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Time To Abolish Software Patents?

Soulskill posted more than 6 years ago | from the reply-hazy-try-again dept.

Patents 259

gnujoshua writes "Has the time come to abolish software patents? Fortune columnist Roger Parloff reports on a new campaign called End Software Patents, which he views as 'attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system.' Ryan Paul of Ars Technica writes that the purpose of the campaign is to 'educate the public and encourage grass-roots patent reform activism in order to promote effective legislative solutions to the software patent problem.' The campaign site is informative and targets many types of readers, and it includes a scholarship contest with a top prize of $10,000.00. We've recently discussed the potential legal re-examination of software patents."

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259 comments

Yes. (2, Informative)

pipatron (966506) | more than 6 years ago | (#22598942)

Yes.

Yes-to proposition 'Huh!?'. (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#22599206)

Yes what? Yes your pants are too tight and your chicken mcnuggets are getting squeezed?

Re:Yes. (-1, Offtopic)

The Great Pretender (975978) | more than 6 years ago | (#22599750)

Yes, it's time to abolish software patents, but it's also time to stop all war. I don't like software patents, I don't like war. The companies owning software patents makes money, the global industrial-military complex makes money. Guess who's bigger with more political backing...good luck.

Re:Yes. (1)

hvm2hvm (1208954) | more than 6 years ago | (#22600100)

then how do you explain your signature? software patents are just a way of enforcing IP laws. i am against them but only because the way they are implemented right now, they do more harm than good.

Now it's personal! (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22598956)

Ok so we've established that software should be an exception to the rule that he who creates something novel shouldn't be rewarded. Any other fields of endevour we should exempt? Not that anyone here doesn't have a personal stake in the outcome.

copyright too.. (0)

emj (15659) | more than 6 years ago | (#22598996)

Isn't this a valid point? If we abolish copyright and patents there is no law or regulations that keeps me from stealing from poor OSS programmers. I can make as much profit as I want without ever having to give anything back..

Re:copyright too.. (2, Insightful)

pipatron (966506) | more than 6 years ago | (#22599136)

Yes there is, it's called copyright, and if you read GPL you can see how it works.

Re:copyright too.. (5, Informative)

harry666t (1062422) | more than 6 years ago | (#22599214)

1. software patents != copyright

2. abolishing COPYRIGHT, not PATENTS, would eventually mean that ALL the software will fall under a BSD-style license, which not only means free (but without copyleft ;/) but also means you can do whatever the fuck you want to to ANY piece of program in the world, including reverse engineering the hell out of anything, installing OS X on a non-Apple toaster, freely mixing Linux and leaked windows code, and so on. I would see it as a benefit. The OSS community and the open source / free software model is too powerful for any closed-source corporation (but maybe one) to stop, so simply forking a project and closing the source will mean the fork will die soon.

3. Abolishing copyright won't happen any time soon. *Maybe* if Stallman becomes the president.

Re:copyright too.. (3, Informative)

pipatron (966506) | more than 6 years ago | (#22599296)

Abolishing copyright won't happen any time soon. *Maybe* if Stallman becomes the president.

Stallman does not want to abolish copyright, the whole GPL relies on it to keep the source free. If he wanted "the other kind of free", he could already have chosen to use or change to a "BSD-style" license, or release everything to the public domain.

Re:copyright too.. (4, Interesting)

Peaker (72084) | more than 6 years ago | (#22599510)

You have a leap in your logic.
As one who opposes software copyrights, I use the GPL and not the BSD license.

As long as copyright exists, we use it, via the GPL, to prevent others from using it.
When copyright does not exist, the GPL is not necessary, and then the "BSD license"-style freedom takes place.

Choosing the BSD, rather than the GPL is the choice that reflects support of copyright -- it lets others use copyrights on derivatives of your work! If you do not support copyrights, disallow others from using copyright to restrict your software.

Those of us who oppose software copyrights are also pro-GPL, and I do believe Stallman is also in this crowd.

Re:copyright too.. (3, Informative)

pipatron (966506) | more than 6 years ago | (#22599650)

I don't understand what you mean by this. If I was a normal troll I'd say you don't know what you're talking about. Personally I don't like copyrights, but I do like the GPL. This is, however, illogical.

Richard Stallman wants everyone to be able to get the source to every computer program they run. He thinks this is very important, because without the source, you cannot modify the program, you can't learn from it, and you can't see what the program actually does. If you don't agree on this, then you won't agree with my next paragraph.

The only thing that stops $BIG_EVIL_COMPANY to take any GPLed open source project, add random proprietary changes to it, and release it without the new source code, is because if they do, they will break the GPL, and the GPL is only enforcible because of the copyright laws. Without the GPL, and in extension: the copyright law, they wouldn't have any obligation to release the source except for goodwill, and of course the other good things that comes with open source and free software. Some companies or individuals doesn't want or need those good things, and thus they oppose open source.

Of course, I'm not Stallman, and I know he doesn't like the current copyright system either, but completely removing copyrights without putting something else in as a replacement would be bad for free-as-in-libre software.

Re:copyright too.. (3, Interesting)

Dog-Cow (21281) | more than 6 years ago | (#22599922)

The parent you replied to blindly and stupidly assumes that if copyright did not exist in Law that all software developers would magically decide to release the source. You and I know that if copyright Law were to be abolished, source code would be treated as Trade Secrets by those who don't currently believe in Free Software.

Re:copyright too.. (1)

TeknoHog (164938) | more than 6 years ago | (#22599718)

Before patents, businesses and inventors used secrecy instead of law to protect their IP. Patents are meant to encourage the publishing of inventions, while reserving _commercial_ rights for a limited time. Copyrights serve a similar purpose, even if their current form reflects something else.

Without copyright and GPL, businesses can take our code, improve on it, and release closed-source products.

However, things like GPL and CC are licenses. I'm pretty sure people can agree on terms of use even without copyrights and patents.

Re:copyright too.. (1)

CastrTroy (595695) | more than 6 years ago | (#22599344)

Abolishing copyright doesn't force anybody to release source code. That's the biggest problem with software. You get copyright protection. But even after your copyright runs out, nobody can benefit from your work, because they don't have the source code.

Re:copyright too.. (1)

harry666t (1062422) | more than 6 years ago | (#22599438)

That's true, and sad. But at least nothing would hold you back from using a piece of software in whatever way you see fit. The Windows source has leaked years ago, once the OSS community would have it compile cleanly and got it working, I don't believe MS will stay in OS market too long (or they'll join us, having their only weapon against us destroyed).

Re:Now it's personal! (1)

DrLang21 (900992) | more than 6 years ago | (#22599008)

I personally don't have a problem with the concept of patenting software. And by software, I mean a full application. The biggest problem with software patents and the patent system as a whole is that you can patent bits and pieces of code/components. I say patent the product, not the product's components.

Re:Now it's personal! (5, Interesting)

somersault (912633) | more than 6 years ago | (#22599112)

So then someone can come along, change 1% of the design and sell it as their own? I'm thinking of cars as usual. In software's case, the final product is protected by copyright rather than patents. Individual methods are protected by patents. AFAIK America only introduced software patents in the 90s and things have gone downhill over there since then.

Re:Now it's personal! (1)

siddesu (698447) | more than 6 years ago | (#22599332)

Well, in truth, since anyone else could do the same to the (ostensibly very large by that time) public domain source base, and since costs of adding 1% original code won't be as high as they are to duplicate a car, I doubt you'll see a lot of that done.

I'd expect a boom in online services as companies switch from copyright to trade secrets though ;)

Re:Now it's personal! (1)

jimmypw (895344) | more than 6 years ago | (#22599352)

"AFAIK America only introduced software patents in the 90s and things have gone downhill over there since then"

In other news, SCO have become the richest company in the world By claiming the patent of granting a patent.

Re:Now it's personal! (0)

Anonymous Coward | more than 6 years ago | (#22599486)

Stallman for world leader!
Seriously.

Why is it that we can only dream of having people like that as our leaders, and we accept it as "reality" to go back to pushing for the ones we know are full of shit?

It's just so wrong, when you think about it. ./offtopic, redundant, whatever. It's friday, and I have beer.

Re:Now it's personal! (1)

schnikies79 (788746) | more than 6 years ago | (#22599614)

Because when it comes to world leaders there are things far higher on the list of importance than copyrights and patents.

With me, economics comes first, foreign policy second, social issues third, everything else in no particular order after that.

Re:Now it's personal! (1)

Peaker (72084) | more than 6 years ago | (#22599548)

How would they sell it as their own?
Recursively applying the same idea, the next guy will improve it by another 1% and sell it as his own and so forth.
Before you know it, hundreds of people are creating improvements for the benefit of society!

And all this, without using restrictions on society as an incentive? Sounds great to me.

Re:Now it's personal! (1)

somersault (912633) | more than 6 years ago | (#22599684)

I didn't say improve, I said change :p The moment a big company gets their paws on the idea they're going to be able to mass produce them a lot easier than any individual. Hand crafted stuff is often better quality, but the mass produced stuff is going to be cheaper and take the lion's share of the market. I think the original copyright and patent systems had it right, it's the stupid extensions that are causing issues here. It's not 'fair' if someone spends years inventing say a flying car, then GM buys one, reverse engineers it, puts a GM badge on it and claims it all as its own without paying any licensing fees. That's not much of an incentive to be an inventor IMO, though it benefits society if they have cheap flying cars (mainly because all the idiots will crash and burn I schpose)

Re:Now it's personal! (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22599154)

I agree, very fundamental things in software should be left unpatentable (mathematical calculations, basic operations, etc.), but for the application as a whole, maybe it would be acceptable. Don't we have copyright for things like that though? Software is technically a "work of art".

Re:Now it's personal! (1)

harry666t (1062422) | more than 6 years ago | (#22599288)

I have three wishes. 1. that I had mod points 2. that there was a "Stupid Idea" moderation option 3. that I won't need to wish that #1 and #2 come true. How do you see it? Patenting a word processor? Even more stupid than patenting a blinking cursor. Patenting Word 2007? Hell, why anybody would want to? >,<

Re:Now it's personal! (1)

pnewhook (788591) | more than 6 years ago | (#22599858)

If you look at what a patent is really for, a software patent does not make any sense whatsoever. They should have never existed.

For something to be patentable, it has to meet the following crieteria: novel, non-obvious and useful. Software by itself is not useful as it doesn't do anything - it must have a computer or some other hardware devices attached to it to be the least bit useful at all. If you don't then you essentially have a work of material created by an author and this would then fall under copyright law, not patent law.

Software should only be patentable as part of a largert device that does something. So for example if someone created a novel GPS device, the unit and the software together can be patented as the unit as a whole is useful. The algorithm that someone created may be novel, but as a stand alone it is not useful.

Feeding the troll... (5, Insightful)

cp.tar (871488) | more than 6 years ago | (#22599026)

Ok so we've established that software should be an exception to the rule that he who creates something novel shouldn't be rewarded.

No, we haven't.

We've established that mathematics should not be patentable.

Oh, BTW: you probably meant "an exception to the rule that he who creates something novel should be rewarded".
Otherwise it just doesn't make sense, with or without Chewbacca.

Any other fields of endevour we should exempt? Not that anyone here doesn't have a personal stake in the outcome.

Well, let's first see if patents even work as intended.

Feeding the guy I disagreee with. (1, Informative)

Anonymous Coward | more than 6 years ago | (#22599390)

"We've established that mathematics should not be patentable."

Software isn't mathmatics otherwise programmers would be mathmaticians. Second the law already says you can't patent math. Third copyright is no more effective for software than it has been for movies, music, games, and books.

"Well, let's first see if patents even work as intended."

They work but people would much rather gawk at the car accident.

Re:Now it's personal! (3, Insightful)

Anonymous Coward | more than 6 years ago | (#22599034)

Your sarcasm is predicated on the assumption that the only way to be
rewarded for creation is by patent.

Here's a list to start you off
* Works of fiction
* Mathematical theorems
* Business methods
* Algorithms
* SOFTWARE
    :

Yes, Novels (1)

CustomDesigned (250089) | more than 6 years ago | (#22599284)

Other things that you write should not be patentable. I can just see the patent trolls waiting for a blockbuster like Harry Potter to come along so they can claim their cut for having patented "protagonists with a hidden relationship to the villain - but in a novel about modern day alchemists".

Re:Now it's personal! (3, Insightful)

mdwh2 (535323) | more than 6 years ago | (#22599450)

There are lots of things which can't be patented - mathematics, scientific discoveries[*], plot devices in novels or films, methods of trolling Slashdot. Why should software algorithms be an exception to the rule?

(* well, except for genes, but that's mad too IMO.)

Yes. (1)

richie2000 (159732) | more than 6 years ago | (#22598966)

Actually, it's time to see if "regular" patents work as intended. If they don't we need to see if they can be fixed or if we have to get rid of them, and if so, if we should replace them with something else.

Re:Yes. (1)

s1d (1185389) | more than 6 years ago | (#22598994)

True. The patent system needs to evolve with time. It may have been good when it was first created but now with so many new developments it has lost relevance in many fields, most notably computer software.

Re:Yes. (1)

zehaeva (1136559) | more than 6 years ago | (#22599266)

So long as Congress does not look at Patents and think "Hey! These are pretty much like Copyrights! Wait a second the lengths of these two very similarly purposed laws are quite different, by a significant factor. Lets just make them match up to which ever is longer. Fellow Congressmen and women I present to you the Sunny Bono Patent Reform Act of 2008!"

Yes the thought of Congress re-evaluating Patents with the situation as it is, is a very scary thought to me. Imagine if Patents were extended to life time of inventor + 70 years.

It is more than enough to keep you awake at night.

Maybe (1)

mevets (322601) | more than 6 years ago | (#22599268)

That the patent laws are flawed is, well, patently obvious.

Software patents have contributed to making these flaws obvious enough for anyone to see.

In spirit, patent laws serve the greater good; unfortunately, in letter they fail. The same has been said about most of the 'isms' and 'anities'.

Weigh the options. (1, Insightful)

TripMaster Monkey (862126) | more than 6 years ago | (#22598984)

What are the implications of abolishing software patents? Weigh the possible advantages and disadvantages against the (questionable) advantages and (severe) disadvantages of the current system.

Really? -1 Hollow (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#22599362)

I don't know how this asswipe keeps getting his BS fortune cookie wisdom modded up, but he is actually making slashdot worse. If that is possible.

Here's an idea, the next time you think of a comment that a retarded child could have come up with, how bout doing us all a favor and keeping it to yourself. Slashdot moderators are such morons that even your most shallow bullshit somehow gets a modded to +5 Redundant.

Re:Weigh the options. (3, Insightful)

jellomizer (103300) | more than 6 years ago | (#22599374)

Well lets say I made a compression algorithm that will lossless compress all data by 1/2 (Yes it is mathmatically impossible, I know) This a new and marvel method. I don't patent it. Microsoft sees it reverse engineeres it and makes their own version and sells it to make billions of dollars as well say Toshiba uses it in their HardDrive technology to double its disk space just with a firmware update, and use this to make an other billions... Now here I am trying to peddal a little WinZip like app where Microsoft and Toshiba has already made my App useless with the technology I created. I would say that I should get some compensation for my creation...

I am not against software patents. I am againt most of the software patents. Software patents in my mind need to be very inovative and considered something where people said you can't do this with that, type of mantality. But most of the patents are not new ideas or something non ovious. Most of them are cases where any good programmer would come up with that method when given the problem.

Re:Weigh the options. (4, Interesting)

CastrTroy (595695) | more than 6 years ago | (#22599560)

The problem with software patents is that anything that's really novel, like your impossible compression algorithm is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm. There's patents on things like one-click shopping, which aren't mathematical algorithms, but which aren't really all that novel either. And then there's patents that are inventive, like GIF compression, MP3 Compression and others, but which fall under the umbrella of mathematical algorithms.

Re:Weigh the options. (5, Insightful)

mdwh2 (535323) | more than 6 years ago | (#22599592)

Well lets say I made a compression algorithm that will lossless compress all data by 1/2 (Yes it is mathmatically impossible, I know) This a new and marvel method. I don't patent it.

Historically, mathematicians (as well as other people like scientists) have never been granted an monopoly on the use of the results of their research, and it's not clear why should that change?

As you acknowledge, it's mathematically impossible, so let's look at a more likely situation: you release your great new application, except big_company comes along and points out a range of other patents of theirs that you are infringing upon.

At best, you might be allowed to cross-licence if you have something they want - in which case, they use your "invention" anyway. Otherwise, you have to stop distributing your product altogether (and hope you don't get sued).

Even if we did accept your hypothetical scenerio - it's not clear that a world where hard drives everywhere have double space is worse than one where the only allowed application of this knowledge is your little app.

Re:Weigh the options. (3, Insightful)

molarmass192 (608071) | more than 6 years ago | (#22599732)

You're not thinking about the larger ecosystem in your assumption. You created an algorithm, in order to turn the algorithm into a viable product that you can release to market, you need to package it as an app. However, although your algorithm is indeed your own design, the GUI you create potentially impedes on several method patents. You get sued. In order to avoid the lawsuit, you drop the GUI and release a command line tool. However, the file I/O routines you use impede on several software patents. You get sued. That's the problem with software patents, they don't work well in a stack environment. I think copyright is the answer and has been all along. Remember, even if MS clean room reverse engineers your code, unless they can make their reimplementation significantly different from your original source code implementation, which should be impossible since your algo would be incredibly unique, they're still infringing on your copyright. This is the same problem cover bands face when releasing a CD of cover music. The original artist still gets their dues, even if only a passage from the song is used.

Re:Weigh the options. (1)

TheLink (130905) | more than 6 years ago | (#22599742)

I'm against patents and copyrights, if any they should last for a very short time, maybe 7 years at most. Patents don't work well nowadays- if we want a rapid pace of innovation.

Take the example of Douglas Engelbart - he and his team were really innovative. Do you think that it was patents that encouraged that innovation? I doubt it.

If you are as innovative as they were, you will be so far ahead of your time that any patents would have long expired by the time people "got it" ;). They made lots of stuff that people reinvented 20 to 30 years later. Even so, some of the stuff they made were already hinted at by people before them - e.g. Vannevar Bush.

Extending the lifespan of patents to benefit people like that won't work since it'll reward numerous patent trolls more than the very very few _real_ innovators. So the concept of patents is rather broken.

Patents are only good for people who can only come up with one good idea in a lifetime. Or for companies that enslave such people. I'm exaggerating a bit, but really.

There are lots of people who patent stuff even if they aren't good at implementing them.

Imagine if tennis/golf players went around patenting novel and effective moves. Even if someone copies the top players, they aren't a bunch of wusses and cry babies - they just try to be better.

The fact that many big legit companies patent stuff more as a defensive or bargaining measure indicates that it's pretty broken.

Patents slow the pace of progress and innovation. They might have been useful when things were really slow, but I think things are moving faster now.

I can come up with plenty of ideas, but the hard part is implementing and getting it to market.

Lawyers weighed the options. We do have a verdict: (1)

D4C5CE (578304) | more than 6 years ago | (#22600326)

Allowing software patents has just what you said:

(questionable if any) advantages, and severe disadvantages.
For recent analysis see e.g. this article [grosche.com] at Oxford University Press.

Software patents aren't the problem (5, Insightful)

BadAnalogyGuy (945258) | more than 6 years ago | (#22598992)

You can bitch and moan all you want about software patents, but the problem is something else. It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders.

When patents are easily and fairly licensed, the incentive to use them is increased, and the patent holder reaps the rewards of the increased usage. When they are kept locked down tight and only used as bargaining chips in patent wars, then no one benefits, not even the patent holder.

Patents should be freely licensable if the holder does not currently produce a product based upon the patent. The patent should be negotiable to any other third party who requires it, and it should be available at a reasonable price for reasonable terms. The only time a licensing request should be denied is in the case of gross misconduct of the licensee or if the licensee is a direct competitor to whom providing the patent would materially damage the patent holder. An arbitration agency should be in charge of deciding if a license denial is valid, and to decide if a particular patent holder is denying license requests too often.

Re:Software patents aren't the problem (0, Interesting)

Anonymous Coward | more than 6 years ago | (#22599030)

Which shoots 'free market' in the face worse than patents do now.

Unused patents should simply expire.

Re:Software patents aren't the problem (1)

sdiz (224607) | more than 6 years ago | (#22599126)

why free market if it doesn't work as intended?

Re:Software patents aren't the problem (2, Insightful)

hitmark (640295) | more than 6 years ago | (#22599212)

because history shows that every other system breaks down to, ones you bring humans into the mix.

we have a nasty habit of finding ways to "win" a system, any system...

Correction:Software patents *are* the problem (1)

erlehmann (1045500) | more than 6 years ago | (#22599104)

As I recall, so-called "reasonable and non-discriminatory licensing" (RAND) makes use in free and open source software impossible.

Also, some guy claims he prooved mathematically that software patents fail (disclaimer: i don't understand it) [1].

[1] http://www.juergen-ernst.de/info_swpat_en.html [juergen-ernst.de]

Re:Software patents aren't the problem (4, Insightful)

Ed Avis (5917) | more than 6 years ago | (#22599144)

The trouble is you are adding another layer of legal process and bureaucracy on top of an already convoluted system. Large firms will be happy to employ legal departments to play the game - to appeal at arbitration hearings, and spend time debating what is 'reasonable terms' in front of a judge. For small companies it's just one more obstacle.

You seem to assume the existence of wise, benevolent Solomonic figures who can fairly arbitrate these disputes and decide what is 'reasonable'. But past experience with the USPTO and EPO shows that those who are already supposed to police the system can't be trusted; they tend to be captured by special interests and just do whatever will increase the scope of their own powers.

Re:Software patents aren't the problem (1)

erlehmann (1045500) | more than 6 years ago | (#22599148)

The only time a licensing request should be denied is [...] if the licensee is a direct competitor [...]
With statements like this, I sometimes wonder if all the stifling of innovation through hindrance of competition in economics is just part of a bigger plot to prevent the singularity from happening all too soon.

Take that, Kurzweil !

Re:Software patents aren't the problem (2, Insightful)

pipatron (966506) | more than 6 years ago | (#22599166)

no one benefits, not even the patent holder

One might argue that the patent holder gains by vendor lock-in and monopoly.

Software patents are the problem (0)

Anonymous Coward | more than 6 years ago | (#22599224)

Micro$oft gets sued too. For a lot of money. And the amount is rapidly increasing.

Fuck sw patents.

And M$, ofc

Re:Software patents are the problem (1)

pipatron (966506) | more than 6 years ago | (#22599326)

They are not being sued for using their own patents, their own patents are still good for them.

Re:Software patents aren't the problem (4, Insightful)

LinuxDon (925232) | more than 6 years ago | (#22599192)

The problem is that software patents mostly patent ideas instead of ready to use building blocks.
Take the Blackberry/RIM case as an example, the other company just patented 'wireless e-mail' instead of a usable documented working prototype.

Thus: all kinds of theoretic or obvious ideas are being patented, just waiting for someone to build them and then sue the hell out of them.

Re:Software patents aren't the problem (4, Insightful)

zehaeva (1136559) | more than 6 years ago | (#22599346)

Agreed, you should not be able to patent a design schema of a software system, you should have to build a working prototype. Patents should cover only producible/produced products. Not the imaginary ravings of some guy in his basement who thought "Wouldn't it be cool to have a wireless email system?" and run out and patent nothing more than a description of a system.

Re:Software patents aren't the problem (2, Interesting)

louks (1075763) | more than 6 years ago | (#22599228)

The only time a licensing request should be denied is in the case of gross misconduct of the licensee or if the licensee is a direct competitor to whom providing the patent would materially damage the patent holder.


I believe companies blocking 'direct competition licensing' would create as much litigation as infringement does now...

Case in point [wired.com], isn't nearly everyone who could use the "Pinch Technology" a direct competitor?

Re:Software patents aren't the problem (5, Insightful)

jmichaelg (148257) | more than 6 years ago | (#22599246)

It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders.

Sorry, but that's plain bullshit. Patents exist for two reasons - lawyers and patent clerks make money off of them and large corporations use them as cudgels to beat off small competitors who will completely overturn the corporation's revenue stream.

Back when software patents were first being discussed by the PTO, it was clear that "the little guy" wasn't part of the issue at all. The San Jose Mercury was reporting on the hearings as they were held around the country "to solicit public input..." When the road show came to Silicon Valley, developer after developer after developer got up and spoke against them. Corporate lawyer after corporate lawyer after corporate lawyer spoke in favor. Well there was one exception - a developer who had written a piece of software that would show you what you looked like with different hair cuts. Even back then there was already prior art on that "invention." Somebody had written a mug shot package for the Mac that police departments used to help identify perps.

Towards the end of the hearing, a developer got up and pointed out how almost all the developers had spoken against the proposal and the lawyers had spoken for it. Bruce Lehman, the Patent Commissioner at the time and who was running that particular hearing, agreed with a smirk - he was a lawyer. You see who won out.

I've heard a very few good developers speak in favor of patents. Bill Atkinson comes to mind but he was speaking more in the abstract vs the reality. Most of the developers whom I've heard favor patents weren't very good as developers and therefore didn't realize that patents strike at the very core of what we do which is improvise on pre-existing ideas. The best software out there isn't the software with some unique, and hence patentable, feature. It's the software that melds the features into a coherent, consistent package that works intuitively. Doing that well is so damn hard that having to fight patent trolls and hack developers who claim feature "x" is their invention adds nothing.

Re:Software patents aren't the problem (1)

NickFortune (613926) | more than 6 years ago | (#22599248)

You can bitch and moan all you want about software patents

Thank you. I can see where that is going to come in useful

The patent should be negotiable to any other third party who requires it, and it should be available at a reasonable price for reasonable terms.

mmmm... Reasonable according to whom? Reasonable by what criteria?

Suppose you have a patent I want to licence and we decide a dollar a year is reasonable. Suppose you have a million? Is a million dollars a year still reasonable? And let's not forget that even a seedcorn licence would be enough to freeze out most of the free software projects going. A lot of people would see that as a Bad Thing.

Suppose I'm selling a product and my margins are just on break even. Then any extra overhead could be enough top break the company. Suppose you just drop ten thousand junk patents and a cease and desist order into the mix. To get back to making a profit, I still have to break those patents in court, which I probably won't have the money to do.

I think the problems of software patents run a lot deeper than the occasional lock-out strategy, and I don't think they'll be solved by creating price controls on patent licences.

Re:Software patents aren't the problem (1)

betterunixthanunix (980855) | more than 6 years ago | (#22599310)

There is no way to fairly license software patents, because it is too easy to inadvertently infringe upon a software patent, without even realizing it. Consider, for example, a patent on virtual desktops (this is patented, IIRC). Now, you could easily ship a system with that functionality, without even realizing that's what you did; consider a person who is aware of the patent, ships a Linux system with only one VT and only single-workspace WMs, in an attempt to not infringe upon it. A user could, however, spawn a second X11 session, automatically creating a new VT, and thus infringing upon the patent.

The reason this is so easy is that software is like mathematics. Algorithms may arise inadvertently out of other algorithms, just like one mathematical system may inadvertently arise out of another (like the real numbers arising from pure set theory). If you cannot patent the pythagorean theorem, you should not be able to patent a system for compressing bitmapped images.

Re:Software patents aren't the problem (1)

CastrTroy (595695) | more than 6 years ago | (#22599654)

I'm not really for software patents in any way, but in the case of lossy compression, there actually is quite a bit of invention that goes into it. When you get down to it, there's a lot of research into what you can cut out that people won't notice. I think that is the really invenvtive part. It's not really just inherent in the data. When you think about an MP3 file, they put a lot of research into discovering what parts of the sound you could cut out, without too many people noticing.

Re:Software patents aren't the problem (0)

Anonymous Coward | more than 6 years ago | (#22599312)

equalivant would be guns do not kill people

people kill people.....

  or as Eddie Izzards says

    bullits kill People
     

Re:Software patents aren't the problem (1)

Secrity (742221) | more than 6 years ago | (#22599434)

"It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders."

The exact same thing could have been said in the late 19th and early 20th century. The Seldon patent crippled the ability of individuals to build cars, as did the RCA and AT&T patents on vacuum tubes, Bell's telephone patents, and the RCA radio patents. The courts ruled that the Seldon patent was not as mighty as all-inclusive as Seldon had claimed. The vacuum tube and radio patents were much more difficult to get around.

Re:Software patents ARE the problem (0)

Anonymous Coward | more than 6 years ago | (#22599836)

You can bitch and moan all you want about software patents, but the problem is something else. It is the inability of "the little guy" to license patents in a way that doesn't cripple him...


I disagree. The problem is that "the little guy" cannot afford the time nor the money to make sure that his software does not infringe on any existing patents.

Sure, he can get a patent or two, but what does that help when the big guys realize his software is competing to theirs and they want him gone? They'll just throw a few hundred patent documents at him and say that he's infringing. Please stop distributing or go to trial. The "little guy" does not have the money to go to trial, he does not have enough patents to go to a patent war, nor does he have the skill (and probably not the time) to read through the patent documents to check if he is in fact infringing. What do you suggest he do? Stop writing software?

Really, software patents are stupid and should be abolished. They're working against the very thing patents are supposed to protect. The little guy.

Cure worse than disease (3, Funny)

walruz (851125) | more than 6 years ago | (#22598998)

Abolition of Software Patents is just plainly nonsense. Not only because companies will madly lobby to destroy any attempt to do so, but because it's not fair for the rightful owners of software patents who developed software (NOT patent trolls).

We all know the answer, there should be some kind of legislation or law (IANAL) that should enforce patent owners to
a) keep developing software based on the patent, not just earn royalties
b) be rightful creators, or earn the patents on a company merge
c) be a real company, not just some patent troll
Where a, b & c should be all true.

My 2c,
W

Re:Cure worse than disease (4, Insightful)

SirGeek (120712) | more than 6 years ago | (#22599054)

You make it sound like they lose all their protection for the software. That isn't the case. It will STILL be under a copyright.

And if something can be easily re-implemented (i.e. CSS/deCSS), then does it really deserve the ability to stifle all competitors like patents do ? Shouldn't the best software/best value be the winner instead of whomever got to the patent office first ?

Neither software nor should processes be copyrighted. How do you think the world would have been if Ford had patented the assembly line ? Do you think we would have been able to advance manufacturing if he had ? Do you think he would have licensed it to his competitors ?

Re:Cure worse than disease (3, Interesting)

evilviper (135110) | more than 6 years ago | (#22599610)

And if something can be easily re-implemented (i.e. CSS/deCSS), then does it really deserve the ability to stifle all competitors like patents do ?

It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well...

The cost of development of both drugs and mathematical concepts (software) can be extremely high. And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing. It'll all instantly switch to undocumented and obfusticated binary-only code. And since reverse engineering is simply too easy, the only workable model will be to create a new product with the advent of each incremental improvement they come up with. The cost of developing something advanced like H.264 can't exactly be covered by selling support books...

How do you think the world would have been if Ford had patented the assembly line ?

How do you think the world would have been if the Wright brothers had patented the airplane?

Oh, that's right, they did... Not only did their patents NOT drag the industry down, it spurred the development of alternate ways to achieve flight, which soon after gave us the methods we know and use today... That nice new Boeing 787 doesn't exactly use "wing warping" now does it?

And I should point out that DVD-CSS is NOT patented, and the assembly line no doubt would not have been unique enough to be patented, or at least would have had more than enough prior art in slaughter houses to invalidate it quickly.

Re:Cure worse than disease (1)

NickFortune (613926) | more than 6 years ago | (#22600150)

The cost of development of both drugs and mathematical concepts (software) can be extremely high.

Right. Because developing a new theorem requires millions of dollars worth of industrial equipment as well as years and years of double blind testing before the regulators will let anyone use it.

Funny how people keep forgetting about that.

Re:Cure worse than disease (1)

evilviper (135110) | more than 6 years ago | (#22600200)

"developing a new theorem" does not require "millions of dollars" but it is, still, very expensive, and results in completely original results.

Look into the cost of developing H.264 for yourself rather than passive aggressively making an ass of yourself.

Re:Cure worse than disease (5, Insightful)

darjen (879890) | more than 6 years ago | (#22599208)

Abolition of Software Patents is just plainly nonsense.


What's nonsense is the claim that someone can have exclusive ownership over an idea or pattern. It creates a whole bunch of unintended consequences. I fail to see how legislation can fix that.

Re:Cure worse than disease (1)

morgan_greywolf (835522) | more than 6 years ago | (#22599210)

Not only because companies will madly lobby to destroy any attempt to do so
Actually, I think many of the biggest companies actually would be in favor of abolishing software patents at this point. Many patents are filed for an attained simply to use as ammunition in case a company gets legally attacked by competitors. It's kind of like nuclear weapons. What we have is mutually assured destruction -- okay, you sue me, so I'm now gonna sue you. Patent trolls exist precisely because they can't be countersued for patent infringement -- they have no product, so they can't possibly be countersued for patent infringement.

Re:Cure worse than disease (5, Interesting)

CastrTroy (595695) | more than 6 years ago | (#22599302)

My biggest problem with software patents is that most of the don't provide a working model. If you want to patent the software, you should have to provide all the source code with the patent that shows your "invention" working. I don't like how software gets 3 kinds of legal protection where anything else in the world only gets one. With software you get trade secrets, because you never have to release your source code. You also get copyright, so the relased binaries (or source code if you choose to release it) can't be copied unless specific permission is given. You also get patent protection. No other thing produce by people gets so much legal protection. My biggest problem with software patents is that they are mostly given on trivial inventions, where any skilled developer faced with the same problem would come up with a very similar solution.

Re:Cure worse than disease (1, Funny)

Anonymous Coward | more than 6 years ago | (#22600270)

First you say,

My biggest problem with software patents is that most of the don't provide a working model.
Later you say,

My biggest problem with software patents is that they are mostly given on trivial inventions, where any skilled developer faced with the same problem would come up with a very similar solution.
Well, I guess anyone can change their mind. At least the second one parses. :)

Re:Cure worse than disease (0)

Anonymous Coward | more than 6 years ago | (#22599370)

In EU there are no SW patents. I can clean my.. well you know what, with claims of M$ that I should implement the ribbon the way they do, or that I cannot implement a start menu (yes, KDE and Gnome are probably in violation).

It's not hard to imagine a world without them.

Re:Cure worse than disease (1)

mdwh2 (535323) | more than 6 years ago | (#22599628)

Abolition of Software Patents is just plainly nonsense. Not only because companies will madly lobby to destroy any attempt to do so, but because it's not fair for the rightful owners of software patents who developed software

This is why no software companies dare to trade in that unfair place known as Europe - however do they cope without software patents? It's just plain nonsense!

Re:Cure worse than disease (1)

renoX (11677) | more than 6 years ago | (#22599708)

>Abolition of Software Patents is just plainly nonsense.

[sarcasm] Of course as the fact there software patents do not exist in Europe show that a society couldn't live without software patents: clearly there is no software producer in Europe [/sarcasm]

Granted there are probably more software producer in the USA than in Europe, but this was already the case before SW patents were thought as valid by the courts, AFAIK no study has shown in increase in SW developments thanks to patent.

Unfortunately Britain is behind the times (2, Insightful)

IBBoard (1128019) | more than 6 years ago | (#22599016)

It's only a month ago that Slashdot covered the UK's decision to not reject software patents [slashdot.org] "out of hand".

So, while software patents probably do need abolishing (or at the very least being converted to a proper patent that can then be implemented or described in software, rather than an algorithmic patent) I think we in the UK have a leadership that think otherwise and a populace who don't know much better and don't care unless it is in some reality TV show.

Mathematical formula (0)

Anonymous Coward | more than 6 years ago | (#22599056)

According to the article, if somebody stumbles upon a new way of performing a mathematical calculation that somebody else stumbled upon earlier and patented it, the one who's late to the party is potentially facing some legal liabilities? What's next? Patenting a faster method to get cube roots, if they're found? If you're so worried and don't want anyone to use it or know about it, don't tell anyone. It's that simple. What has humanity come to? It's time to end software patents now!

Re:Mathematical formula (1)

erlehmann (1045500) | more than 6 years ago | (#22599240)

What's next? Patenting a faster method to get cube roots, if they're found?
Better ... patenting a faster method of scraping the USPTO database and comparing it against a frequently updated list of novel software products.

Good job with the bathwater, watch the baby (4, Insightful)

Mr. Underbridge (666784) | more than 6 years ago | (#22599116)

The problem isn't software patents. The problem is actually business model patents masquerading as software patents. Another issue is that patent length is standard across industries, when it should vary based on the timescale of innovation. Seven years in software is an epoch; the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.

But the mechanism by which one implements his invention shouldn't matter. The fact that the bar is too low is an entirely separate problem.

Re:Good job with the bathwater, watch the baby (1)

erlehmann (1045500) | more than 6 years ago | (#22599198)

the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.
Speaking of pharma stuff, did you knew that the industry probably spends more an advertising than on R&D [1] ?
Perhaps they should be able to patent certain types of ads, too ?

[1] http://www.google.com/search?ie=UTF-8&oe=UTF-8&sourceid=navclient&gfns=1&q=pharma+advertising+research [google.com]

Re:Good job with the bathwater, watch the baby (1)

mdwh2 (535323) | more than 6 years ago | (#22599760)

Whilst that is true, there are some issues specific to software that I think make it different to other patents:

* Software development can be far lower than in other industries - after all, one person and a computer can do it. So the legal fees to research whether a line of code infringes on a patent are far greater in terms of proportion, compared to some multi-million pound drug company or manufacturing company.

* Software seems to be more likely to be built on previous innovations. It's unclear why people should be rewarded when they are building on someone else's work (e.g., the patented shadow algorithm "Carmack's Reverse" in 3D graphics - not patented by Carmack, btw - is a modification of a shadow algorithm which is not patented). It also means that it's harder for new software to avoid building upon previous patented work - unlike hardware, where you can come out with a brand new product. Perhaps it's because software is still at a young age, in that fundamental components are still able to be patented - it's as if you were able to patent things like nuts and bolts, and the process of hammering a nail in.

* Software algorithms are a subset of mathematics. It's not clear how the line is drawn between an algorithm, and any mathematical process, nor is it clear why mathematical knowledge should be seen as an "invention" than can be owned by a person or corporation.

Right approach for USA (1)

H4x0r Jim Duggan (757476) | more than 6 years ago | (#22599174)

The legislative approach is difficult, but I think it's the best option in the USA. Getting good legislation would be very difficult. Most legislation in the USA is dreadful, but there's a good constitution, so the judges have the job of reconciling the letter of the law with common sense. So I think this campaign is taking the right approach by working via the court system.

FWIW, my background is that I worked on the EU anti-swpat campaign [compsoc.com].

Re:Right approach for USA (1)

Attila Dimedici (1036002) | more than 6 years ago | (#22599728)

The idea of using the courts to fix the problem is interesting, since the courts created the problem in the first place. Software patents didn't exist in the '70's. In 1980 the Supreme Court ruled that a device that included software could be patented, forcing the Patent Office to change its policies. In 1998 the Federal Circuit Court ruled that not only software was patentable, but business methods were as well. This last ruling is the source of the problem. I am not sure if the best action is in the courts or in the legislature. The only way to get it to change through the courts is by a Federal Circuit or Supreme Court ruling.

Impacts on Software Industry? (2, Insightful)

Scherpbier (470856) | more than 6 years ago | (#22599180)

Like many of you, I hate the idea of software patents, but I can't but worry about the impact of an abolishment of software patents.
My worries stem from several things:
  • Many companies have come to rely on software patents raising the barrier to entry for competitors. Software patents certainly can level the playing field because the size of a company has less to do with the defendability of a patent than you might think. Without software patents, a large company can "simply" throw a bunch of engineers at the problem and produce something similar very quickly. Is this better that the current software patent system?
  • My small company currently has software patents pending. Our valuation and chance of obtaining funding depends on these patents. In today's post dotcom industry, it has become very hard to obtain funding on just an idea alone.
  • If an abolishment somehow comes to fruition, what are the mechanics going to be? Like I mentioned, we have patents pending and have invested a substantial amount of money on lawyer and other patent fees. Are we going to get our money back? From whom? What if you already have a software patent? Will there be a refund?
Anyway, I think reform in patents is good but all these kinds of issues certainly need to be considered very carefully.

Re:Impacts on Software Industry? (1)

rocket22 (1131179) | more than 6 years ago | (#22600120)

Very interesting point of view: so, do you think patents are good for start ups? Do they really push innovation?

My concern here is that it is true tha patents can prevent new players to enter the game but then, what happens to OSS? I mean, many OSS projects are just plain alternative implementations of commercial products.

I'm not an expert, would they break the patent?

Hopefully not (1)

Rik Sweeney (471717) | more than 6 years ago | (#22599196)

I want to patent my idea first: It's a method of crippling a system's CPU using only a few lines of code. I'm not going to write it here obviously though, because otherwise someone will beat me to the chase.

Re:Hopefully not (5, Funny)

Rob T Firefly (844560) | more than 6 years ago | (#22599236)

I want to patent my idea first: It's a method of crippling a system's CPU using only a few lines of code. I'm not going to write it here obviously though, because otherwise someone will beat me to the chase.
Prior art. [microsoft.com]

Re:Hopefully not (0)

Anonymous Coward | more than 6 years ago | (#22599418)

Cripple the CPU or merely the performance?! Alas, these software patents are so vague!

Refusing to Invent (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22599238)

The problem isn't software patents per se, it's vague patents.

What's the worst that could happen if patents were abolished? Simple, inventors could refuse to invent stuff. So that tells you what should be patentable and what shouldn't be. If the "invention" is not something an inventor could prevent society from having by choosing not to invent it -- then it shouldn't be patentable. (Similarly, if the inventor could prevent society from having it, then it should be patentable.)

A patent is not a "grant" of rights, it is merely a recognition of a right the inventor already possesses, the right not to invent. Until the government gets it straight that governments don't "grant" rights, but rather recognize them, we will always have problems with patents.

(I checked Anonymous but my name still showed up in the preview...)

Re:Refusing to Invent (1)

Waffle Iron (339739) | more than 6 years ago | (#22599740)

IMO, there should be a change in the definition of what's patentable that goes along the lines of your argument. Instead of being able to patent anything that's not immediately obvious to a random mediocre engineer, the test should be: "It is unlikely that this idea would have been independently developed by anyone else in the world over the entire term of the patent."

(Maybe patent terms could be variable, and you could apply for a 4 year or whatever year patent if you couldn't make a convincing argument that the idea wouldn't be independently invented in the next 20 years.)

That probably would cut the volume of patents down by 99%, while still rewarding the few people who come up with truly groundbreaking ideas.

Abolish? (0)

Anonymous Coward | more than 6 years ago | (#22599662)

Abolish is such a strong word, can't we just politely ask the pacific time zone to secede?

The core problem is patenting ideas (1)

mlwmohawk (801821) | more than 6 years ago | (#22599784)

Software patents are not usable patents. "In the old days" a patent allowed a company to avoid R&D costs to produce a product. It was a way to allow inventors to create things and companies to build things. An inventor could invest his own time and money on his dream, patent an invention and a company could build the invention from the patent and pay a royalty. It was a beneficial arrangement. It makes a lot of sense in that context.

Patents today do nothing for the licensor except "protect" them from litigation on that patent. You still need to invest R&D to implement the idea. Worse yet, the ideas are so trivial they are valueless to the R&D. The only thing that they are good for is lawyers.

Patents Just Need Tweaking - Ben Klemens (3, Insightful)

davide marney (231845) | more than 6 years ago | (#22599902)

In "Math You Can't Use", Ben Klemens makes the point that the software development market is divided almost evenly into three segments: retail, consulting, and in-house. Software patents as currently defined and enforced benefit the first group, retail, but hurt the other two because they do not have the same market dynamics at all.

Patents are an artificial market force created to prevent certain kinds of unfair practices in a centralized, controlled-distribution market. Applied to a decentralized and distributed market such as that for free and open source software, patents create the nightmare scenario of an exponential increase in legal exposure as developers build upon each other's work.

The answer, then, isn't to do away with patents, but to tweak them so they make economic sense again.

Here is Chapter 5 [wordpress.com] of "Math You Can't Use", and it is well worth reading.

I just purchased the book and am looking forward to reading the rest. A very interesting work.

Not just Software patents (-1)

Anonymous Coward | more than 6 years ago | (#22600254)

It is time to abbolish all forms of patents, all forms of copyrights, and all forms of trademarks.

No (1)

cjb658 (1235986) | more than 6 years ago | (#22600300)

We don't need to get rid of software patents, we just need to get people to review them that know what the hell they're reading.
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