Poll: Do you support software patents?

https://news.ycombinator.com/item?id=2552740

by robryan • 15 years ago

429 303 15 years ago

news.ycombinator.com

Zak2• 15 years ago

In principle, they could give a lone programmer or small company that invents something awesome the edge needed to break in to a market dominated by large companies. I consider this to be desirable.

In practice, they're used by large companies to prevent lone programmers or small companies from breaking in to the markets they dominate. I do not consider this to be desirable.

They're more trouble than they're worth.

PakG1• 15 years ago

The biggest problem here is the transaction costs. If the costs to get and enforce patents were much much lower (time, money, opportunity cost), then patents would be really good. Only the large corporations have enough cash to enforce patents successfully.

Zak2• 15 years ago

I'm not sure that's the case. I think if patents were cheaper to get and enforce, people would patent more trivial things and sue each other far more often. Look at copyright enforcement as practices by the RIAA and Righthaven.

What really needs to be cheaper and easier is getting invalid patents overturned.

smokeyj• 15 years ago

Governments stifle competition and promote monopolies. Don't believe what they tell you.

krschultz• 15 years ago

Governments aren't conscious. Politicans have been convinced to support policys that help large corporations. Whether the politicans do this knowingly in return for campaign donations, or unknowingly because lobbyists convinced them that the patent system is a good idea, is unclear.

The distinction is important, because if it is the latter we just heed to lobby the right people. If it is the former, we just don't have enough money.

sunahsuh5• 15 years ago

While I agree that the second case is often the norm, I do have one counter-example -- I used to work for Riverbed Technology, a 9 year old company which does WAN optimization and competes against Cisco and Bluecoat, among others. Riverbed is (or was?) generally regarded as the tech leader in the market and its head start is based on a patented compression scheme. There's no question that the patent is a big part of what allowed the company to survive the entrance of 800-lb gorillas into the market and I'm fairly certain that if software patents were abolished today, that algorithm would be in Cisco's WAN solution tomorrow.

I still think the software patent system as it stands now needs serious reform but you know, that saying about a broken clock and all.

seanp2k4• 15 years ago

....and I would say that if Riverbed didn't provide the equivalent support (lol) as Cisco or didn't have the complete integration solutions that Cisco offers, then Cisco SHOULD win out. If you innovate and you're actually better, then you should win. If not, you should go out of business.

Isn't this what "free market" is all about? You can't have both.

EGreg• 15 years ago

This latest patent that caused an uproar was filed in 1992, when the idea was definitely innovative.

It just further goes to show that the 17 year span, at least, is too long for software.

Vivtek2• 15 years ago

I'm simply not convinced that the concept of an update button acting on the Internet was innovative - not when I could have sat down in high school and worked it out in a day, and when the very concept of an Internet makes it obvious. And yes, I was doing software in 1992 (finished college in '88), so I think I understand pretty damn well what was innovative at the time.

[Edit on re-reading: I couldn't have sat down in high school and done this in a day because I had never heard of the Internet in 1980-1984, but I could have made it work against Compuserve.]

This, like every other "patent on three hours' work", is nothing more than parasitic rent-seeking behavior, and it is anathema to the vitality of our economy. Lodsys should be deeply ashamed of trying to present this as a "solution" when they clearly simply want to profit from the work of others.

eof2• 15 years ago

With this type of support for abolishing software patents from the people who write the software; it seems we must be able to organize some sort of strike to just put an end to it immediately.

urbanturbanguy• 15 years ago

Let the Programing Proletariat unite :).

omouse2• 15 years ago

You can't because programmers aren't in control of themselves. The ones who have enough cash and power are more than willing to continue with the present system or they cash out and leave someone else to do the work of opposing it.

eof2• 15 years ago

You could make the same argument for any strike though, and many of them have been successful.

Symmetry2• 15 years ago

I said abolish, but really I think we could have a workable solution by either giving the PTO the funding it needs to do a good job, or eliminating the presumption of validity. The big problem we have now is that the law assumes that all patents are properly examined when the PTO doesn't have the resources to do a proper examination.

cperciva7• 15 years ago

I see no reason why an invention should be unpatentable simply because it involves software.

That said, it's obvious that the current system is broken; there are many patents which do not seem to do anything new, and simultaneously the cost of applying for patents deters the group for whom they are most important -- small innovators who are unable to commercialize their inventions.

The system needs to be fixed, not thrown out.

Locke168911• 15 years ago

This intrigues me, because fundamentally I see software as a form of mathematics. Given that mathematical equations aren't patentable, I don't believe that software should be either. Moreover, it seems that we already have many things in software preventing people from copying code wholesale (SaaS, the fundamental difficulty in reverse engineering compiled binaries). As a professional cryptographer/mathematician, how do you feel about the relation between mathematics and software?

blantonl3• 15 years ago

Devil's advocate here: business logic is often significantly incorporated into software. Much of this logic could be implemented on other platforms such as manual labor etc. But can't all of it be boiled down in the end as mathematics? Should we extend that assertion that far with regards to this argument?

cperciva7• 15 years ago

I think there's a big difference between a process and the underlying mathematics which explains why the process works. The matrix factorization which underlies the FFT was known long before Cooley and Tukey came along, but they were the first people to say "hey, this allows us to compute the DFT in O(N log N) time".

I don't think it should be possible to patent an equation, but I'm perfectly find with people patenting (subject to non-obviousness, lack of prior art, etc.) ways of using an equation to do something useful.

If patents had existed when Scipione del Ferro discovered how to solve cubics, I would have no problem with him receiving a patent on his method -- but because patents did not exist, he never published his method (he kept it as a "trade secret") and it wasn't revealed until 19 years after he died.

seanp2k4• 15 years ago

>"I see no reason why an invention should be unpatentable simply because it involves software."

Are you a software developer? Do you understand that often times, there is only a few logical ways of doing something?

nitrogen6• 15 years ago

cperciva is the creator of the Tarsnap backup service. So yes, he is very much a software developer. For future reference since you're new here, I suggest clicking on the username above a post to investigate a person's identity.

cperciva7• 15 years ago

Often the important part of an invention isn't figuring out how solve a problem; it's figuring out what the problem is in the first place.

Yes, I'm quite aware that some problems only have a few feasible solutions.

ericHosick2• 15 years ago

I've spent the last few years working on a new approach to developing software. I've spent a lot of my own money (at least $40,000 USD) on research to perfect it. Currently, from the research I've done, I've found no prior art.

Should I be able to patent this technology? Should I just release it? If I just release it, wouldn't a large company patent aspects of it and sue me for infringement (it costs $ to prove prior art).

At the very least, wouldn't a patent give me the option to open source the technology without the risk of aforementioned large company coming after me? And if said company does come after me, would it not give me a chance to buddy up with another "large" company?

Vivtek2• 15 years ago

If you just release it, it becomes prior art. And if you're not selling licenses, there's nothing to sue you over.

cperciva7• 15 years ago

Should I be able to patent this technology? Should I just release it? If I just release it, wouldn't a large company patent aspects of it and sue me for infringement (it costs $ to prove prior art).

If you publish your code, it becomes prior art. It doesn't cost much to stand up in court and say "uh, look guys, this code you're suing me over was published before you applied for your patent", and the case would be thrown out immediately.

In practice I doubt it would ever get that far: If there's one thing patent lawyers pay attention to, it's dates, and lawyers hate looking like idiots.

Symmetry2• 15 years ago

Lawyers do sometimes mess up on dates. I hate to trot this story out yet again, but MIT did get sued because of my dorm's laundry webserver. A webserver which had been Slashdoted before the company applied for its patent.

Of course, they did back down once the facts were explained to them so you're right at least that far.

ericHosick2• 15 years ago

I would hope it would be easy to show prior art, but stuff like this (http://m.theregister.co.uk/2011/04/21/texas_jury_says_google...) is where it becomes "hard" to prove prior art. Because you have to prove it against a jury of, generally, non-technical people. Here is the primary claim:

* a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring

a record search means utilizing a search key to access the linked list

the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed

* a means – utilizing the record search means – for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list

pbiggar• 15 years ago

I wrote a article about software patents a few years ago: http://paulbiggar.com/research/article.txt.

The issue seems to pop up every couple of years. Each time, abolition of software patents seems closer and closer, but never quite gets there.

kenjackson5• 15 years ago

I think the software field is so fast moving that the current time period for a patent is not justifiable. But I do think that someone who invents something should be able to get some advantage out of it, rather than having a Google just waiting to take the invention and make it big.

So I say make the patent expiration period 30 months. This gives you substantial lead time, yet prevents issues like people fearing Apple's multitouch patents years after they've gotten the patent.

Plus it really takes patent trolls off the table, since these patents will have likely expired before they can get them. And it also takes off the table acquiring companies for IP.

ry0ohki2• 15 years ago

My vote would be "Yes, if the Patent office approved only real innovative things". For example if I come up with some revolutionary face recognition technology, that seems novel enough to be patented. But if I just make a form with a submit button (Google's Patented home page), or Amazon's one click purchasing those are just ridiculous as a patents.

omellet• 15 years ago

Given how poorly the USPTO has performed thus far, it seems impossible that this could be correctly implemented. Better to err on the side of openness, and abolish them altogether.

mseebach2• 15 years ago

It's obvious that there are enormous swathes of innovation in the IT world that either happened or would have happened without patents. Amazon would probably not have thought twice about developing one-click checkout if it hadn't been patentable and it seems perfectly plausible that RIM got the idea for the BlackBerry independently of that troll that sued them.

But there are also some pretty deep stuff that seems less obvious, my favourite example is MP3. I'm no expert in the field, but it does not seem at all obvious to me to compress music like that, and it seems to be the result of a real invention process.

It's clearly in everybody's interest that they publish their codec as widely as possible, rather than make a broke-by-design binary-only distribution. Why should they not be allowed the same protection as, say, Volkswagen inventing a new fuel pump?

notJim7• 15 years ago

I hate this approach to governance. How can we ever hope to run a competent democracy when the citizens of that democracy assume that government can't be improved?

kevinpet2• 15 years ago

If google really has a patent on that home page, I'd suspect it is a design patent, which is an entirely different kind of beast. It's more like trademark rights.

ry0ohki2• 15 years ago

I don't know the differences but here is the Patent http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec...

binarymax• 15 years ago

Its a slippery slope. Who gets to define what is ridiculous? You can say 'the courts', but one judge may differ from another and therein lies a deeper issue.

Silhouette2• 15 years ago

I think the worst practical thing about software patents is that they create uncertainty. If there is one thing that is universally abhorred in the business world, it is uncertainty.

There needs to be a fast, cheap, reliable method by which small businesses can determine whether they are affected by anyone else's patent rights, and if so, by whose and to what extent. This way they can enter useful negotiations and adjust or abandon their plans as appropriate if patents are involved, or they can build their business free of unknown liability otherwise.

Given that I can see no viable means of ever constructing such a system, I don't see how patents or any similar legal tools will ever be anything but a tool for those with vast resources to crush competitors with few resources through means other than fair competition in the market.

thwarted• 15 years ago

That wouldn't stop someone from patenting something that someone else determined was unpatented and then went after them for infringement.

Silhouette2• 15 years ago

Unless that constitutes a clear-cut case of prior art in whatever system you have, I don't think the system qualifies as "fast, cheap, reliable".

mrcharles6• 15 years ago

I can't stand the idea that I might be at my computer, working with code, and develop something independently which later causes me to get sued. Abolish all software patents.

edited to add "software".

nimrody2• 15 years ago

If you abolish all patents you leave two options for inventors [some patents truly are ingenious]:

- Keep it as a trade secret. You get one source for a product, and less innovation.

- Publish it and suffer the consequences of the big companies copying it and making profit on your work.

robryan2• 15 years ago

Trade secret actually isn't a bad option, if you patent truly had legs then your secret is probably going to be safe for a fair amount of time. If your patent is getting people on a technicality and really isn't very innovative then your secret won't be much of a secret.

jxcole3• 15 years ago

You know, I heard PG argue this in his software patent article, and I don't buy it. In the end, necessity is the mother of invention. Software engineers invent things because they need them. They would not, by default, either try to keep it as a secret or patent it.

Let's take the funny example of Amzon vs B&N on the one-click system. Do you think Amazon would not use the one click system if it were unpatenable? In the case of modern software patents, keeping it a secret is equivalent to not using it all. Since you invented it in the first place, I find this outcome to be excessively unlikely.

You are also suffering under the misconception that a lone programmer or programming pair would be incapable of standing up to big markets with a software invention. If his invention is really worth it's muster, he can come out with a profitable product that blows big companies out of the water. I've seen it happen before.

burgerbrain6• 15 years ago

I call B.S.

Let's take what I often here cited as one of the best software patents (personally, I think it is the worst.. but that's another story), RSA. Did that patent really prevent others from using/profiting on it? Hardly (although in most cases the "profiting off of" thing is a stretch, unless the explicit purpose of their product was cryptographic in nature.

Now, what if they had kept it a trade secret? Just look at their RC4. They kept it a secret and got a few years of exclusivity but eventually we all got the algorithm, because that's just how software works.

20 year exclusivity contracts are waaaay too long. I think the trade secrets route where "you have it until others figure it out" is far more fair and workable.

abrahamsen3• 15 years ago

I very much favor the trade secret option, at least for software.

Patents are (theoretically) a pragmatic compromise between 1) the benefits to society of having people publish their ideas, and 2) the drawbacks to society of giving someone a time limited monopoly on the exploitation of the idea.

For software I believe the drawbacks in general far outweigh the benefits. There might be examples of "nobody else would have thought of this within the patent period" inventions, but they are rare enough that it does not make sense to have special laws for those cases.

In the physical "better mousetrap" world the issue is different. The situation is similar to the Hacker News startup world in that ideas are plenty. However, the cost of productizing the ideas is high, and there is less of a first mover advantage, access to distribution channels is more important. So patents in the "better mousetrap" world protects not the idea, but the investment of turning the idea into a product. The drawbacks of patents here are also smaller, as you rarely build unrelated products upon the "better mousetrap", so the cost of a monopoly often stays limited to the specific market. Patents here might be a good compromise.

In medicine there is a similar situation in that many ideas are "free" from public funded research, but useless without the very expensive clinical trials. The patents basically protects the investment in clinical trials, and no so much original research. However the cost of patents is huge. People die because they can't afford patented medicine (which include initial cost for the clinical tests, marginal cost, distributed cost of failed products, and profit), even though they could easily afford the marginal cost alone. It would be good to get rid of patents here, but they must be replaced with another system to cover the cost of the clinical tests.

bborud• 15 years ago

your first point wrongfully assumes that the patent system is the dominant mechanism for spreading inventions. it may have been intended to work this way, but this is not how it works in real life.

if you have ever worked for a software company that has a competent legal department, you know that you must stay away from patents. under no circumstances are you allowed to communicate that you have looked at any given patent or even acknowledge the existence of a patent.

patents are treated with more fear than toxic waste in IPR sensitive businesses.

besides, if you don't publish and you do something clever, how long do you think it would take for the competition to figure out what you were doing? or for people in academia to publish something on it? or for some independent blogger with too much time on his or her hands?

I wish people would consider reality rather than some make-believe world that does not exist when thinking about patents. so much time, money and intellectual energy is wasted on this nonsense. not to mention that it is clogging up the courts with absolutely pointless legal battles.

we, as a society, have better things to do.

dspeyer2• 15 years ago

Trade secrets are less secret than patents, because outside engineers don't carefully avoid reading trade secrets.

Also, hardly any secret can be kept for as long as a patent lasts.

albedoa• 15 years ago

This John Carmack quote is relevant and shares your sentiments:

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying."

http://en.wikiquote.org/wiki/John_D._Carmack

jcromartie2• 15 years ago

Except it's even worse than that: usually patent trolls haven't even written the code to solve the problem. Working code is not required to be granted a patent.

kenjackson5• 15 years ago

In theory that shouldn't be patentable. What John Carmack is describing is something that is obvious to a craftsperson in the field.

OTOH it does still preclude John from being presented with a problem and then doing someone quite ingenious to do a great solution that seems actually quite "novel", to learn that someone else did it years before.

But for patents, if you follow logical steps from a given problem then you shouldn't be granted a patent.

In fact the way patents should work is that the patent officer spends a week trying to solve said problem themselves. And only after that attempt, read the actual patent. If they're struck with, "Ahh... yes, good idea, wouldn't have thought of it mysefl" then its potentially patentable. But if the patent officer says, "Yeah, that was my second attempt." or "that's largely derivative of my general line of logic in my other attempts" then it shoudln't be patentable.

nh2• 15 years ago

devils advocate: What if you independently came up with tablet like device and called it an 'iPad'

monochromatic4• 15 years ago

That's not a patent question.

anamax3• 15 years ago

> I can't stand the idea that I might be at my computer, working with code, and develop something independently which later causes me to get sued. Abolish all patents.

I can't stand the idea that I might be in my shop/lab, working with metal/wood/plastic/chemicals, and develop something independently which later causes me to get sued. Abolish all patents.

postfuturist• 15 years ago

Yes, patents infringe on people's rights, to foster innovation. Getting to patent something isn't a right, it's a privilege. As you've illustrated, all patents are inherently undesirable--at least for certain parties. And I agree. They should be abolished.

jerf2• 15 years ago

You're missing a critical difference. Patents are supposed to be "unobvious". A normal person just working in their shop should not just accidentally stumble across a patented thing, because by definition the patented thing should not be obvious to one skilled in the art.

Programmers on the other hand can indeed pop open an editor, spend a few minutes with Ruby on Rails implementing "a standard business procedure, but on the Internet!", and violate a patent. Or multiple patents. In fact, the very fact that we have patent trolls that can run around and sue business after business after business for the same patent, while the businesses have no evidence that shows they have communicated with each other about the patented subject, ought to be proof positive that the patent is obvious and shouldn't be patentable.

An amazing number of patents that actually are being litigated really are "X, but on a computer!" or some variant thereof ("X, but on a network device!" is one the company I work for has gotten hit with). I'm not exaggerating, for all the verbiage and diagrams this really is a reasonable summary of many of them.

Your metaphor fails, because what is not a realistic risk for people working in shops or labs is a perfectly reasonable risk for a hobby programmer, let alone a pro.

Perhaps programmers are overreacting because of all the bad ones and there is a core of goodness deep down in there, but I'm willing to find out the hard way.

coffeeaddicted6• 15 years ago

You'd have to ask the people in the corresponding industries what they think about it. Patents might not have the same effects in other industries. We have on hacker news obviously mostly experiences with software-patents. From what I've read similar patent discussions are indeed also happening in other industries like in pharmaceutical research as advancements there also often blocked by patents, which is just the opposite of what was the original reason for the patent system.

petegrif11• 15 years ago

One well documented problem here is 'hindsight effect.' After something has been invented and has been used for even a short while it becomes 'obvious.' This effect is so powerful that it is in fact difficult for attorneys representing patent holders where patents are being challenged for being 'obvious' to defend the case because juries now find what was non-obvious at the time to now be obvious. Studies show that this is not only potent but pervasive - being smart and well educated does not mean one can rewind time any better than the next person. It is hard to recapture that innocent state before the innovation.

billmcneale2• 15 years ago

How about the idea that you spend months and hundreds of thousands of dollars of your own money to come up with a new product, and two weeks after you launch, another company with a lot of money releases a copycat of your product?

mrcharles6• 15 years ago

Sorry to all, I specifically meant software patents. Hardware patents are different as they often rely on physical creation of objects and a non-trivial investment in materials/development.

Conversely a software idea can be thought up in a few minutes and implemented in the same. In app purchases isn't exactly a clever idea or something that was revelatory. It was simple software evolution.

notJim7• 15 years ago

You're saying all software ideas can be thought of and implemented in a few minutes? That is both absurd, and an insult to the innovation that happens in software.

You have 10 minutes, give me an implementation of something that improves upon H.264 by 30%.

HeyLaughingBoy3• 15 years ago

No, there is no difference. If you're going to claim that they're different because one may require a "non-trivial investment (1)" then you have to specify that hardware patents that only require a trivial investment are similarly invalid.

The bottom line is that patents are patents. It's inconsistent to be against one type and not another. I understand why patents exist, but I also agree with the Carmack statement above.

(1) This is clearly not true. I know someone who patented an idea relating to battery management hardware that occurred to him as he was describing a problem to me. It was novel and "not apparent to a similarly skilled person.. etc." But it didn't take any more investment than pen and paper to think through the concept.

rlpb2• 15 years ago

Fixing your problem would only need the current system to be modified such that independent invention is not infringing. One way, for example, is to make it permissible for independent invention to be considered evidence that the patent is obvious to those skilled in the art and thus not patentable. A patent already granted would be repealed under these circumstances.

Would you still be in favour of abolishment, and if so why?

jcromartie2• 15 years ago

How would you prove an "independent" invention was really developed independently of the patent? You can't prove that someone didn't read something.

podperson• 15 years ago

I voted for the "abolish all" option despite the fact I'm actually in favor of patents in general and don't think software should be distinct from hardware, but the situation has gotten ridiculous (as has the situation with patents in general).

I think that software should only be protected by copyright if the source code is placed in escrow and made available when the company goes belly-up or when the (strictly limited) copyright period expires.

I think that the patent system needs to be thoroughly reformed so as to do a better job of covering software, hardware, and a blend of the two. John Carmack's example is compelling but if patents were handled properly the odds of such a thing occurring would be as remote as the odds of doing the same thing in your backyard workshop with a lathe.

seanp2k4• 15 years ago

>"the odds of such a thing occurring would be as remote as the odds of doing the same thing in your backyard workshop with a lathe."

No. The difference is that PHYSICAL TANGIBLE things exist in the "analog" realm have infinite possibilities. Things that exist in the digital realm have a finite number of possibilities, and if you limit yourself to a particular subset of things you can even possibly do (such as those things which are implemented in computer programming languages), the odds go up greatly. If I tell someone to build a table leg on a lathe, there would probably be many variations between skilled builders. If I tell someone to make an efficient file store (or in patent speak "digital storage"), lots of people would probably come up with something similar...but that's patented: http://www.google.com/patents?q=digital+storage&btnG=Sea...

anigbrowl8• 15 years ago

Me neither. But what about the opposite case - you work on something for a long time, and then make a breakthrough. Genius! You apply your breakthrough to do something awesome and release it out into the world. Someone else notes, it, reverse engineers it, and has a better marketing operation than you so they make $$$ and you get nothing. without patents, how do you protect your genuinely original work?

I'm not a fan of software patents. To be honest, I wish we didn't need a patent system at all. But since we don't live in the Star Trek universe and world communism turns out not to be the economic panacea that its creators hoped, we need something to protect the rights of inventors. Same thing with copyright - before it came into being, artists and writers had to rely either on fickle patronage or else hope to make some money on their first sales run because after that it was a free-for-all. Although I hate the way IP law and institutions have swung towards the opposite extreme and are now damaging to consumers and the general cause of innovation, those rules exist to solve a genuine economic problem.

It would be easier to overturn software patents if there were some alternative proposal to reliably secure the fruits of innovation to the inventor. If that task is left to the market, then a) there's abundant evidence that profit will win over ethics, and consumers won't know or care and b) people whose time is best spent innovating will have to spend more effort on marketing and monetizing their IP and fending off competitors, which is inefficient for solo inventors or small firms. So is spending a lot of time on patent work, admittedly, but a patent is a more reliable shield against having one's invention ripped off.

stewbrew• 15 years ago

Are you able to tell/estimate what's the proportion of software patent cases that will bring profit to the people who actually did the work? And how many cases were initiated by those people because they felt at risk.

coffeeaddicted6• 15 years ago

Please don't mix up copyright and patents. I'm pretty sure if this poll would be about copyrights you would find out that a lot more people here do in fact like the copyright system. Copyright prevents stealing code, everyone who does copy code knows he is doing that. But you have basically no chance knowing when you break patents until someone does sue you or by having patent-lawyers which go over all your code all the time and look for potential trouble.

Coding is a creative process - I write pages of code each day and every single line and idea I use in there might be covered by a patent of which I haven't heard yet. How is that supposed to work? We don't have patents for writing, music, painting, etc. although you could use the same arguments about original work and the danger of people ripping it off (we do have copyright!).

petegrif11• 15 years ago

There are many ideas that I can't stand. Fortunately I weigh them against their likelihood and find that reassuring. I suggest you do likewise. The probability that in your noodling you will develop something non-obvious and worthy of intellectual protection and will nonetheless continue obliviously developing it, without the slightest idea there may be protected prior art is vanishingly small. Consequently your paranoid intuition that we should abolish all software patents may be laid to rest. There may well be good reasons to investigate the patent system. IMHO this is not one of them. Hope this helps.

checoivan• 15 years ago

There's a money incentive at work for each patent submission.

Every time I stare at that patent submission form I can't help but to imagine somebody doing a cool thing which does something similar, getting squashed by a lawyer.

I've a couple of those forms which I filled, but never submitted.

blantonl3• 15 years ago

I apologize in advance for being short with this question, but what do you consider a "software patent?"

nimrody2• 15 years ago

Where do you draw the line between a "software patent" and a hardware one? Doesn't make sense to make a distinction based on the method of implementation (especially given that lots of HW is micro-programmable).

Yes - many silly patents are being filed for unreasonable reasons (fight patent wars, get a bonus, etc.) But making a distinction based on only on way of implementation is just as silly.

linuxhansl• 15 years ago

Since this is specific to software patents, my vote was to abolish them all. Patents on Software make not sense (other protections like Copyright, are essential, though). I have yet to see one "invention" that would not have seen the light of day without software patents.

Patents are a method to protect significant costs cost of an invention (to incentivize research). Having an idea for an algorithm is does not represent a great cost and it is not in the interest of society to grant a monopoly).

nsantos• 15 years ago

One of the founders interviewed in Founders at Work mentioned something about this... I believe it was Woz.

I'm working at the moment, so can't refer to the book; if anyone else has it handy, please supply said quote. :D

rkalla• 15 years ago

I have a hard time with this topic. Of course the only thing that ever gets covered in main-stream tech media is the abuse by patent trolls suing Company X because they are using their "electronic key-input device" patent to type on their computers.

We all roll our eyes and go "Damn these patents! DAMN THEM!"

But then I think of the purpose of the patent system in general: to protect and encourage innovation. I think of the research scientists coming up with approaches to genuinely unique and interesting problems and yes, I want them protected from getting rail-roaded by larger software firms.

I've discussed this with a patent attorney before and his feeling is that software patents are generally a good thing, but there has to be ONE change that would do away with most of the bullshit patents: proof of implementation.

Right now, apparently, I can patent the 40-click checkout process and sue Amazon when they implement it... but I never need to implement it, release it or use it in production. I just need to think of the idea and I can patent it.

I imagine a lot of these IP-only firms wouldn't have such a strong grip on stupid garbage patents if it required them to show working implementations.

I believe this is the same way with patents in manufacturing. Someone correct me if I'm wrong, but I think you need to produce the mechanical process you are patenting and at least show it is viable before patenting it?

Whether that is true or not, requiring that of patenters would go a long way of making the work more worthwhile and not just a bunch of lawyers sitting in a room with a few engineers, waving their hands around all day until they invent and patent the use of desk chairs.

anamax3• 15 years ago

> I believe this is the same way with patents in manufacturing. Someone correct me if I'm wrong, but I think you need to produce the mechanical process you are patenting and at least show it is viable before patenting it?

Not really.

Oh, you can't patent a perpetual motion machine, but you can patent an improvement to a process without showing that you can implement the whole process.

Suppose that I come up with an improvement in making steel in massive amounts. Do you really think that I shouldn't be allowed to patent it without building a large steel mill? (Two interesting cases are the lone "nut" and a university researcher.)

Zaak• 15 years ago

The problem with this approach is that the most offensive and problematic software patents are those which are trivial to implement.

cperciva7• 15 years ago

I think you need to produce the mechanical process you are patenting and at least show it is viable before patenting it?

That requirement was abolished (in the US, at least) in 1880. I've been told that the USPTO still asks for working models when people try to patent perpetual motion machines, but I don't know if this is true.

ajju• 15 years ago

I would love to see all software patents abolished.

I feel conflicted about having my name on several software patents - on account of working for (or co-founding) companies that needed defensive IP. Had I not been on the receiving end of a ridiculous software patent lawsuit while I was working at a startup, I would never have filed any patents when I started my own company. If the startup I worked for had not been acquired before they lost said lawsuit, it would have killed the company, destroying some amazing innovation and killing a couple of hundred jobs.

As things stand, even folks who oppose software patents don't really have an option but to file patents of their own unless they want to risk being sued into oblivion with no bargaining chips of their own.

ndefinite• 15 years ago

Stephan Kinsella makes a pretty compelling argument that's hard to refute: http://blog.mises.org/11717/against-intellectual-property-au...

Just because someone beat me to the patent office legally means I'm not permitted think up the same idea and use my computer to do the same. It's not even about copying, I'm legally limited in what I'm permitted to think up and do.

jtregunna• 15 years ago

I like the Canadian system of software patents. CIPO requires that software may only be patented in so far as the hardware it runs on is unique and patentable. I'm ok with those under the condition that the entities who hold the patent actually do something with it. Explicit timeframes should be in place to prevent these types of "business models" over long periods.

danssig2• 15 years ago

I see huge problems with the current system but in the current capitalistic world we live in there has to be a way to protect money/time spent on researching things. If the results of 10 years of research can be stolen as soon as they're announced no one is going to pay for research anymore.

coffeeaddicted6• 15 years ago

You can still be the first to bring a product to market and you have the people who will have the best knowledge because they developed it. Also don't underestimate the willingness of people to _want_ to research. And lets not forget that companies in Europe do not have software patents (yeah, some gray area still exists...) and still do research, so we already know the software world won't break down without software patents.

And while your arguments are still valid to a certain extend - it has to be evaluated against the costs of the patent system and the benefits you'll get from erasing the patent system. For example right now every startup-up is in danger of running into patent troubles unless they start pair-coding with a lawyer. People avoid looking at patents because they are scared of treble damages and people avoid coding optimal solutions trying to work around patents. Companies can block each other and managers and investors are in a constant state of risk that their coders will violate patents (mostly without even knowing it). Patents are no longer used to boost innovation, but they are used primarly as a weapon.

danssig2• 15 years ago

I completely agree that the current system is broken. I just disagree that we should abolish the system entirely. Some very smart people saw this need and I don't think they were wholly wrong.

Personally, I think the problem with patents is the are of the "who did it first" variety when they should only be of the "no one would have come up with this without me" kind.

That is, if your "idea" involves scribbling something obvious down and sending off for a patent as soon as possible (e.g. this new in-App purchase patent is a good example) then it shouldn't be patentable. For me, I would see something patentable in how Apple did the iPad. Everyone was trying things in the tablet space for years but it wasn't until the iPad that we all finally got it.

I would also make patents shorter and non-renewable. Renewable patents are just a monopoly on ideas.

kevinpet2• 15 years ago

The problem isn't whether the patent is in software, it's that that patent office grants patents on trivial things.

Should be patentable: RSA Should not be patentable: One click

The patent office needs to say "what problem does this claim to solve?" and then "if someone skilled in the art were faced with that problem, would the claimed invention really be novel and non-obvious".

RSA passes this test. Problem: secure encryption without prior secure key exchange. Solution: innovative math that makes that possible.

One click does not. Problem: if customers could avoid logging in multiple times, they'd buy more. Solution: set a cookie, using totally existing technology.

Some are still going to be borderline. Any useful rule is going to have questionable cases.

aneth• 15 years ago

I think it's highly unlikely the patent office would ever have the sophistication necessary to distinguish a truly new approach to an algorithm or architecture from a derivative one.

Additionally, there is so much depth and breadth in CS that innovation happens everywhere and is often hidden in the bowels of universities, garages, and offices. Even an apparently novel invention is unlikely to be invented only in one place, or to be invented first by the entity that files for a patent.

UserError• 15 years ago

Copyright and trademark law are sufficient to protect coders. Software patents are absurd. It's analogous in my mind to allowing Stephen King to patent a certain kind of plot twist.

mtantawy• 15 years ago

Software should be free, as in FREEDOM of speech!!

digiru• 15 years ago

I support patents, but think that for software the current system is seriously broken. Being able to patent things like in store app purchase, etc. IMHO is crazy.

notJim7• 15 years ago

I'm somewhat surprised that the vast majority of people here are against all software patents. I agree that many software patents are absurd, but I think of things like H.264 and MPEG where true innovation was required on the part of the people who developed it, and it seems clear to me that those people have a right to patent that work.

I'm curious though: what do people see as being the alternative?

GregBuchholz• 15 years ago

Since no one seems to have mentioned it yet: Against Intellectual Monopoly (http://levine.sscnet.ucla.edu/papers/anew.all.pdf)

petegrif11• 15 years ago

I have read the piece in question. I don't understand how it answers Notjim's question. What is the alternative?

bane4• 15 years ago

At risk of taking an unpopular devils-advocate position:

I think that the principle of patents is okay. Invest time and money developing an idea, with a guarantee of exclusivity on executing on that idea in the marketplace for a period of time. It encourages a level of risk taking for "getting there first".

Software patents aren't any different in many respects because somebody has to go through the time and effort to actually come up with the idea.

The problem that software patents face is that, while many of the ideas are new and innovative to non-software people, software people tend to groan about seemingly obvious amalgamation of common software techniques into another idea. But really, most patents (non-software) are the same:

Cooking an egg with an electric heater http://www.google.com/patents?id=RgcEAAAAEBAJ&printsec=a...

Glasses for a chicken http://www.google.com/patents?id=M5BGAAAAEBAJ&printsec=a...

Making water hot with the sun http://www.google.com/patents?id=YBwrAAAAEBAJ&printsec=a...

Resoling a shoe http://www.google.com/patents?id=895CAAAAEBAJ&printsec=a...

Keeping paper dry http://www.google.com/patents?id=7IBqAAAAEBAJ&printsec=a...

That was 60 seconds of searching the patent database of common sense ideas. Clearly obviousness is not much of a threshold in patents, software or otherwise.

Perhaps a better way to think of software patents is not "obvious ideas" but "soon to be obvious ideas". In my experience, most software patents become blindingly obvious after the fact, but if they were so obvious beforehand, somebody would have:

a) implemented it into a working system (prior art)

b) patented it themselves first

Our principle problem is that the world of software moves breathtakingly fast, and keeping soon-to-be-obvious ideas locked away for a long time can seem ridiculous. But make no mistake, even implementing some obvious ideas can be the investment of millions of dollars in R&D.

For example, a system integrator I know of had an IR&D program that spent $130 million dollars just in the R&D phase for what amounts to off-the-shelf software, installed on a few VMs, on rackmounted servers, in a large plastic shippable box with a few perl scripts and cron jobs hacked together to shuttle data between the COTS software and an Oracle database running in one of the VMs. Obvious? Perhaps. But nobody had gone through the trouble to actually do it, and spending that kind of overhead was a significant risk.

Should they own this idea for the next decade or so? Probably not, but how about the next 12-24 months? At least long enough so that they get a head start against competitors who didn't get there first.

I do think the patent system is need of serious reform w/r to getting rid of patents with prior art. Fighting a bad patent can be more expensive than getting one in the first place. And software patents are too frequently granted in cases where there is obvious prior art, common algorithms for example.

If we really want to fight software patents of obvious ideas, or permutations of obvious ideas, perhaps somebody should write a tool that simply combine every obvious idea in software into some greater system, then documents it all thus creating prior art that stops all of these so called bad patents...and then patent the "prior art permuter". In other words, if the ideas are obvious, a piece of software that does this should be buildable. I call this the "obviousness of software patents theorem".

maratd• 15 years ago

Patents are an artificial system forced upon us with the hope that they accelerate innovation. Just as you said, the hope there is that it encourages someone to take the risk of making something new with the hope of massive exclusive rewards.

The problem with that hope is that it ignores how innovation happens. There is no reclusive mad scientist working in some dank basement on the next-best-great-thing. That's childish.

Innovation happens through collaboration. You take someone else's work and you build upon it. Bit by bit, people build the next-best-thing.

The current patent system tries to take this into account by creating a lifespan of 20 years or so. But for those 20 years ... you are stifling the potential innovation that can happen by incorporating that new-best-thing into the next-best-thing.

This is even worse for software! A new paradigm arises (Internet, AJAX, Geolocation, etc.), a new set of algorithms become necessary to make things work. These paradigm shifts take years, not decades. As a consequence, innovation is limited to those who created the initial algorithms, since they're the only ones who can build on the most basic work.

Imagine Google created the algorithm/API for getting geolocation from the browser and built it into Chrome, then patented it. Nobody else would be able to do it. Obvious invention you say? Not as obvious as Amazon's one-click-to-buy button. The worst part in this example is simply that while Google may have invented it, there is an almost certain chance that Mozilla/Apple/Microsoft would have been able to make it better within weeks. We are missing out on that kind of innovation for patented software.

bane4• 15 years ago

The problem with that hope is that it ignores how innovation happens. There is no reclusive mad scientist working in some dank basement on the next-best-great-thing. That's childish. Innovation happens through collaboration. You take someone else's work and you build upon it. Bit by bit, people build the next-best-thing.

That's a very interesting point(s). Again, arguing from a devil's advocate POV. People who are generally against software patents commonly make the claim that it stifles the innovation of the single person, sitting in the their dank basement working on the next-best-great-thing (see other comments in this topic for examples, including a rather brilliant quote by Carmack).

In terms of collaboration, sure, patentable ideas/software often exist due to collaborative team efforts, just like patentable physical widgets like industrial egg fryers. But that team is generally paid for by one company and the patent is then assigned to that company.

There really appears to be a few major issues that I see with the present system:

1) Patents are transferable

2) Patents aren't researched enough against prior art before reward

3) Patent length is too long

4) Fighting bad patents is expensive and overly hard, even when armed with tons of prior art

5) Patents don't necessarily need an extant physical or implemented example to be granted.

6) Patents can be granted without the intention of implementation.

I think for real patent reform to work, these 6 points need to be addressed to keep the concept of patents (risk in exchange for exclusivity) a workable model:

1) Patents shouldn't be transferable -- this eliminates patent trolls

2) The Patent Office needs to be properly funded and given enough time to properly research patents before grant.

3) Patents (like copyright) needs to be shorter and dependent on the effort required to create the patent in the first place. For example, software patents should probably only survive 12-18 months. That gives the owner a risk/exclusivity that's long enough and if the idea proves valuable, opens it up for others to use (and improve the economy as a whole) within a reasonable time. In other words, this recognizes that risk doesn't just end at the grant of a patent. Actually doing something with the patent is important.

4) Appealing bad patents should be relatively simple and swift.

5) You should actually be able to demonstrate something that's patented.

6) If you don't use the patent in a business use-case, you lose it. A bit like Trademark.

Just some random ideas.

axylone• 15 years ago

What if a startup spends ~2 years coming up with an idea, launches it, and gets noticed by a Big Company before the site gets big. What's to stop the Big Company from just implementing the idea themselves in a slightly different form? Would the Big Company still buy the startup/how will the startup be compensated for its work?

dhume2• 15 years ago

if they were so obvious beforehand, somebody would have:

a) implemented it into a working system (prior art)

b) patented it themselves first

It seems to be fairly common that somebody already did (a) but chose to forgo (b).

spent $130 million dollars just in the R&D phase for what amounts to…. Obvious? Perhaps. But nobody had gone through the trouble to actually do it, and spending that kind of overhead was a significant risk.

How much of that was it actually necessary to spend just to come up with the concept? Evaluation of the available COTS components, writing the perl scripts and cron jobs, management overhead, etc. are costs a competitor would have to incur as well, which makes them not part of the cost a patent is meant to compensate for. The fact that nobody had done it before does not necessarily mean nobody was clever enough -- just that nobody who was clever enough had had the problem this product was meant to solve, and being a solution to a novel problem does not make it patentably non-obvious.

In other words, if the ideas are obvious, a piece of software that does this should be buildable.

I don't think a computer program is likely to cover everything that would count as obvious.

"A person of ordinary skill is also a person of ordinary creativity, not an automaton." - SCOTUS opinion on KSR v. Teleflex

nitrogen6• 15 years ago

Should they own this idea for the next decade or so? Probably not, but how about the next 12-24 months? At least long enough so that they get a head start against competitors who didn't get there first.

This is probably about as long as it would take for a competitor to write the necessary code and do the necessary testing anyway, so it seems that the reward of being first to market with good code is enough compensation for the risk involved.

If we really want to fight software patents of obvious ideas, or permutations of obvious ideas, perhaps somebody should write a tool that simply combine every obvious idea in software into some greater system, then documents it all thus creating prior art that stops all of these so called bad patents...and then patent the "prior art permuter". In other words, if the ideas are obvious, a piece of software that does this should be buildable. I call this the "obviousness of software patents theorem".

I was thinking about a similar system, wherein hardware and software components are treated like building blocks. You throw some (or all) known blocks into a bag, and randomly draw n blocks and come up with a way they can be used together. You then start applying random domains to the same building blocks (e.g. security, gaming, manufacturing, automobiles) to prove that moving an existing invention to a new domain should be obvious.

wildmXranat• 15 years ago

My suggestion is to cut the period to 12 months and invalidate patents that have been issued so far. I have absolutely no hope there will be a cleanup of the patent house. There are many reasons why regulators fail to match the industry they are regulating in spend and effort. Same goes for finance, medical, software ...

mikerhoads• 15 years ago

I support abolishing all patents, not just software.

patio11• 15 years ago

This is one of those issues that I feel is more a member of tribal affiliation than anything substantive. It's like flag burning for us Republicans: if I were to rank order my political objectives, "prevent flag burning" would be somewhere in the x0,000s, but the tribe cares about this a lot for philosophical reasons (which I'm broadly speaking on board with) and as a result uses it as a signaling mechanism.

Software patents strikes me as signaling for geeks, or the techno-libertarian-esque streak that is pretty common in the community at any rate. Is it an important issue? Well, yeah, I'd love to see it addressed. Someday. Maybe after flag burning.

There are many, many issues used for signaling that I feel about similarly.

AlexC04• 15 years ago

Your discussion of "Tribe Signalling" is interesting. It reminds me of all the stuff that Desmond Morris was talking about in "the Human Animal" (and more recently http://www.exactitudes.com/). By wearing certain clothes you're sending a signal to others about political POV, likes dislikes, interests etc... It helps you find other like minded individuals.

Maybe you're right that being against software patents is generally a tribal signal that says "I'm a hacker" or "computer-type".

When I logged into the comment thread, I was thinking the exact same sort of thing. "Well Duh"

The Hacker News audience is somewhere near 100% the exact demographic that you'd expect to be generally against software patents.

It's like logging on to a Twilight fan-board and asking "Are vampires Awesome?"

nitrogen6• 15 years ago

Predictability of hackers' opposition to software patents doesn't render that opposition inconsequential or irrelevant (unlike a vampire fan's opinion of vampires).

chc• 15 years ago

Is that because you think the problem crops up so rarely, or because you think the problem is very minor in general? Do you think you would feel differently if you were sued for gazillions of dollars for violating a patent on, say, using computers to create games for use in schools?

3pt14159• 15 years ago

Until someone sues you for patent infringement. You have enough opensource stuff out there they wouldn't even need to look hard for it.

guelo• 15 years ago

This is not a "signaling" issue, it is hugely important. One of the few industries that has been generating tons of innovation and jobs over the last 20 years is under constant attack from stupid patents, but you think that is less important than banning flag burning?

pjscott• 15 years ago

Agreed; I think that bit was more about tribal counter-signaling signaling than anything substantive.

jxcole3• 15 years ago

Couldn't disagree more. Sure, as a society of wanna-be/successful code entrepreneurs, we are more likely to be affected by this issue. But that doesn't mean the issue isn't substantive. It is more accurate to say that the majority of people outside of our "tribe" are simply unaware of patents and the type of burden it places on innovative thinking. Your argument essentially points to software patents being a non-issue. If that were true, we wouldn't be seeing well written websites taken down or extorted through the patent system.

I'm not just flag burning here. Privacy might be a better issue to put into the "tribal affiliation" buckets as I have heard of few real instances where privacy actually harmed a real person (I'm talking about stuff like google tracking your searches). As a developer, there is a real chance you will get sued over patents, and if you do there will be real damage done.

sunahsuh5• 15 years ago

I can think of at least two pragmatic, immediate reasons the patent system needs to be addressed: -The HTML5 video codec wars and the rise of patent pool companies like the MPEG-LA (which, besides licensing H.264, is reportedly forming a patent license pool for VP8 entirely independently from Google) -Relatedly, the patent pools forming around next-gen communication protocols like LTE, a 3G successor

The communications pools in particular are worrisome -- the licensors in the pools used to be manufacturers who happened to hold patents and used these pools to encourage widespread adoption but the increasing involvement of holding companies and pool packagers is turning licensing into a primary business, which is overall bad news.

uriel2• 15 years ago

The economic harm of the uncertainty created by the patent system is way greater than the harm done by the cases that make it into the news.

And this harm is ignored by almost everyone (at least somebody else in this thread pointed it out) including "geeks" the focus is on specific examples of patents being abused).

rednum• 15 years ago

I don't think that software patents are 'controversial' among HN community - I remember reading comments to some threads about patents and they were pretty much like the results of this poll - ie. the vast majority of people expressed opinion that software patents should be abolished and virtually noone supported current system. (Also this was before post karma was hidden, which made attitudes even clearer.)

Edit: my point is that I am a bit surprised by a relatively long time HN member asking question about issue that seems pretty much to be settled down in this community.

dgallagher• 15 years ago

I think, if continued to be allowed, software patents should expire 2-3 years after being issued. We no longer live in a time where it takes decades to invent new software technologies, requiring a patent to protect the inventor for years/decades to recover their investment costs. Software and technology moves so quickly that long-term patents stifle innovation and creativity.

aantthony• 15 years ago

All patents abolished. Ideas are worthless once executed and it's ludicrous to own even someone else's idea even before it exists, if it so happens to be covered by your patent.

EDIT: IMHO I think patents can be good, but in some cases (especially software) it is too hard to draw a line between what's patentable and what's not. It is also highly subjective, market dependent, and far reaching in it's implications on preventing innovation if not done right.

efnx• 15 years ago

Why aren't more software patterns patented? For example, the Observer pattern, Model View Controller, Active Record, etc.? These are patterns that pop up naturally while coding that seem on par with the 'in app purchase' pattern (if I can call it that). Why haven't the trolls patented more of our building blocks?

uriel2• 15 years ago

They are all patented, you just have not seen the relevant patents (or if you had seen them you would not be able to understand them).

There was a story not long ago about how somebody had patented doubly linked lists (or maybe how to traverse a double linked list, I can't remember the details, but it was just as obvious).

jeffool• 15 years ago

Traditional patents are like creating new tools for a carpenter to use.

Software patents are when someone picks up a screwdriver and says "I'm going to use this to pry the lid off the paint can. No one else can do that now, ever again."

bediger2• 15 years ago

The current system, and all of the rather draconian suggestions for change, ignore the issue of independent invention. The only study done on this so far (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270160) suggests that almost all infringement is due to independent invention.

Independent invention should negate infringement issues. In fact, in some cases (invention from an even less extensive background) should cause patent re-assignment.

The current system (and all changes proposed so far) also fail to address the US constitutional mandate of causing progress. The current system doesn't.

haberman• 15 years ago

I hate software patents, and would personally love to see them abolished.

I have a question though: how important are patents to startups? Aren't software patents one of the tangible assets they point to to justify their valuation?

generators• 15 years ago

(1) Patents should be analyzed for level of difficulty in coming up with solution. If I had a website like amazon, more than 50% chances that I would have come up with single click idea. But since I didn't had problem, I could not have solution. so such patent should be allow only "acknowledge" status <- that means, a software that is using such patent must "acknowledge" the original creator somewhere , but it can use the patent freely. (2) if patent is used, it is liable for max 5000$ ( for e.g. ) charge. or (3) 500 Million $ charge. It all depend and subjective. current system is go and no go. patents should analyze for level of ingenuity too.

mxvanzant• 15 years ago

Patents are not needed to promote innovation -- their intended benefit for the greater good. Innovation will happen anyway. Instead, they are a drag on innovation and also a tool for those with larger pockets to extort from those who cannot afford to fight back. Get rid of them. We will all be better off!

mindcrime• 15 years ago

I support complete abolishment of the entire patent system, not just software patents. I believe that - in practice - patents do more to inhibit innovation than to encourage it, and I also find the idea that the government will use force to prevent you from using an idea - that you may have developed independently - to be immoral.

jeffg1• 15 years ago

No. Abolish all software patents, limit all other forms and liberate knowledge towards the evolution of humanity.

mooneater• 15 years ago

Preaching to the choir.

amikula• 15 years ago

There's one simple phrase I like to keep in mind when thinking about software patents. Its mere existence demonstrates that patents are not serving their intended purpose: "accidental patent infringement"

dustbyrn• 15 years ago

We who invent things, we who solve problems in new ways, don't do so because we can get a patent. We solve the problem because when you put a problem in front of us, we can't stop ourselves from solving it. It haunts us. We dream about it. And the only way to make it go away is to solve it. That's the nature of Engineers, the nature of Inventors. Engineers don't think about patents when presented with a problem, they think about solutions. Lawyers think about patents and they don't invent anything.

You might have a better idea than the last guy, but chances are your idea overlaps with his a little. If your new idea has some similarities with an exiting patented idea, implementing it could be risky. If engineers did a patent search for every idea they had, they would find some overlap with existing patents every single time. Nothing would ever get created. The true evil of patents is that they actually stifle, rather than promote, innovation. The effect of patents is opposite their intent.

rglover• 15 years ago

I'm surprised things like business process patents aren't more widely supported. Especially in the software industry, it's pretty obvious that most applications are the result of somebody developing (or at least, think their developing) a better method for accomplishing an existing task. Correct me if I'm wrong, but don't business process patents enable similar ideas organized differently to equally receive patents? It's truly difficult to lean either way (however, I did vote for the abolishment of all patents). If you're a successful business who is challenged for your innovation, the only protection you really have is a patent. If anything, I feel like those in the software industry should form some sort of agreement and petition the government to enact new rules specifically for this industry. As technology evolves, I shudder at the thought of how the archaic system we have now will all but crumble. There should be a lot more future-proofing taking place.

dfox• 15 years ago

My take on this is: Abolish all patents (not only software).

Patent system simply does not serve it's purpose (which ws to motivate inventors to publish they ideas, so they could be later reused) as patents are intentionally written as to be unreadable and uninformative. And this happens not only in "software" or "business method" ones.

6ren• 15 years ago

Imagine a Book of Code, like Knuth's Art of Programming, but easier to search and understand.

If you come up with something new, and write it up clearly enough, it can go into The Book. You get royalties for X number of years (maybe 5? idk). Everyone uses this as a resource. Perhaps there's ARIA-like licensing (where a cafe pays a standard rate to play any music they like), for usages based on how many people use it (so a small software shop pays a small annual fee, and google pays huge fees) - or more likely the owner sets the price. Like an app-store for algorithms. After X years, it becomes free.

The patent system is nothing like this. I'm not sure it's even technically possible, though certainly textbooks get written and some of them are excellent (perhaps with financial motivation, you could employ people like David Flanagan writing up algorithms).

Having such a Book would being programming much closer to an engineering discipline. It would also make contributing to the Book a badge of professional honour, and not disparaged as patents are today. Really, anyone who invents a new and useful approach should be lauded - but the patent system has strayed far from this.

plexav• 15 years ago

How many of the respondents have a deep understanding of patent law, and it's application to algorithms and more specifically computer software? Rather than provide substantive input, most of the responses to this query illustrate 1) the shallow nature of most people's understanding of the issues, and 2) a corresponding willingness to highlight such a lack of understanding. Taken from the perspective of a process, one can almost always describe software as a process that effects some change on a physical object, or objects. For example, exposure to novel features (the one's you might think to patent) change the neural functioning of a user which takes it out of the realm of "software" and into that of a physical process. You're feeling sleepy....very sleepy...

chrisbennet2• 15 years ago

I suspect most of us are software developers and we are well aware that the patent process does nothing for us but punish us for innovating.

Those who profit from the current system will try to justify it by saying that it protects us (the developers).

Poll 100 developers and I bet you won't find a single one that has benefitted from patent protection, at least not directly.

abrahamsen3• 15 years ago

Please everybody, don't go reddit with the comment voting.

It is clear what the majority opinion here is, but I see well formulated comments supporting the minority opinion being voted down. If you think their arguments are wrong, don't vote them down. Instead, vote up the comments that explains why they are wrong.

viggity• 15 years ago

I support software patents, but the USPTO needs to make some drastic changes in what is considered "novel". Way, way, way too much of what is patented is, pardon the pun, patently obvious.

fedxc• 15 years ago

No new software patents

MetaMan• 15 years ago

My understanding is that, at least in the UK, patents are a contract between the inventor and the state. The state grants you a monopoly and in exchange you tell the state how it works. The state has the right to seize your invention (after offering you some compensation). My first patent was held up by the UK government for nearly 2 years whilst they worked out if they wanted it !

IMO the fundamental problem with software patents is that the bar for a "patentable invention" is far too low.

Abolishing software patents isn't feasible for me. What about the firmware embedded in many current hardware devices. Where would you draw the line ?

If you abolish patents this really would disadvantage start-ups as large corporations could easily copy any good invention before the start-up has reached critical mass.

Writersglen• 15 years ago

I owned and managed a small software development company for nearly 25 years. We produced many creative educational and consumer products for large publishers. We had neither time nor money to research every innovative routine we developed for possible infringement. Nor did we have money to apply for patents or defend them if they were granted.

As we've seen, software patents stifle creativity and innovation; reward those with money rather than creative energy and ideas.

wh-uws• 15 years ago

Yes but I think they should have an active use clause.

If you are not actively using what is patented the patent should expire much faster.

On the order of months.

This would discourage people from patenting things they only wish to use to sue others with or purchasing such.

Also if you just wanted to attack trolls directly the active use clause would only kick in after purchase.

JesseAldridge• 15 years ago

I would vote for: "Don't understand the issue well enough to judge."

dsl• 15 years ago

Missing option: I keep MY software patents, abolish the rest.

Every time I've argued this with software engineers it turns out this is really what they think.

chrisbennet2• 15 years ago

(I'm for abolishing all software patents.) The justification for patent protection is that is required to encourage innovation in the arts or some such. In reality, innovation in software is happening in spite of patents. Consequently, there is no justification for for granting this harmful monopoly.

Trey-Jackson• 15 years ago

While I have a strong opinion on the topic, what do these polls accomplish? It just seems like navel-gazing at best.

ericn2• 15 years ago

I believe that we should issue something much simpler than patents: file a very brief description of your invention which is stamped by a trusted agency. It is only evaluated in the case of conflict. That is, if you think I am infringing, you bring it to court, present your originality paper (which dates your idea) and then you have to prove that it is not obvious and that it is useful.

This procedure puts the burden on the claimant, not on some random guy who happens to figure out an idea. It also does not require much work until there is an actual conflict.

pradocchia• 15 years ago

Germany had a flourishing chemical industry in the 19th century. You couldn't patent chemical compounds, being things of god and nature, but you could patent the process. This created the perfect environment for competition and innovation. England, by contrast, did allow patents on chemical compounds, and by contrast their chemical industry was weak.

Switzerland continued in the German tradition until recent years, and had a flourishing pharmaceutical industry, despite the lack of patents.

More: http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...

ericn2• 15 years ago

There is another problem with software patents that is usually not talked about: they don't present how to build it. Most patents (outside of software patents) present enough information for a competent person to build the device (or whatever) themselves. The idea is that your idea is protected for the duration of the patent, then when it's over everyone else gets it for free. Software patents usually don't do this. I cannot implement, for example, Amazon's "Tabbed browsing" from the description in the patent. I still have to do the hard work myself.

algoshift• 15 years ago

The patent office should charge some amount with every software patent application to be used for the determination of obviousness or prior art. Then it should post the problems on sites such as this one or StackOverflow as a request for comments. In addition to that, it should post the problem on a rent-a-coder type site. If any of these produced a result reasonably close to what is being claimed the application is rejected.

Simple and cost-effective. This would be far more efficient than having the uninformed at the patent office make decision from position of ignorance.

Sudarshan• 15 years ago

I would prefer a world without software patents. If that is not possible, * At least the courts should charge exponentially high prices for each extra claim you want to make beyond a limit. * All publicly listed companies will have a cap on total number of patents they can apply for (probably proportional to R&D spending) after which the price increases exponentially. * Any person or institution found patent trolling should find further litigation exponentially expensive. All these and more measures won't solve the problem... but at least increases the threshold for trolling behaviour...

Sakes• 15 years ago

Maybe we just need to change the patent system itself.

I believe people game the patent system by trying to be as general as possible when creating patents.

I believe this stifles progress, I believe stifling progress is wrong, I believe stifling progress hurts us as a country in a time when we can not afford it.

What if a patent's definition changed over it's life time based upon what the company is actually using it for?

I think this would solve a couple problems.

1) It would force the company to actively invest in "idea's" that they own if they are actually makers and not scammers. (Yeah!!, progress continues)

2) It would open up the patent system to redefining the shelf life of patents.

We could call this new system "Shit or get off the pot!" patents.

veyron• 15 years ago

Is there any info regarding the age of most of these patents? Take for example the Lodsys patent on in-app purchases. I remember reading that the patent in question was filed in 2003, as part of a chain of patents starting in the early 1990s.

I ask because I suspect most of these patents were approved long before these ideas were obvious. Note: I dont necessarily support software patents.

camiller• 15 years ago

Abolish all, software should be covered under copyright rather than patent as the expression of an idea.

daimyoyo• 15 years ago

It clear that the overwhelming majority of people here think software shouldn't be patentable. The next question is what to do about it? How can we get software patents out of patent law?

petegrif11• 15 years ago

I think the problem here stems from the fact that people talk as if "software" were one homogenous entity. But as we all know - it isn't. Some software is trivial and some isn't. Some represents a trifling investment and some a huge investment of time and dollars. Some is very easy to copy and some much harder. It is only when we start thinking about such categories that we can make real progress thinking about where and when patents may be appropriate when they are not.

Let's stipulate that the USPTO is not perfect. They do make mistakes. Patents are issued that should not be. But the existence of such patents should not be taken to be an inditement of the entire system. Few systems are perfect, but recognizing this let's further stipulate that advocating tossing the baby out with the bath water on this basis alone is impulsive.

The difficulty is in drawing a line - defining innovations which deserve protection and those which don't.

Let's try a thought experiment. Imagine you have an idea which you believe to be novel. You research the field and it does indeed look novel. You look into the problem. It's non-trivial. It is going to take man-years of work to put together an implementation. But there's a problem. The technology you have to use to implement it is such that it is extremely easy to copy your work. You don't want to have to patent your work. You don't want the time and expense. Perhaps you have principled reasons why you don't want to patent it? But let's consider your options. If you don't get patent protection you are left with (a) trade secret (b) copyright. We already know that a trade secret won't work because your work will be in a form that is easily copied. Does copyright protect you? No. Why not? Because copyright only protects the expression of the work, not the underlying ideas, no matter how novel and valuable they may be. It is easy for a determined competitor to take your work and re-engineer it such that copyright is worthless.

So what are you going to do? That depends on who you are. If you are a huge company and you still don't want to patent it you can go ahead and develop and publish your progress so that it is in the public domain and a competitor can't patent in the area. You are relying on your market strength to carry the day. But what if you are a small company? Are you prepared to risk everything with no protection? It is risky enough anyway starting a company, as we are constantly reminded, but if you can so easily be ripped off, isn't it wise to think twice?

It's your decision. You may have philosophical objections to patents so strong that you just don't proceed. That is your right. But if someone else decides to proceed it seems to me that it is perfectly rational for him/her to seek patent protection. It would be crazy not to. There is plenty of recent precedent of large companies ripping off small innovators even when they have patent protection!

IMHO to evaluate 'software patents' as a class is dangerous. Our industry is too big and the use cases are too various for such generalizations to be helpful. It is only by considering categories of innovation that we can hope to make progress on patent reform is such reform is needed. A knee jerk 'all software patents are the work of satan and should be trashed' doesn't help any more than a strident declaration of IP rights by well financed patent trolls.

olalonde• 15 years ago

> If you don't get patent protection you are left with (a) trade secret (b) copyright.

You forgot "(c) First-mover advantage"[1], which is historically very effective at rewarding innovators.

Without our current patent system, I'm fairly confident innovators would come up with clever ways of capitalizing on their ideas despite those ideas being easy to duplicate. Of course, it wouldn't be a perfect system either, but in my opinion a much better one.

PS: Up voted you as I believe you are making and interesting point which is worth debating. I wish people would stop down voting comments they disagree with.

[1] http://en.wikipedia.org/wiki/First-mover_advantage

petegrif11• 15 years ago

Thanks for the vote - it was indeed an attempt to make a serious point.

I didn't actually forget 'first mover advantage' I simply didn't list it there because it isn't considered a form of IP protection. The problem I think with your position is that there is a historical record of innovative software companies being seriously or fatally damaged by unfair competition form big companies, some of whom are quite happy to copy your work despite the patent then challenge you to sue them with their vast legal resources. I think it is very hard to justify a general statement to justify your confidence that 'innovators would come up with clever ways of capitalizing...' And when you say it wouldn't be a perfect system but it would be a better one, the question arises - better for who? Not better for the small innovators who would be left with nothing, surely?

I am not suggesting this is easy, but I don't think a one sided abolition frenzy is the answer. IMHO this position is often motivated by (a) an ideology of freedom on the internet which whilst generally a good thing runs into problems in some cases in this context (b) a real ignorance about how the patent system actually works as opposed to caricatures and edge cases.

jxcole3• 15 years ago

In general, software is EITHER trivial to copy OR the problem is non-trivial. I would be surprised to hear of any patents covering something that falls into both categories.

petegrif11• 15 years ago

I'm sorry but I truly don't understand the relevance to my argument.

msg• 15 years ago

I buy the argument that software is math and thus unpatentable. My experience has also been that most software patents (and especially always the most notorious) are trivial applications of an algorithm to some subject area.

But here's a more pragmatic argument.

The current patent system exists to provide financial incentive to bring the number of inventors in an untouched area from 0 to 1.

It is completely broken wherever it brings the number of innovators in an emerging area from 50 to 1.

The first case is probably true in any industry with high startup costs and unproven technology. The second case is true of software and services on the still young, still evolving internet, with low technological barriers to entry and fertile soil as far as the eyes can see.

If we want to see what innovators are really capable of, we'll get rid of software patents and watch them duke it out in the market.

lhnz• 15 years ago

If somebody literally copy-pasted my code and released it as their own, then I'd be annoyed.

But I take no issue with somebody reimplementing ideas. That's progress.

lukifer• 15 years ago

Intellectual property is a curious intersection of capitalism and socialism: a free market which would barely exist without the creation of artificial legal constructs.

Bottom line: patents exist to foster innovation both for creators and users of ideas. Software patents do not accomplish this goal, and they are beyond redemption.

chmike• 15 years ago

What is ment by software pattent ? Patenting a method used in software ?

People hear about patent trials but not when startups get their business model copied or stolen by bigger companies. They don't make any noise when they are smashed like moskitos. In one story I've hear of first hand witness from the bad guy side was that they didn't simply trick them into explaining their secret sauce recepie, they also phone the bank and their investors to stop fnancing them. They where big enough to do that. If they had pattented their method for mobile phone geolocalsation in 1999 in absence of gps at the time, things would have probbly run differently.

Patent troll is bad, but when it is for the initial idea of it, that is protecting its inventor during the process of creating the business around it, then I think it's fair. Maybe 20 yeas is s bit long consdeing computing technology evolution.

clord• 15 years ago

My position on the matter is that patenting software or other mathematics should require full disclosure of the source for the system. If not expressible in a full-blown language, it's not patentable (e.g., one click).

Let's shorten the length for software patents. For the duration that it is valid, the patent office simply acts as a custodian of the code, ensuring that it works and certifying that it is novel. The patent office should maintain (or contract a company like GitHub to maintain) the repository of pending public domain source.

And once the patent expires, the source is released into the public domain, still under source control.

We can also strengthen prior art rejection of bad patents.

Finally, give enforcement more teeth, but narrow the scope to match more closely what is checked into the repository.

A system like this is more in the spirit of what a patent is: a temporary monopoly with a public-domain disclosure of the idea at the end of term.

seanp2k4• 15 years ago

http://www.google.com/patents?q=online+payment&btnG=Sear... Pretty much all of these are idiotic.

Software patents are stupid because you're trying to patent A WAY OF DOING SOMETHING and not A PRODUCT, even if said product is built from ways of doing something.

Example: I patent "A method for storing data on physical storage using blocks" and sue everyone. There are people who try to patent RAM and storage: http://www.google.com/patents?q=a+method+for+storing+data...

I'd wager that most of those are invalid patents / should be abolished.

waqf• 15 years ago

I think it's just a question of the bar being too low (though being so much so as to make patents that are found acceptable qualitatively unlike patents that I consider acceptable).

For example, I think the LZW patent was deservedly admissible (though it rightfully did not prevent equally-good and patent-unencumbered algorithms from being developed).

marquis• 15 years ago

New Zealand banned software patents a couple of years ago I believe, and from what I see from friends there they have have a thriving software industry.

sunahsuh5• 15 years ago

Just wanted to plug the FSF's documentary "Patent Absurdity: how software patents broke the system" -- actually watched it this past Friday. It's only half an hour long:

http://patentabsurdity.com/

petegrif11• 15 years ago

http://www.betanews.com/joewilco... I would recommend this piece for those who wish to see the problems that a small innovative company can have even with patent protection. Without such protection they would have been left with nothing - copied wilfully by Microsoft and competitively dominated, all their investments down the rain. At least this way they prevailed in the courts and will have some recompense for the damage done to their innovative business.

JulianMorrison• 15 years ago

No patents would suck a few ways - new ideas might well end up being locked in obfuscated machine code or sealed in ROM until someone puts in the effort of disassembling them and teasing out the algorithm.

But, they still suck less than the alternative, a world in which programmers are prevented from doing the right thing, innovation and start-ups require a willingness to dare a legal minefield blindfolded, big companies have unanswerable bludgeons against little companies, and unproductive trolls get to charge productive people for using ideas they couldn't comprehend, let alone create or use.

Tear it down. Replace it with nothing.

RexRollman• 15 years ago

I feel that software patents should be abolished, but barring that, extremely shortened. I would say three to five years; a lifetime in the world of software.

ohyes• 15 years ago

Only when I own the patents!

FrojoS2• 15 years ago

I find the results surprising. More than 500 points for software patents in some form? On HN? I'm not saying, that arguments for software patents are all wrong. And I'm excited about the discussion.

But again, I'm surprised...

nwmt• 15 years ago

It's worth noting that at the moment nearly 2400 people flat out want all software patents abolished.

Plus, lumping the other options in together isn't necessarily fair. Revoking existing software patents would have some pretty severe effects on legitimate companies and their shareholders. And the "other changes" is extremely vague - one could assume that other changes includes placing the onus on the company applying for the patent to prove its uniqueness, which would increase the cost to receive a patent and decrease the likelihood of abuse.

All in all, 19 votes at the moment support the current system. Less than 1%. And to be fair, roughly 15% believe better software patents would be OK.

FrojoS2• 15 years ago

True. But I still can't help being surprised about the results. Maybe, thats because here in Germany, suggesting software patents has almost become non political correct. At least, thats my perception.

blackhole• 15 years ago

An effective business model does not require patents, because by the time someone copies your idea well enough to be a threat, you've already come up with a better way to do it. Trying to make a business out of inventing one thing has never worked - you stay in business by inventing things faster than your competitors.

johngalt• 15 years ago

The closer you get to the ideal situation with software IP law the closer you get to copyright style and the further away you get from patents. Software patents could work. It would just mean applying them more sparingly. You can patent the specific crank you've created, but not the whole idea of rotation.

rdl• 15 years ago

I am against patents in general, and especially against software patents. I wasted a lot of time from ~1990 to ~2000 with RSA alternatives, and then there was the whole Chaum and Brands patent mess which was another bottleneck for anonymous cryptographic token electronic cash (think bitcoin but anonymous, and even better).

I am really kind of sad that I'll be getting some for my new company; it's a waste of $100k, time, etc., but it is the prudent thing to do.

zmmmmm• 15 years ago

It is interesting that this poll does not mention the problem that I most care about: that the bar for "obviousness" seems to be way too low for software patents. It is so low that I actually worry in my every day work that I will accidentally violate patents simply by solving simple every day problems in obvious ways.

I would support some kind of software patents for truly novel inventions. However so many software patents that I see are almost insultingly obvious, even when you place them in context of their time.

So, yes to software patents if:

1. Shorter time period - 20 years was based on an industrial era time frame for physical manufacture and distribution

2. Much higher threshold for obviousness. Companies should have to declare problems they are applying for patents for publicly and fund a bounty for members of the public or any challenging organization to win by submitting solutions. Only when third parties fail to suggest the methods in the claims should something become patentable.

blantonl3• 15 years ago

Shouldn't someone ask, "what defines a software patent?"

The author of this post should really clarify this since the term "software patent" could be easily be extrapolated by any polster here, thus polluting the end result.

markchristian• 15 years ago

I support it given the following sniff test: if a skilled software engineer could use an implementation of the idea the same way an ordinary would and then immediately walk back to his/her computer and implement it, it is not worthy of a patent.

otaviogood• 15 years ago

I got a patent for some of the stuff that went into Word Lens (augmented reality translator). I think software patents are awful, but I feel like I need to play the game that's currently in place. A significant part of our company's startup costs and time went into getting that patent. If I could, I'd pay all that and more to eliminate software patents completely - including my own. Software patents kill innovation.

domador• 15 years ago

I utterly detest software patents and the inaccurate view of innovation they embody. In theory, software patents should encourage innovation. In practice, it looks like they hinder it, and instead enable a legalized form of extortion and parasitism.

I'm glad that software is unpatentable here in Costa Rica (as far as I know). I hope we never get infected by this detestable legal concept. As someone who develops software for international markets, though, I'm afraid I'm not immune to this issue, even if software patents are locally unenforceable in my case. I hope developers in other countries (the U.S. in particular) will care enough about this issue to organize and seek reform. Please, do what it takes to convince or hire legislators to remove or drastically reform this misguided legal concept!

nickpinkston• 15 years ago

Why is there no: "No software, or other patents, point" button - I'd click that for sure. With thousands of votes - I'd love to see the make-up of the vast majority of this question.

mike_esspe• 15 years ago

I wonder, if results with copyright poll will be completely different? The poll: http://news.ycombinator.com/item?id=2555088

dillon• 15 years ago

I believe that we could easily be years ahead of where we are now if everything was open source, or maybe not. I think it's dumb how we have to reinvent the wheel for something that currently exists, or maybe it's a good thing.

_mrc• 15 years ago

If you're thinking of patenting your software, think about how useful it would be if you had to license absolutely everything you take for granted - algorithms, data structures, compiler optimisations, I/O mechanisms.

Patents were intended to encourage and reward creativity. When they're being used to stifle it, it's time to abolish them.

andrewpi• 15 years ago

Abolish them or at least make the period much shorter.

monochromatic4• 15 years ago

I don't really mean to complain about this poll, because it's a legitimate question and it's sparked some good discussion. But having a poll about software patents on HN feels a little like having a poll about the ATF over on Glocktalk (or some other suitable analogy). Of course everyone (to within experimental error) is against.

SoftwareMaven• 15 years ago

I voted for a much shorter period, but I want to include a much more rigorous definition of non-obviousness in there. Perhaps my idea can't be reasonable implemented, but the current system is obvious broken.

billmcneale2• 15 years ago

The US

- has very strong support for software patents

- is one of the most innovative countries in the world in the software area

China

- has no support for software patents whatsoever

- has close to zero innovation in software

Can someone explain this paradox?

Locke168911• 15 years ago

I think you're reducing a hugely multivariate system to a univariate one.

joeburke• 15 years ago

As do people who want to "abolish patents".

While the system might need some revisions, it's certainly not as broken as a lot of abolitionists are depicting. Some things are working fine, and innovation is happening at a very fast pace in the US.

Software patents can be abused but they can also be a force that encourages people to actually innovate instead of just copying what's already out there (which is pretty much all we are seeing from countries that don't have software patent laws).

woodpanel• 15 years ago

I can't get rid of the feeling that (software) patents are just a means of driving out competition.

For a competitor, it adds layers of unproductive expenditures (legal work), pressures competitors into piling up their own stock of patents as leverage, thus creating patents whose creative accomplishment is the application for an patent. It creates a legal mine-field of patents, more legal insecurities, making an industry unattractive to enter.

(software) patents mean more waste of money, less competition, less innovation and are turning a free-market into a oligarchy-game, where participation is impossible without being part of the big players.

tlocke• 15 years ago

Of course, we don't have software patents in Europe, but I want to keep it that way.

InclinedPlane• 15 years ago

Bluntly, it's this:

Patents are designed to encourage and accelerate creativity and innovation, today they do exactly the opposite. They should go away.

ra• 15 years ago

Meta: The number of votes cast in this pole illustrates how big HN has become.

omouse2• 15 years ago

All software patents abolished. Stop stifling people's creative urges damnit.

drallison• 15 years ago

Of course, exactly what constitutes a software patent is not defined here so the results are likely to be specious.

Poll: Do you support software patents?

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