable, and as the article points out, patents actually can't mention the word "algorithm". Algorithm patents just try to make the patent sound like it is covering something mechanical in nature, and all of a sudden, due to different wording, the patent is valid.

There's more than one problem.

Proposed solution (2, Interesting)

headlessplatter (955660) | more than 8 years ago | (#15099036)

How about this for a proposed solution:
1- You can't patent anything until it's been published in a peer-reviewed journal.
2- The duration of the patent is proportional to the clout of the journal.
Only novel ideas will get published in a scientific journal with any clout. And journals without a big name will only get you a patent for a few days. This way the drug companies can patent the fruits of their multi-million dollar investments. But when someone tries to patent something stupid like one-click shopping, they'll be laughed out of all the journals. So who will evaluate the clout of a journal? College professors do that already in order to establish who gets tenure and promotions, etc. Plus this would keep the decisions out of the patent office, giving them an opportunity to offload their problem of being overwhelmed with applications.

Of course the real solution is to abolish software patents, but that's a rather tough sell when lots of rich companies are lobbying against it, so how about seeking something that might actually succeed?

Re:Proposed solution (1)

BVis (267028) | more than 8 years ago | (#15099230)

I can tell that your heart is in the right place, but the system that you suggest is ripe for abuse IMHO. I do like the idea of a peer-reviewed journal evaluating the worthiness of an idea or invention as part of the patent process. The implementation, however, would most likely be problematic.

Currently IMHO, the function of scientific journals is to test the results of research as repeatable and/or valid. There doesn't seem to be a (direct) financial motive to review an article favorably. (Yes, being published benefits the author(s) in terms of status, tenure, professorships, career advancement, etc., but those benefits are realized by the author, not the peers reviewing his/her article.)

Suddenly you introduce patents into the mix, and any objectivity on the part of the peers reviewing is gravely threatened by the financial considerations of obtaining the patent. This would be especially dangerous when pharmaceutical patents are considered; the drug companies have DEEP DEEP pockets, and who's to say that a favorable peer review wouldn't result in a new Mercedes in the driveway (less likely, easier to trace as fraudulent), or a cushy do-nothing job at said drug company (difficult to prove, as hiring processes are confidential)?

Then there's the concept of the importance of a scientific journal. The importance of said journal is currently based upon the merits of its peer review process, and the accuracy of said analysis. It's one of the few merit-based comparison systems that still exist. Suddenly you've got Joe's Pharmaceutical Journal and Bait Shop, who just happens to consistently give the pharmaceutical companies' products favorable reviews. Add a multi-million dollar precisely targeted marketing campaign extolling the virtues and excellent reputation of said journal (and maybe a couple all-expenses-paid junkets for a few of the right people) and suddenly it has "clout", leading to longer patent terms for the drug companies that benefit from obtaining patents.

I have to disagree with you that this would be effective; the only thing IMHO this would accomplish is destroying the objectivity of peer reviewed scientific journals. There's just too much money at stake; someone will inevitably be lured accross the line by the cash involved.

Why your solution sucks (1)

Vlad2.0 (956796) | more than 8 years ago | (#15099261)

It puts too much power into the hands of whatever journal has the most clout. Under the right system of checks and balances such an idea might work for a relatively narrow range of patents. I'm sure there's plenty of things college professors aren't interested in reviewing.

No, all patents should be, at least at first, considered equal. Only after proper scrutiny and comparison to existant patents should a decision be made. From what I can tell, this is a rough idea of how the current system is supposed to work and the cause of the breakdown is that the current system is overburdened.

Saying abolishing software patents would solve the problem is stupid since not all (stupid) patents are on software. Not to mention I haven't been completely sold on the idea that *all* software patents are, somehow, inherently evil. If I implement an algorithim that's very efficient at, say, facial recognition, why shouldn't I be able to patent it and profit from my hard work? Don't like it? TFB. Invent a better one and beat me at my own game.

There is no doubt that patents are being misused and that the current system is shitty at best. But implemented and run properly the system can protect patent holders and drive innovation.

Re:Patents are not what they are supposed to be. (5, Insightful)

Waffle Iron (339739) | more than 8 years ago | (#15099220)

The founding fathers of the USA wanted to have a patent system to protect the little guy.

I don't think that they had "protecting" anybody in mind. What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died. Perhaps unfortunately, the chosen means to this end was by granting time-limited monopolies.

The problem is that the enticement part has become the all-consuming focus of the patent process, rather than the disclosure of useful trade secrets part. Now a lot of people think that patents are a form of property right a sacred as the rights to their favorite pillow, and the patents themselves most often have obfuscated claims that reveal little if anything that isn't obvious from a quick look at the protected products themselves. They extrapolate from the "protection" side effect of the way patents were implemented and mistakenly assume that that was the primary goal all along.

The inventor now gets far more than the original intended benefits (because he can now often shake down a large company for the profits to all of their business), without having to give up much of anything in return. Much like agricultural market subsidies, patents have become little more than a wasteful government entitlement program.

Re:Patents are not what they are supposed to be. (2, Informative)

TheZax (641389) | more than 8 years ago | (#15099331)

What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died.


I really don't know what I'm talking about, but this is Slashdot, so i won't let that stop me ;)


But I think the idea was not so much to get their ideas when they died, but at the time people were inventing machinery that could be reverse engineered very easily. Patents were issued so that a competitor couldn't simply by a widget, take it apart, then mass produce it at the expense of the inventor.

Re:Patents are not what they are supposed to be. (1, Insightful)

Anonymous Coward | more than 8 years ago | (#15099341)

There weren't megacorps during the time of the founding fathers. Many of the founding fathers never believed in the ownership of ideas (see Jefferson's writings). The purpose of patents and copyrights is clear. It's a trade. You tell the public your secret methods and the public will grant you limited exclusive rights to those secrets. There was no little guy vs. big guy. No prevention of theft.

When patents and copyright laws are written to protect someone other than the public, they are an abuse of the article I section 8.

The US Patent Office is very generous . . . (1)

ThiagoHP (910442) | more than 8 years ago | (#15098988)

. . . you ask for threes patents and then you receive four! That's what I call "software patent granting-happy". Isn't it a way to earn more money as any granted patent is paid?

Re:The US Patent Office is very generous . . . (2, Funny)

jbrelie (322599) | more than 8 years ago | (#15099002)

Buy three - Get one Free!!!

It's marketing. The tobacco companies do it all the time. (Thanks!)

Re:The US Patent Office is very generous . . . (3, Informative)

servoled (174239) | more than 8 years ago | (#15099024)

35 USC 101:
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 [35 USC 1 et seq.].
What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.

Yes (5, Insightful)

pieterh (196118) | more than 8 years ago | (#15098990)

They are.

It does not take a long essay to answer this.

And BTW, Paul Graham is wrong when he says, "if you are against software patents, you are against all patents".

All patents have the potential for evil. But software patents are guaranteed to do evil.

Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.

Yes, software patents are evil because in the name of promoting innovation in a field, they actively destroy it.

Re:Yes (2, Interesting)

moro_666 (414422) | more than 8 years ago | (#15099016)

i'd prefer to say that they are evil in their current form as they are implemented in the u.s. patent system.

  if software patents would apply only to commercial software (e.g. gnu staff could always use patented stuff as long as they give away the product for free, and microsoft would have to pay nice $$$ for the same thing), the patents would be better.

  but i think there's a higher chance of bush turning into a human being than this happening.

Re:Yes (1)

pieterh (196118) | more than 8 years ago | (#15099041)

The patent covers the use of an idea.

The software itself, is simply an expression. The user of the patented idea is the person using the software. Today, most litigation is aimed at product producers because these have the money. But if one was to exclude (e.g.) FOSS from patent claims, then the patent ambush would simply shift onto large-scale software users.

It is difficult to see how the fact that one is using FOSS as compared to commercial software, to do the infringing, would change anything. If you are using someone's patented idea, they own you.

Re:Yes (1)

moro_666 (414422) | more than 8 years ago | (#15099060)

i was referring to the using of the idea.

  free/opensource software developers shouldn't be affected by patents at all, companys that make profit should pay eachother for them. simple and clean without any hooks.

  sure having no patents at all would be a nice bliss, but if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ? if gnu people would use the idea to make some free stuff, i wouldn't mind. if microsoft would use it in IE , i'd definitely like to receive some coverage for my efforts in inventing it.

  but this is just my vision, and not the attempt to find the ultimate truth.

Re:Yes (2, Insightful)

Vlad2.0 (956796) | more than 8 years ago | (#15099134)

A lot of people *would* mind if GNU decided to use their ideas to make free stuff. While it might not be me or you, it is their idea and their right to protect it. We should respect that.

I'm definitely *not* saying that all ideas should be patentable. Just that those that are should be respected.

Re:Yes (2, Insightful)

Halo1 (136547) | more than 8 years ago | (#15099156)

free/opensource software developers shouldn't be affected by patents at all, companys that make profit should pay eachother for them. simple and clean without any hooks.
There are plenty of companies which develop FLOSS, individual FLOSS developers that make money developing FLOSS, and end users avoiding spending money on software by using FLOSS.
sure having no patents at all would be a nice bliss, but if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ?
You seem to think patents are some kind of reward or a natural right. They are not. They are just a tool available to government economic policy makers, which they can use to correct the free market if it doesn't work things out on its own for some reason.
if gnu people would use the idea to make some free stuff, i wouldn't mind. if microsoft would use it in IE , i'd definitely like to receive some coverage for my efforts in inventing it.
Patents, just like taxes, don't have anything to do with what you personally would like or not, but are only their to serve the public interest.

Re:Yes (1, Insightful)

dmatos (232892) | more than 8 years ago | (#15099187)

And if you've invented it, and are making your living off of selling it, how would you then feel if gnu people started offering it for free?

Re:Yes (1)

AlterTick (665659) | more than 8 years ago | (#15099211)

if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ?

The patent system is intended "to promote the progress of science and the useful arts". "Credit" for inventing somethinghas nothing to do with it. The problem with software patents is that they end up staking claim to large swathes of knowledge, essentially bogging people down in trying to work around them rather than building upon past work. Software patents as currently awarded are about as ludicrous as allowing someone to copyright the use of the future tense in all written works. It totally misses the entire premise of the system-- protecting a specific implementation of a process-- and locks out all possible competition.

Wow, how wrong (1, Interesting)

Anonymous Coward | more than 8 years ago | (#15099072)

I believe Paul Graham might have been hanging out with Dvorak's crack pipe or something. Software patents are not like patents on mechanical inventions at all. It's the difference between patenting knowledge, and the application of knowledge. Software is not the application of knowledge, but knowledge itself. Knowledge is special. Knowledge can be freely shared, and should be. If it is not, we all suffer. Those high priests who think they have special title to knowledge and do not deign to bless the uninitiated help no-one but themselves.

No intellectual endeavor procedes without building upon previous knowledge. This is particularly made manefest in the field of software, where there are untold constituent pieces of a system of any complexity. When we require the authors of such systems to seek out and license every brain fart anyone might have had that impinges on their work, progress becomes impossible.

If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.

--Bill Gates

If we are to have a true and honest culture, we must be aware of the self-appointed tyrant who puts a fence around a painting or art or music or literature and shouts 'This is my preserve. Think as I do or keep out.'

--Walt Disney

Re:Wow, how wrong (2, Interesting)

langelgjm (860756) | more than 8 years ago | (#15099141)

It's the difference between patenting knowledge, and the application of knowledge. Software is not the application of knowledge, but knowledge itself.

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

I'm not arguing for or against patents, just against this sort of thinking.

Re:Wow, how wrong (2, Insightful)

Halo1 (136547) | more than 8 years ago | (#15099185)

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.
It's a description of knowledge. Whether you write down a description of an algorithm in English or in C, on a floppy or in a book, doesn't matter. It just happens that if you restrict yourself to some particular syntax and grammar, it's easier to get a machine to parse what you've written down.

The "hardware implementation" in that case already happened by the person who created the microprocessor, since it was designed to be able to execute any kind of mathematics you throw at it.

If you implement it using cogs or on a chip, in theory the construction of this chip or with the cogs might be patentable, but the algorithm you've implemented shouldn't be. In case of software, it's not the implementation/description that's patented (that's covered by copyright), but the again the algorithm itself. Simply describing an algorithm in a particular way should not change its patentability.

Re:Wow, how wrong (0)

Anonymous Coward | more than 8 years ago | (#15099323)

Quotes in bold of parent poster. Arguing what is not what SHOULD be, to point out the flaw that "code is just a description."

It's a description of knowledge.
Exactly, a description of -- but not knowledge itself. It's a method. Patents aren't on objects but on methods of producing objects. The description is one incarnation, one particular implementation of that knowledge.

Whether you write down a description of an algorithm in English
A copyrightable or patenable expression as well -- under the current system. Remeber, most patents (not in software) are on plans which are just English text, numbers and drawings.

or in C, on a floppy or in a book, doesn't matter.
Your right it doesn't. Or in hardware, or in cogs and levers (or drawings there of).

It just happens that if you restrict yourself to some particular syntax and grammar, it's easier to get a machine to parse what you've written down.

The "hardware implementation" in that case already happened by the person who created the microprocessor,
No. What he's saying is that I could compile your program with something that does VHDL or other hardware language and get a peice of paper or circuit itself that is a METHOD for creating the specified output. The result is just another expression of a peice of knowledge, and is (again) copyrightable and/or patentable under current law.

since it was designed to be able to execute any kind of mathematics you throw at it.

If you implement it using cogs or on a chip, in theory the construction of this chip or with the cogs might be patentable,

No, the design is... The METHOD is, under current law. The patent office gets drawings and/or legalese english -- rarely ever an actual physical item. Because current law is all about METHOD.

but the algorithm you've implemented shouldn't be.
But is.

In case of software, it's not the implementation/description that's patented (that's covered by copyright), but the again the algorithm itself. Simply describing an algorithm in a particular way should not change its patentability.
Under current law it doesn't... except that it does.

Patents on software aren't doing what they are supposed to. They don't make sense, but not for the reasons you described. I don't know if they make sense on other items or not.

Copyright, a completely seperate topic, I beleive to broken across the board, and needs to be fixed.

Re:Yes (2, Insightful)

rolfwind (528248) | more than 8 years ago | (#15099117)

I agree with you. I usually like Paul Graham, but he is way off on this.

It sounds like he wants to prentend that patents won't play a big role and be "secondary" and without them, we're all screwed in the "alternative" he mentions.

But if patents are so great, and the alternative so bad, explain the advancement in first years of the computer industry up to the 90s.

It's also ironic that he puts says either you are for patents or you are against patents, if you are against software patents - because software patents are so far from what patents were initially supposed to be.

Re:Yes (1)

truthsearch (249536) | more than 8 years ago | (#15099308)

Here's the basis of where he's wrong:

There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

Physical resources are a limited quantity. There's a strict limit to how many of these physical control systems can be produced. If I have a physical resource that means someone else doesn't. So if I manufacture my invention it limits others' ability to do so.

Software is an unlimited resource. We can copy it without taking the original away. Software isn't manufactured. It's written. And that writing is already protected by copyright. People are allowed to profit from coming up with the same literary ideas as others (e.g. The Da Vinci Code).

The other problem is that genuinely new ideas are hard to come by. Out of all of the software developers in the world many think of the things are now patented. If only the truely innovative ideas were patented there would be so few software patents we probably wouldn't care as much.

bzzzzzzzzt - wrong! (4, Insightful)

Spy der Mann (805235) | more than 8 years ago | (#15098993)

One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general.

Wrong. Hardware patents are necessary to commercialize new products and keep innovation. Some medicine patents are also necessary, but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

But patents for software or business methods are an aberration.

Re:bzzzzzzzzt - wrong! (2, Insightful)

MindStalker (22827) | more than 8 years ago | (#15099070)

Your argument of course is missing any facts that would lead someone to conclude you are write and he is wrong. Paul Graham has an interesting idea, but realistically he is missing two big points. In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world. In the computer world copyright and keeping your source secure, is effectivly your assurance that someone won't simply rip off your idea.
Though I can think of a few things that could have been nonobvious and easily copyable in the early days of computing. Spreadsheets come to mind. I'm glad these wern't patent, as we innovation would have halted for many years in the database world.

Re:bzzzzzzzzt - wrong! (1)

'nother poster (700681) | more than 8 years ago | (#15099160)

Spreadsheets non-obvious? That was a joke, right? They are the representation of a physical ledger sheet on a computer screen with logic to allow the basic math that you would perform on paper. It is simply a ledger sheet on the computer. People have been doing it on paper for centuries. Pretty obvious if you ask me, not that USPTO would have gotten it right.

In physical patents there is a requirement that the patent applied for not be a simple transformation of an existing patent. You can't get another patent by changing the material something is made of. I can't replace the oxygen atoms in a molecule with chlorine and claim it as a new invention. They allow that kind of crap in software all the time.

Re:bzzzzzzzzt - wrong! (2, Insightful)

matvei (568098) | more than 8 years ago | (#15099315)

In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world. In the computer world copyright and keeping your source secure, is effectivly your assurance that someone won't simply rip off your idea.

There is another way in which software inventions are essentially different from physical inventions. In the physical world having an idea, and specifying it in detail is only the first (and relatively cheap) step. Getting your invention from the drawing board to mass production can end up being a very costly and risky undertaking. Patents are needed to assure the inventor, that after he has spent the needed resources to create a new product, he won't get ripped off by other companies which have waited to see how the R&D project pans out.

The world of software is different. As you summed it up in your last sentence, securing the source code prevents people from ripping the idea off. That's because the source code is the idea, described in ultimate detail, while simultaneously being a product that you can sell. There is no expensive process needed to transofrm the idea into a product, describing it in detail is enough. Because of that, software patents don't encourage anyone to bring new products to the market (thus increasing competition) -- quite on the contrary, patent holders are using them to stifle the competition's attempts at doing that.

This makes regular patents good but software patents purely evil in my book.

Re:bzzzzzzzzt - wrong! (1)

Buddy_DoQ (922706) | more than 8 years ago | (#15099077)

You've just gotten home from the doctors office. You've got 6 months, at best. Someone finds a cure three days later. They file for a patent and refuse to give it up for less than x$ where x = extreme. 12-16 months later they sign a deal with a major medical company who then sells it for x$ where x = extreme and they refuse to lease the cure to competitors and sue the pants off anyone who uses an unlicensed cure. Tell me that is not evil? I dare you. Cures for major causes of death should be issued in bulk by your government for free (Tax Dollars) not protected by patents.

Re:bzzzzzzzzt - wrong! (2, Insightful)

ergo98 (9391) | more than 8 years ago | (#15099108)

Cures for major causes of death should be issued in bulk by your government for free (Tax Dollars) not protected by patents.

You're basically calling for the socialization of medicine, which historically has been a really, really, really terrible model. You know -- where those cures never actually appear, and instead of complaining about those evil drug companies, you enjoy your 35 year lifespan and die away.

Imagining cures popping out of nowhere and doing away with major illnesses is pretty romantic, but in reality they appear because of the carrot of revenue.

Re:bzzzzzzzzt - wrong! (1)

TubeSteak (669689) | more than 8 years ago | (#15099097)

but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.
I was just reading in the new BusinessWeek that Pharma companies are gathering up for a big lobbying push to change the way their drugs recieve patent protection.

They aren't happy with the current 20-years-from-date-of-application, instead they want 15 years from date of approval.

Additionally, they want 15 years (instead of 5) of protection for their clinical research data, which will effectively choke off generics until after the 15 years would be up. Clinical research is expensive, but generic meds get around this by using the original research as part of their application to the FDA.

The article did say that it seems unlikely the pharma companies will get what they want, since the Gov't (due to the Medicare prescription drug coverage) is now footing a large portion of the bill for drugs.

MOD PARENT UP (0)

Anonymous Coward | more than 8 years ago | (#15099152)

Indeed.

Another problem with patents on algorithms is that patents are only supposed to apply to inventions - not discoveries. If you come up with a novel way to produce steel, for example (one that's more effective or yields a higher quality steel than the current ones), that's an invention, but if you notice that factoring a (large) number into primes is a comparatively hard thing to do, then you've made a discovery. I think this is something else that's wrong with the patent system today; in addition to obvious problems like the fact that obvious things get patented, and the fact that software (both the market and the technology) changes too fast to justify 20-year state-granted monopolies (which is what patents are), there's also the problems that facts are being patented left and right today.

For more information, take a look at Michael Crichton's "This Essay Breaks The Law [nytimes.com] ", for example (I think this was posted on Slashdot a while ago, but I may also have gotten it from elsewhere - I don't recall).

That being said, Paul also writes about how patents are used for defensive purposes, and how he doesn't see anything wrong with that. I think he's missing the point there - the *only* purpose that patents have is to foster innovation, so if a company has to patent stuff just to be able to defend itself and to be able to exist in an uneasy truce with other companies, then that's a symptom showing that the system is fundamentally broken. As he says - you probably can't even tie your shoes without violating a patent.

I agree with Paul (and also with the parent poster) when he says that not all patents are evil, but I don't like his "all or nothing" approach (which essentially seems to boil down to "if you're against any type of patent, you're against patents in general") - that's essentially a strawman. The essay is an interesting read overall, but I would've expected something better than that from Paul.

Ah well.

Re:bzzzzzzzzt - wrong! (1)

DrPizza (558687) | more than 8 years ago | (#15099210)

I like the well-reasoned argument you give.

Oh, wait, you didn't. You just made an assertion "hardware patents good, software patents bad" without doing even the slightest thing to justify it.

All the arguments for hardware patents can be made for software patents.
All the arguments against hardware patents can be made against software patents.

To object to one but not the other is inconsistent.

Re:bzzzzzzzzt - wrong! (3, Informative)

Halo1 (136547) | more than 8 years ago | (#15099268)

All the arguments for hardware patents can be made for software patents. All the arguments against hardware patents can be made against software patents.
To object to one but not the other is inconsistent
Yes, it's really annoying, this inconsistent Federal Trade Commission, saying that patents do not have the same effects in all industries [ffii.org.uk] . In a sense, you're somewhat right, because they note that patents have little effects as driver of innovation in the semiconductor industry too.

Or maybe the National Research Council [nap.edu] , claiming that the software industry is quite different from traditional industry sectors for various reasons.

Or maybe the Max Planck and Fraunhofer Institutes [isi.fhg.de] ? (the latter even own some patents on mp3 compression)

Oh Boy (0)

Anonymous Coward | more than 8 years ago | (#15098998)

Another article by Paul Graham about how brilliant Paul Graham is. Just what we need.

He's Recognized Us! (2, Insightful)

eldavojohn (898314) | more than 8 years ago | (#15099000)

The most common is to grant patents that shouldn't be granted. To be patentable, an invention has to be more than new. It also has to be non-obvious. And this, especially, is where the USPTO has been dropping the ball. Slashdot has an icon that expresses the problem vividly: a knife and fork with the words "patent pending" superimposed.

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.
We "take it for granted?" What's that supposed to mean? That there's some novelty in finding bogus patents? I don't think so ...

On the contrary, it's shocking and down right insulting that some of these patents have been granted. I think Mr. Graham hit the nail right on the head when he said the USPTO is dropping the ball on granting obvious ideas patents. As I've pointed out before [slashdot.org] , they've patented the progress bar [espacenet.com] and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.

You know, time and time again there are stories about the horrors of patents. But what are we actually doing about it. Are there patent protests? Are we screaming foul play in the NTP Vs RIM court case? No, we aren't. We're just sitting back and watching patents get out of hand. I know I can, as well as Paul Graham, point out the problems with patents but what solutions are there to explore?

Re:He's Recognized Us! (1)

sim60 (967365) | more than 8 years ago | (#15099195)

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.
We "take it for granted?" What's that supposed to mean?
That it's automatically assumed by readers of /. that any story on a patent will be about a bogus patent.

Fairly common usage, I would have thought.

Re:He's Recognized Us! (1)

bzipitidoo (647217) | more than 8 years ago | (#15099243)

but what solutions are there to explore?

I'm sooo glad someone asked that question! ;) A common criticism of criticism is you shouldn't unless you have a better idea. I've been trying to come up with better ideas.

I think I've worked out a way to "promote the progress of science and useful arts" withOUT copyright and patent law. I've even run it up the flagpole here a couple of times, but no one's saluted. If you're interested in hearing more, let me know. I don't think it's an especially novel or radical set of ideas either, but it is far more radical than the usual suggestions of reforming the patent office so they do a better job, or tinkering a little with patent law to, say, reduce the monopoly period to 3 years or 5 or whatever. Graham says opposition to software patents is opposition to all patents. I agree, with one reservation. I'm against them all, but I'm willing to compromise to software patents for now because getting rid of just those seems much more possible. The reservation is that requiring a genuine working prototype device makes some of the abuses harder. As it is, it's possible to patent an idea that does work but for which we lack some crucial technology that is likely to be available in the near future but isn't right now.

Re:He's Recognized Us! (0)

Anonymous Coward | more than 8 years ago | (#15099253)

As I've pointed out before, they've patented the progress bar and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.


Actually, I'd say that they'd scream after Microsoft Defrag for Windows 95. The only difference between this and the patent itself appears to be the fact that everything is squeezed into one status bar.

From what I see:
- MS Defrag has a background task running.
- It's "action" button popups a large window that gives details on the status of the defrag.
- It's cancel button cancels.
- It's status bar shows how much of the task is completed.

Based on the wording of the patent, I think they mean multiple background tasks - but you can't be sure with barely understandable text. However, a single background task is trivial enough that it would qualify as a trivial implementation.

In my opinion - if you get attacked by this patent, claim that you plagerized the implementation from Microsoft Defrag. Or from one of the Common controls for that matter.

Paul Graham's opinion on patents not interesting (0)

Anonymous Coward | more than 8 years ago | (#15099001)

Why would I want to hear what Paul Graham has to say about software patents? Why does he think he has anything useful to say on the topic? I heard a portion of this talk recently and I was surprised at the degree to which he was opinionated and yet not very informed. It was just philosophising.

Paul Graham is a great programmer. That doesn't make him an expert on every topic. Once he steps outside of his area of expertise, he's just another Paris Hilton, famous for being famous.

I'd be as much interested to hear what an IP lawyer has to say about Lisp macros.

P. Graham - yay for patenting thought (0)

Anonymous Coward | more than 8 years ago | (#15099004)

Paraphrasing:
One thing I do feel pretty certain of is that if you're against literarary patents, you're against patents in general. Gradually fictional plots consist of more and more of the same old devices. There's nothing special about software instructions that should make them patentable, and the narrative equivalent not.
Software is literature, it's protected and published as such. Hope Mr Graham can find a suitably logical s-expression for his illogical certainties.

Good but idealistic article (4, Insightful)

robotsrule (805458) | more than 8 years ago | (#15099008)

I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:

"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."

This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees. There are other companies/people who do nothing but try to think of patentable ideas to lay claim to, and never intend to build a product; only to extort license fees from others.

There are other examples of what the author would like to believe that gloss over the terrible realities of software patents; despite the many good points he does make.

Re:Good but idealistic article (4, Informative)

magetoo (875982) | more than 8 years ago | (#15099029)

I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:

"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."

This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees.

Yes, and he mentions them a page further down. You did read the article before posting, didn't you? Of course you did.

Re:Good but idealistic article (1)

robotsrule (805458) | more than 8 years ago | (#15099053)

Yes I did see where he mentioned "patent trolls". But he does make the point:

"When you read of big companies filing patent suits against smaller ones, it's usually a big company on the way down, grasping at straws."

He says "usually" here so even though he mentions the companies I have highlighted in my post, I disagree that "usually" it's just big companies on the way out. About patent trolls he says:

"I don't think they hamper innovation much"

And I disagree with that, hence my post.

new offer... hurry ! (2, Funny)

phreakv6 (760152) | more than 8 years ago | (#15099011)

I'd been granted four patents. This was all the more surprising because I'd only applied for three...""

Oooooh ! dint u know ? they have an offer on those lil fellas now.
buy three
get one free
hurry.. offer open till stocks(no pun intended) last !

Stupid, Stupid, Stupid (5, Insightful)

gowen (141411) | more than 8 years ago | (#15099012)

If software were really no different from physical systems, 99% of software patents would be invalid because they consist solely of obvious (indeed, pre-existing) inventions with the words "using a computer".

How is the one-click patent not invalidated by the prior art of millions of human shopping experiences in which a customer says "One of those please", or a vending machine in which every item has its own button? Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.

And if a one-push vending machine would not be patentable, why is a one-push webpage?

I disagree (2, Insightful)

grahamsz (150076) | more than 8 years ago | (#15099080)

If a vending machine identified you, and automatically debited the card it kept on file when you pressed the "Diet Pepsi" button then it certainly would be patentable.

However the non-trivial idea would be a vending machine that identified the user, something that's a very common feature on websites.

Re:I disagree (1)

gowen (141411) | more than 8 years ago | (#15099126)

the non-trivial idea would be a vending machine that identified the user
Nonsense. A vending machine that worked like those Auto-Toll swipe cards -- read your ID remotely, and billed you accordingly -- would not be patentable. It's a trivial application of extant technology.

Similarly, using a pre-existing technology (Cookies) to identify a visitor to a website is a trivial, obvious application of extant technology, and should not be patentable.

Re:I disagree (1)

Waffle Iron (339739) | more than 8 years ago | (#15099288)

A robo-bar in a hotel room is pretty much just that. You pull out a diet pepsi, and $8.00 + 15% gratutity + 23% county sports stadium tax automatically gets added to your bill.

Re:Stupid, Stupid, Stupid (1)

TubeSteak (669689) | more than 8 years ago | (#15099115)

Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.
I wonder if I could get a patent on a vending machine that makes you use two, three or four button pushes to get your candy bar?

I call dibs! By the time I'm through, 'two' will be the new 'one' when it comes to pushing buttons.

Re:Stupid, Stupid, Stupid (0)

Anonymous Coward | more than 8 years ago | (#15099298)

> By the time I'm through, 'two' will be the new 'one' when it comes to pushing buttons.

Have you never seen a vending machine where you have to push E-4 to get a Snickers?

Software - Patents & Copyright (3, Insightful)

erbmjw (903229) | more than 8 years ago | (#15099031)

A very simple discussion point

Copryright is more applicable to software than Patents.

Feel free to discuss it, but I do not beleive that any person or group, has yet or will disprove the above statement.

I'm willing to engage in this discussion, furthermore I'm also willing to keep an open mind.

Software - Patents or Copyright (1)

jbeaupre (752124) | more than 8 years ago | (#15099074)

I've often thought it was more a question of patent OR copyright. Is a particular piece of software "science" or "art?" I'm sure someone could claim the two are not mutually exclusive, but I have this gut feeling they are. So, how about folks pick which protection applies. You want broad, but relatively short protection, or long and narrow.? One or the other but not both.

No idea patents! (2, Insightful)

Anonymous Coward | more than 8 years ago | (#15099033)

[..] a great many patents on mechanical objects were really patents on the algorithms they embodied.
So there are also bogus patents on mechanics, not much of a surprise there. Paul however neglects to mention that, just like the fact that the destinction isn't an artificial one--patents should be granted for overcomming engineering problems. Patents shouldn't be granted to the guy who first thinks of a space elevator, but to the guy who can build one. It just so happens that with software this distinction does not exist--if you can properly describe an algorithm you have implemented it.

He has many "ideas" (1)

ylikone (589264) | more than 8 years ago | (#15099056)

He has published many semi-interesting essays in Hackers and Painters: Big Ideas from the Computer Age [tinyurl.com] . I am not sure I fully agree with his ideas on patents. Most of his stuff is fairly pendantic and if you want a sampling, just go read his articles online [paulgraham.com] .

More interesting than Paul Graham (4, Interesting)

gowen (141411) | more than 8 years ago | (#15099057)

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

Anyway, I heartily recommend you read this fine demolition [idlewords.com] of Graham's opinions on painting [paulgraham.com] before giving this dilletante blowhard any of your copious free time.

Re:More interesting than Paul Graham (4, Insightful)

Bogtha (906264) | more than 8 years ago | (#15099142)

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film...

Does Graham actually claim to be an authority? It seems to me that he doesn't claim to be an authority, but fanboys tend to treat him as such. That isn't really his fault. What's he supposed to do, take a vow of silence just because some kids have latched onto him?

Re:Who's the blowhard now? (0)

Anonymous Coward | more than 8 years ago | (#15099148)

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

Anyway, I heartily recommend you read this fine demolition [idlewords.com] of Graham's opinions on painting [paulgraham.com] before giving this dilletante blowhard any of your copious free time.


I heartily recommend you read Paul Grahams bio:

"He has an AB from Cornell and a PhD in Computer Science from Harvard, and studied painting at RISD and the Accademia di Belle Arti in Florence."
http://www.paulgraham.com/bio.html [paulgraham.com]

Re:Who's the blowhard now? (1)

gowen (141411) | more than 8 years ago | (#15099201)

studied painting at RISD and the Accademia di Belle Arti in Florence.
And I studied French.
Doesn't make me an expert on French Grammar.
Besides, you're making a defence by appeal to authority : he studied painting, therefore his opinions on painting are correct. It may have escaped your notice, but the man critiquing Graham made a series of logical points and observations about the multifarious (and, indeed, obvious) differences between programming and painting. Is your rebuttal to these really "but Graham studied painting for an undisclosed amount of time".

I mean, was he an undergrad or a postgrad at RISD?
Did he graduate?
Did he do a 3 year fine arts course or half a dozen evening classes?
Did RISD really teach him that painters need a detailed understanding of the chemistry of paint?

Does a 40-year-old computer programmer really find the time to fit into two extended periods of study at art school? Don't those missing six years look kind of weird on his resume?

"Studied at" covers a multitude of sins, and even if a an appeal to authority were justified, where's the evidence Graham qualifies as an authority?

Re:More interesting than Paul Graham (0)

Anonymous Coward | more than 8 years ago | (#15099172)

You have Slashdot disease. You subscribe to groupthink so you believe you are right.

Re:More interesting than Paul Graham (0)

Anonymous Coward | more than 8 years ago | (#15099200)

[ Disclaimer: I'm no apologist for Paul Graham. I think his essays are mostly puff pieces; however, I do agree with the general notion that a good programmer IS a lot like an artist. ]

Demolition? Not. That link was amusing though. The author's primary objection seems to be that hackers don't get laid as much as oil painters. He also seems to be pissed that Graham decided to single out painters instead of poets, composers and pastry chefs or auto mechanics. Those last two are obviously progressive jabs.

The overall tone is that the author of this rant against Graham is just jealous.

Re:More interesting than Paul Graham (1)

ABaumann (748617) | more than 8 years ago | (#15099305)

You know, another guy once related art to computer science. I bet you'd think he's a "blowhard" too, so you probably don't want to take a look at his stuff.

Oh, by the way... His name is Donald Knuth.

Patents- (4, Insightful)

dteichman2 (841599) | more than 8 years ago | (#15099058)

"Are patents evil?"

EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."

Generalization (1)

Paul Rose (771894) | more than 8 years ago | (#15099218)

"Is foo evil?"

Extremist A: "Yes."

Extremist B: "No."

Non-extremist: "Depends..."

Re:Generalization (1)

Halo1 (136547) | more than 8 years ago | (#15099297)

And by changing "foo" to "bombing innocent people for no reason", it's immediately clear that it's a BS argument if not substantiated.

favicon (1)

gEvil (beta) (945888) | more than 8 years ago | (#15099059)

They were assigned to Viaweb, and became Yahoo's when they bought us.

Well, that certainly explains the Yahoo! favicon for his page... : p

Only because of the length of time (2, Insightful)

MikeRT (947531) | more than 8 years ago | (#15099065)

If companies could only do a one time patent that lasted up to three years, it'd be non-issue. The current time span (what is it, 17-20 years at least?) is far beyond the useful lifespan of the technology.

I am a strong supporter of patents, but get really pissed off at the "pro-innovation" camp (who isn't pro-innovation?) that has the audacity to draw a parallel between software "innovation" and genuine innovation in other industries. There hasn't been a radical new technology except in niche markets for some time that justifies a patent for more than three years. Not only that, but the cost to make one drug, test it and get it widely used by its target audience is probably closing in on the cost of writing several commercial applications.

He's confused (2, Interesting)

iplayfast (166447) | more than 8 years ago | (#15099071)

First he says...
Unfortunately, patent law is inconsistent on this point. Patent law in most countries says that algorithms aren't patentable. This rule is left over from a time when "algorithm" meant something like the Sieve of Eratosthenes.

and then he says...

In 1800, people could not see as readily as we can that a great many patents on mechanical objects were really patents on the algorithms they embodied.

and using this argument he says that if you don't like software patents you don't like patents in general.

I think there is a big difference between the method of a process, and the mechanical objects that implement them. I have no problem with people patenting mechanical objects (that are non-obvious). I do have a problem with people patenting methods that would work with those objects. If he thinks that algorithms implemented in mechanical objects is the same thing as algorithms, he isn't much of a lawyer.

Look, a clueless hacker! (0)

Anonymous Coward | more than 8 years ago | (#15099084)

Frankly, it surprises me how small a role patents play in the software business.
"I've never heard of croslicensing cart^Wagreements, but I'll write about software patents anyway."

patents dont protect enough (0)

Anonymous Coward | more than 8 years ago | (#15099089)

Inventors constantly get ripped off. Patent lawyers are the last chance for the inventor to earn some $$$ from their hard work. You see, the inventor sells their patent so they can earn something.
The patent system should be corrected to protect the little guy. That is, the "real" inventor should have rights when they sell it for less than 10% of the settlement price that the rich lawyers make. For example, I don't think the true RIM patent holder got 60M for their work, BUT THEY SHOULD.
The LITTLE guy invents, all others RIP US OFF!!!

Mod article troll! (1)

Spy der Mann (805235) | more than 8 years ago | (#15099092)

In a recent interview, Steve Ballmer coyly left open the possibility of attacking Linux on patent grounds. But I doubt Microsoft would ever be so stupid. They'd face the mother of all boycotts. And not just from the technical community in general; a lot of their own people would rebel.


Yes, but if they win, they'd kill Linux. And how can you boycott the only LEGAL operating system in the market? That'd be as ridiculous as boycotting gas stations for one day.

Frankly, I feel insulted that he refers this matter (Microsoft using patents vs. Linux) as "hacker opinion". We're talking about a friggin' monopoly here. The fact that those opposing Microsoft turn to be hackers is because Microsoft has FORCED them to be. By not releasing their specs, etc. Would we have OpenOffice compatibility with the Word binary format if it wasn't for the hackers? Would we have SAMBA?

Make no mistake, Mr. Graham. If Microsoft sees a gain in using patents against Linux (and I think they do, they've been backing up SCO all this time), they WILL. And with our screwed-up patent system, we could as well end up with a legalized tyranny. And this goes about EVERY software company who feels threatened by the Open Source movement. If Microsoft had patented a method for using web servers, we wouldn't have Apache. If they had patented a method for using XML in web browsing, we wouldn't have AJAX (unless we used IE, of course). Who says Adobe won't patent a software method for image manipulation, or that McAffee won't patent one about virus scanning?

Patents ARE Evil. They grant ABSOLUTE control over the industry to the highest bidder.

And the problem we're having right now is shortsighted people like you, who see patents as a "secondary problem", and those fighting monopolies and promoting democracy as "hackers". Sheesh! what's next? calling the founding fathers "terrorists"?

Errata (1)

Spy der Mann (805235) | more than 8 years ago | (#15099129)

in the last 2 paragraphs of my reply, i said "patents", i should have said "software patents".

(There ya go - for the record, yadda yadda)

Only legal OS? (1)

Nursie (632944) | more than 8 years ago | (#15099162)

I suppose there is a danger of that, but MS would have to take out Apple first...

Re:Only legal OS? (1)

UtucXul (658400) | more than 8 years ago | (#15099254)

And they would need to take out Sun as well. Not a big player for the pc market, but take out all the other free Unix-likes (since I assume the BSDs would get hit right after GNU/Linux) and that could change a lot.

And don't forget Unixware! (1)

Nursie (632944) | more than 8 years ago | (#15099309)

Dmmit, I nearly choked as I said that. SCO are already trying to kill open source though...

Re:Mod article troll! (1)

Eli Gottlieb (917758) | more than 8 years ago | (#15099170)

You do realize he uses ESR's definition of "hacker" [catb.org] , right?

Re:Mod article troll! (0)

Anonymous Coward | more than 8 years ago | (#15099255)

"Sheesh! what's next? calling the founding fathers "terrorists"? "

Umm, they were. They were vindictive rebels and torturers. Their main aim was to throw off the shackles of civilised life so that they could indulge in a little genocide.

Of all the World's countries, only the Americans and French are taught differently, but, hey, what do Americans know of history?

Re:Mod article troll! (1)

qwijibo (101731) | more than 8 years ago | (#15099295)

Microsoft can't kill Linux. They might be able to prevent companies like RedHat from selling Linux. However, those companies have it in their best interests to fight that with everything they have. Even if Linux could not be sold anymore, it's not going to get it removed from every server or desktop running it.

The Linux community doesn't exist to ensure the financial success of each member. Companies exist to make money. Most Linux fan(atic)s spend money on their Linux habit. Free OS's exist because enough people don't like commercial OS's. People who are willing to put their own time into something to get nothing in return, except the ability to benefit from a community of like minded individuals, are not likely to accept a decree that says their community must disband because some corporation is offended.

Killing Linux doesn't make everyone a Microsoft slave either. There are a lot of other OS's out there. Even in the ridiculous fantasy world where Linux was wiped off the entire planet, the BSD's are still there for free. Anyone who needs big company support can always move to Solaris x86.

Patents are rules around ideas. People have the ability to violate those rules when they don't like them. There may be consequences, but it's pretty hard to go after a large group of unrelated individuals and organizations. A class action lawsuit can be brought against a company who has many victims. A company can't sue "the world" into submission as easily. It would take millions of individual cases to do that, many of which would be in places that don't care about the US patent system.

/. riff (1)

Rob T Firefly (844560) | more than 8 years ago | (#15099099)

Slashdot has an icon that expresses the problem vividly: a knife and fork with the words "patent pending" superimposed.

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.
No, that's how the whole "news" thing works. If we were to have a posting every time a benign patent got assigned, our scroll wheels would wear away.

And speaking of things wearing away, has anyone patented a cranial skin graft? I now lack skin on my forehead from all the *facepalm*-ing this article inspired.

Paul Graham (3, Insightful)

thrillseeker (518224) | more than 8 years ago | (#15099100)

makes the statement in his article: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general."

He couldn't be more wrong.

Software is instructions to hardware. Instructions should not be patentable. Hardware should be patentable - though there may not be a business case to make it worthwhile.

The otehr day I had to give directions to a picnic to a group of soccer players. There's really only one reasonable way to get from where they were to where they'd be going. What if someone had patented the description of how to get from Point A to Point B, that is how to get some hardware from one state to another? Does anyone think it logical that I would have to pay a royalty for telling this bunch of 13-yr olds (well, their parents) directions to get to their picnic? No? Then why are a set of directions to a collection of hardware patentable?

The directions could have included a toll road - or an alternative existed to take a more crowded road instead. Here is a pay-for-the-patented-hardware concept that makes sense. Using the toll road costs money but saves time. Using the public road is cheaper in money, but costs traffic congestion. But either way, the directions to use either road are free for any to use. And for what it's worth - the public road has many services along it that make money. The toll road, built privately by private financing, saves a few minutes. Of course, in this case, the private financiers have taken a bath. They envisioned charging a bunch for the access rights to their frontage property to service providers - but few people use their overpriced path. A better business case could be made that the toll road owners should remove the tolls and collect a royalty from the service providers that would then invest in locating on their frontage road, but hey I'm not an investor in that endeavor so who'd listen to me.

There used to be services (maybe still are) before mapquest and friends that provided directions for trip planning - you paid $10 to AAA and they told you the "best" way to get from point A to point B. No one would have thought of patenting those directions, and you were not paying for a royalty for their use - your payment was for the work someone did (at sometime) to figure out a route - but you're free to look at a map and make some phone calls to the various state traffic agencies to find construction delay zones, etc. and work out your own route.

Say you planned, some years ago, to drive from Chicago to Los Angeles. Say you glanced at a map of the time and decided to "get on Route 66 headed west and stay on it till you see the ocean." Besides a trip with about 1000 burger joints, you now have some directions. Now say you asked your friend his idea of a good route for the trip, and he'd recently done that trip by contacting AAA, giving 'em $10 and they worked out a trip plan for him based on some criteria, and he got back: "get on Route 66 headed west and stay on it till you see the ocean." Do you owe $10 to AAA for those directions? What if they (like software) were patented?

Software patents are a bad idea. They impede progress. They tell (possibly justifiably patentable) hardware how to get from condition A to condition B. If those same directions would work on someone else's nonpatented hardware, then they should be free to be used.

software parents ARE different.... (2, Insightful)

Anonymous Coward | more than 8 years ago | (#15099103)

Paul talks about software patents being no different than hardware patents. This is clearly false. The difference, my friend, has to do with knowledge. That is, a hardware patent on what your called "Pullies lever and gears" expires and people are allowed ot build the same thing. But even before that they can pop open the box and SEE how the pullies lever and gears are put together. Software on the otherhand has no transparency at all, rather for software a person may never know how something was built ebcause the patent covers the idea, not the source code. And even after the patent expires the company would not be required to allow people to see their source code so the patented (now out of patent) software cans till not trully be reprduced.

If you look at long term effects then wouldnt it be likely for software that may be cutting edge to be lost, if say a company goes under and there is no copy of the code left for later.. and the world is left with lsot knowledge.

All well for an US company (2, Insightful)

hopopee (859193) | more than 8 years ago | (#15099107)

Yeah, this strategy might work for an US startup. But what about startups from other countries where software patenting has not yet evolved to the stage of cold war? Let's say they're doing great in their own country or even internationally. The next step? Of course they want to expand to US. And what has happened? Some US big companies might have already copied their ideas and patented them before this is happening. And there's always the patent trolls too.

From this point of view I'd say the patent system is working well in keeping away the smaller foreign competetion. Only bigger firms with the capital and strategy/vision of patenting obivious things in US has a fighting chance of surviving the system when dipping their feet into the US market.

Or am I understanding the situation wrong? I sure hope so.

I'm going to patent ... (0)

Anonymous Coward | more than 8 years ago | (#15099138)

... his painting "algorithm" and sue the arro-gnat twat out of existence.

Breath of fresh air (5, Insightful)

bsandersen (835481) | more than 8 years ago | (#15099143)

My first reaction to the (lengthy) article was simply, "it is a breath of fresh air to read something thoughtful and insightful on software patents." As part of full disclosure here, I should mention that I have one (6,865,655) and participated in the arcane and sometime frustrating process. That said, the author's point that "fixing" the system might not be the right thing to do, either gave me pause. He might have a point.

After participating in several start-ups, I can also attest that the number of patents held directly affects your valuation. The author alludes to this, "A patent seems to change the balance. It gives the acquirer an excuse to admit they couldn't copy what you're doing. It may also help them to grasp what's special about your technology." Right or wrong, it is one of the external measurements made by business today of a start-up's worth.

Software is the most complicated thing man has ever created. It isn't surprising that the Patent Office struggles. The question is, as software professionals, will we choose to help or just stand by like "art critics"? Software engineers usually see a bad system and want to immediately "chuck it", re-write it, and go again. We can't do that here. We need to do the thing we all hate most: on-going maintenance. We could help if we engage and participate. Perhaps more thoughtful discourse like this will help us get started. My 2-cents.

If you're against software patents... (2, Insightful)

91degrees (207121) | more than 8 years ago | (#15099157)

I'm against software patents. Copyright provides more than adequate protection for software.

I'm in favour of hardware patents. Hardware does not get copyrighted.

Why is this moreon telling us what our views are without even understanding them in the first place?

Best insight is in the footnotes (1)

mutterc (828335) | more than 8 years ago | (#15099161)

[8] If big companies don't want to wait for the government to take action, there is a way to fight back [against patent trolls] themselves. For a long time I thought there wasn't, because there was nothing to grab onto. But there is one resource patent trolls need: lawyers. Big technology companies between them generate a lot of legal business. If they agreed among themselves never to do business with any firm employing anyone who had worked for a patent troll, either as an employee or as outside counsel, they could probably starve the trolls of the lawyers they need.

Forward that to management, Microsoft/IBM ./ers!

As an IBM'er (1)

Nursie (632944) | more than 8 years ago | (#15099293)

though a recent addition to big blue, I'll say this - whilst big blue tries (IMHO) to be friendly, that doesn't mean they'll rule out anything as far as business methods go. They do feel that what they patent is worth a patent because they have researched and developed it, and they also feel that as long as the current system is in place they have no choice but to participate. Hiring practices in the legal department though - I'm sure they already have their own ethical guidelines, how much attention they pay to the whims of engineers I don't know. *Disclaimer - I do NOT speak for IBM, this is just the impression I have after a very small anmopunt of experience with them.

His analogy of the USPTO as a loose woman... (3, Funny)

ameline (771895) | more than 8 years ago | (#15099164)

It's a very good article -- and while I've not yet finished reading it, I loved this quote;

  "...the USPTO in effect slept with Amazon on the first date."

As a side note, if any USPTO examiners who are assigned to one of the several applications I have pending are reading this; I will still respect you in the morning -- no really, I will. :-)

Re:His analogy of the USPTO as a loose woman... (1)

cluke (30394) | more than 8 years ago | (#15099205)

OK, why don't you slip into something more comfortable, Bob's on his way round now.

had to sign over a few (1)

goldfita (953969) | more than 8 years ago | (#15099168)

I had to sign away all my rights to a few patents for a startup I worked for. I sometimes wonder what those patents actually mean since the design of the site was changing every month.

Actually, there is a difference: Copyright (4, Interesting)

Jerf (17166) | more than 8 years ago | (#15099273)

Actually, there is a good distinction you can draw between software patents and conventional patents that is strong enough that you can't automatically infer that being against software patents means you are against all patents: Software patents are the only things I know of where the patented objects are also covered under copyright law.

I go more into depth about this elsewhere [jerf.org] , but the short answer is that we shouldn't be surprised that patents, balanced for one type of use, and copyrights, balanced for another, make no sense when both are covering the same thing, since they were never designed to do that.

Obviousness is a real problem too, of course, but that's more a practical problem, one that could be corrected by more aggressive denials by the PTO. This is a fundamental conflict.

From the article ... (0)

Anonymous Coward | more than 8 years ago | (#15099291)

There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

----

Graham misses the more pertinent point: nothing about an embodiment in a computer should make it patentable. If something is well known in the non-computer world, then jamming it into a computer should not immediately qualify for a patent. That, my friends, is where the system is broken.

My Solution (1, Interesting)

Anonymous Coward | more than 8 years ago | (#15099302)

Reduce the length of the patents for software/business models to 2 years. That is more than adequate time to do something with it and doesn't lock things up. Patent trolls wouldn't have much time to work either.

Why software patents are different (2, Insightful)

Beryllium Sphere(tm) (193358) | more than 8 years ago | (#15099328)

Paul Graham says software patents are in the same category, ethically, as machine patents.

o Software can be sent to customers almost for free. Physical goods needed the protection of a 17-year monopoly because back in the old days progress was slow and it took years to build your factories. No patent monopoly, no payback. Software inventions can make money without patent protection.
o Software can use copyright protection.
o Patent examiners and juries can understand gears, wheels, and aircraft wings.
o Paul Graham says machine patents really cover the algorithms hard-coded into the arrangement of parts. No. Patents cover implementations. When the crankshaft was patented it was still legal to build other implementations of the algorithm "given linear motion l=sin(wt) set circular arc theta equal to l mod 2*pi*r and draw rotary power", as long as those implementations weren't crakshafts.
o Machines are crystallized human ingenuity and effort. Software patents are crystallized mathematics. The RSA patent, which made it illegal to do certain kinds of modular exponentiation, is different from anything in the mechanical world.
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