Encourage the USPTO to stop issuing software patents; deadline September 27

http://www.fsf.org/news/uspto-bilski-guidance

by tjr • 16 years ago

118 32 16 years ago

adamtj• 16 years ago

How are software patents different than non-software patents? It seems to me we should encourage the USPTO to stop issuing silly patents, software or otherwise. Or we should resist all patents. But, if a patent system is a worthwhile thing for a society to have, then software patents are as legitimate as any other.

Stephan_3• 16 years ago

Patents are meant to spur innovation and thereby improve social welfare. Just because this may work in certain industries, doesn't mean that it automatically works in other industries. There's a lot of evidence that the costs of software patents to society are higher than their benefits.

kiba• 16 years ago

It may work, but it doesn't mean it does work. You may remember James Watt's steam engine monopoly slowing down the industrial revolution in Britain.

Everybody believed that it does work without actually examining the evidence for the other industries.

billmcneale4• 16 years ago

> There's a lot of evidence that the costs of software patents to society are higher than their benefits

Where is that evidence? The US seems to be innovating quite a bit in the software area compared to other countries.

akeefer• 16 years ago

Patents only cover certain types of creative behavior for which patent protection makes sense as a way to encourage innovation. For example, it's never been possible to patent the plot of a novel, and up until recently it wasn't possible to patent an abstract business process or method.

The argument, then, is that patents on software are A) unnecessary to encourage innovation and B) actively discourage innovation. The argument for A) is that plenty of software development happened prior to it being patentable, few software developers or startups consider patentability when creating new products, software itself is well covered by trade secret and copyright protection, and the patents themselves contribute basically nothing to the world's store of knowledge about software. The argument for B) is that most software patent suits are complete BS and are launched either by trolls or in an anti-competitive manner rather than as a result of any sort of actual "theft," any piece of software could potentially infringe on hundreds of patents, patents themselves tend to cover "inventions" that anyone else solving a similar problem would come up with, and that patents themselves thus tend to either discourage people from even trying new ventures, out of fear of being sued, or serve to drain resources from companies that actually produce products, tying up resources that could actually be used for innovation. It's also worth noting that the 17/20 year term of a software patent is completely out of whack with the pace of innovation in software.

So you can try to split hairs around saying that some software patents (say those around non-obvious compression schemes) are legitimate, but I'd guess that something close to 99.95% of software patents are trivial/silly/should never have been granted, so in this case I'd argue that's totally worth throwing out that 0.05% of "good" patents in order to ensure that we get rid of the other 99.95% of them. I'd rather see that happen than try to defend that 0.05% and end up keeping even 5% of the current amount of BS patents.

brlewis• 16 years ago

The output of the process (a working machine) is provably equivalent. So you (and pg in one of his essays) conclude that the patent rules should be equivalent.

However, the purpose of patents is to promote progress by motivating people to invent. So what matters is the input to the process, i.e. the human activity that eventually leads to a working machine.

The patent system was designed for human activities that involve so much time and effort that people might not do them without an additional incentive, i.e. temporary monopoly. Picture 18th-century mechanical engineering. Building several different designs of a machine to see which works best would be a monumental task. It would be much easier to search the patent database and find something someone else invented, and cheaper to license it from them.

Imagine for a moment what would happen if you gave everyone a machine such that you could simply drop a diagram of a mechanical invention into it, and out the other end comes a working implementation. That would totally change the game. Invention would require much less effort. Everyone would be doing it without consulting the patent database, and the huge influx of inventors would overwhelm the patent office, making it impossible to find which inventions in the flood of incoming applications are novel and nonobvious.

This is what happened with software. Millions of people have these magic machines on their desks and in their backpacks and briefcases. No patent incentive is needed, just as none is needed for mathematics.

tzs3• 16 years ago

> The USPTO can, and should, exclude software from patent eligibility on other legal grounds: because software consists only of mathematics, which is not patentable, and the combination of such software with a general-purpose computer is obvious.

Software does not consist of only mathematics. One might use mathematics as part of understanding how a particular piece of software works, but that is not really different than the way one might use mathematics to understand how an electronic circuit works.

quackquack• 16 years ago

Really? You do know what a computer is right? Go check it out: "A programming language is an artificial language designed to express computations that can be performed by a machine" http://en.wikipedia.org/wiki/Programming_language

Crazy isn't it?

amalcon3• 16 years ago

All a computer can do is mathematics * . This is essentially axiomatic: the term "algorithm" is loosely defined as "what a computer can do."

If you think your software is doing anything else, you're looking at an abstraction on top of something mathematical.

* - OK, OK, they can also generate heat, RF, and other byproducts. Those things have little to do with software.

tzs3• 16 years ago

"All a computer can do is mathematics"

All an electrical circuit can do is physics. Therefore, electrical inventions should not be patentable as all they are is physics.

codemonkey• 16 years ago

In general, people are not trying to patent entire pieces of software. Indeed, it's difficult to understand how such a large work could reduce to mathematics. Rather, people are trying to patent very specific algorithms and methods that can be used to make a larger piece of software, and it's easier to see that those do reduce to mathematics.

Knuth argued well against patenting that: http://progfree.org/Patents/knuth-to-pto.txt

awakeasleep• 16 years ago

Hey guys, all it takes is a simple email, and they provide the address on the webpage. They also provide a form email.

I wrote my own:

I believe software patents have deleterious effects on both an individual and societal level.

As a software developer, my job is to encode symbols within a computer. Simply to represent an idea in the precise medium. Then I manipulate those symbols in whichever way seems logical.

To patent that process, to claim certain methods of writing and thinking are off limits, does not contribute to a free society, no matter how much money it allows an entity to make. Because a computer is only a tool for the mind, as a hammer is an extension of the arm. Patenting patterns of codified thought makes no more sense than patenting swings of the hammer.

TrevorJ4• 16 years ago

What fallout would this have in terms of existing companies who currently hold patents vs. new companies who have to innovate under a climate where there can't protect their work to the same extent? Wouldn't this create an unfair advantage for companies who already hold software patents?

I'm all for a reversal of the patent stupidity in the software sector, but unless it is retroactive to some extent I can see it scaring away innovators.

patrickaljord• 16 years ago

> a climate where there can't protect their work to the same extent?

Nobody is safe against patents, not even Microsoft, IBM, Google or Apple. And patents are only for 15 years so it's not like you'll have to wait 100+ years like with copyright.

TrevorJ4• 16 years ago

I agree, the current system is flawed too. However, under the "No new software patents" policy, lets say company A has x number of preexisting patents, and a new company wants to get into the field, they can't leverage and of company A's innovations, but company A could use anything company B comes up with however they like. That seems like a dealbreaker for any new company trying to raise capital.

nkurz2• 16 years ago

Yes, it would create a temporary advantage for companies already holding patents, but they already have an advantage. And in a relatively short period of time (less than 20 years) most of the patents will have expired and that advantage will go away.

But personally, I don't think it's going to scare away many innovators. As it is, many American software patents do not hold in Europe. Despite this, American companies rarely seem concerned that their 'patent disclosures' will be used against them by their European competitors.

I wager this is because they are not truly innovations of the sort that require protection in order to encourage their creation.

TrevorJ4• 16 years ago

20 years? Go back 20 years and look at the software we had then. 20 years is an eternity. Way too long to put up with the chilling effect this would have on new competition in the market. I'm not saying you don't have a point in the long term, but I think there's got to be some sort of middle ground here that can help insure that startups who want to innovate can confidently tell their investors that they aren't going to end up paying all that money just so Google or MS or whomever can copy them.

Elite• 16 years ago

>this process will be overseen by David Kappos, the current director of the USPTO and formerly an attorney at IBM in charge of their heavy-handed patent strategy.

Looks like the deck is already stacked. Are there any companies or elected officials with significant political/financial capital aggressively campaigning for this? This movement needs a champion to make this topic relevant to bureacrats and I don't know if Stallman's the guy.

nkurz2• 16 years ago

Sent mine:

I would encourage you to reduce or eliminate the use of "Software Patents".

I am a talented computer programmer, of the sort whom one might expect would be the beneficiary of such patents. Instead, they are a disincentive for me to do any work in the field. I do not believe it is possible to release any significant piece of software in this country without exposing myself to undue legal liability through patent infringement.

This is not because my ideas are not original, but because too many unduly broad patents patents have already been issued. If properly challenged, many of these patents would fall due to obviousness or evidence of prior art. But lacking the resources to mount such a defense, I simply avoid making creations that would otherwise be of benefit to society.

I do not believe this is the intended effect of patents. I and the country would benefit from a better law.

billmcneale4• 16 years ago

You will have to offer evidence that a patentless system works better than the current one. The US seems to be producing a large amount of software innovations while China (which doesn't have software patents) produces more cheap copycats than true innovations.

cma• 16 years ago

Software can be covered by both copyright and patent; isn't it unique in that regard?

jcroberts• 16 years ago

I refuse to believe in imaginary property.

nix• 16 years ago

Note that the USPTO is asking for comments on how it should comply with the Bilski decision, not for rants about software patents in general. Your comments will presumably carry more weight if you can explain why many software patents have more in common with business methods than with machines or transformations.

This looks like a good place to start: http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_d...

Encourage the USPTO to stop issuing software patents; deadline September 27

Related Stories