Abstract Ideas Don’t Deserve Patents

http://www.nytimes.com/2014/03/30/opinion/sunday/abstract-ideas-dont-deserve-patents.html

by wrongc0ntinent • 12 years ago

279 174 12 years ago

nytimes.com

thomasahle• 12 years ago

Does anyone have a link around the paywall?

zemo• 12 years ago

open the article in incognito mode in Chrome

Aineias• 12 years ago

Or open the mobile link. http://mobile.nytimes.com/2014/03/30/opinion/sunday/abstract...

ithkuil2• 12 years ago

What deserves a patent is a, possibly large, investment needed to show that an abstract idea can be a practical.

The magnitude of the investment is one of the reasons people tend to accept the concept of patents more in some field than in others.

TillE• 12 years ago

I'd be pretty happy with a system that gives only short-term (two-year?) patents on the current criteria, with a 5-10 year extension awarded only after presenting evidence of significant investment or extraordinary novelty to an independent panel of experts.

Ilmesnkie_Jones• 12 years ago

You can already get a patent on processes that turn an abstract idea into a practical application. That leaves open the door for other applications of the abstract idea to still be used.

Jare• 12 years ago

Exactly. Note that opposing patents on certain inventions doesn't mean you think the inventors don't deserve to get insanely rich by commercially exploiting them; it just means you don't think they deserve a government-backed protection to do so.

So, what inventions should deserve such protection? For example, ideas which by their nature must be disclosed after a large investment in their development, but before having a chance to be placed in the market. Regulated industries like drugs come to mind. Even then, the extent of the protection should be limited to a (short) period to prepare and launch commercial exploitation of the idea. Therefore, the patent should include proof and plan for such commercialization of the idea.

netcan2• 12 years ago

I think this is true from an economic engineering perspective. If a patent doesn't require investment, it doesn't need a patent to ensure that investment can be recovered.

From an enforcement perspective it could get pretty ugly. Also, the law is at its best when it deals in definable concepts. Large is relative. For Google, an investment to large to be pursued on a whim has 4 or 5 more zeros than it does for me.

bo1024• 12 years ago

I disagree. Why does that deserve a patent?

If a particular invention is created that realizes the idea, I agree that the invention should be patentable, but it sounds like your post advocates patents on scientific research.

ithkuil2• 12 years ago

To be honest I'm not advocating anything. I'd like very much to live in a more enlightened age than this, but it's a good idea to understand how things work.

If you need money to do something you will get it from someone who wants to get back something (modulo risk), and the patent system is one way to transform ideas in value that can be traded. It's not the only way, and not all the alternatives are better.

My point was that as long as there is a real work behind a patent, people tend to show more understanding of the need of a patenting system, while being rightfully outraged in cases of patent trolls and/or plain bullshit.

MCarusi• 12 years ago

The patent situation has become a circus. There's a company claiming a patent on video advertisements preceding video content, and they're suing every online media company in existence hoping for shakedowns.

I once jokingly suggested a patent about paying online, but lo and behold, someone has that too.

ithinkso• 12 years ago

Has someone already patented earning money by patenting everything and then suing everyone else?

cheese1756• 12 years ago

Yes: http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-...

I wish I were joking.

md2be• 12 years ago

The Court should provide machine (processor) level protection and rule that high level programming is obvious, in that it requires only routine experimentation. The challenge for the court is how to make room for machines whose novelty is a software control. I would argue that there should be a moving element test. Is there a software/hardware interface.

mindvirus• 12 years ago

For software patents, I'm a fan of Richard Stallman's idea that software patents should require working, annotated source code be attached. I think that this would make it easier to compare ideas to those in previous patents.

If patent filers chose to obfuscate their code, ideally their patent would be rejected for being unclear, or at least, they'd have a hard time defending their patent, as the difference between it and an alleged infringer would be quite large.

harshreality2• 12 years ago

How would you measure the size of the difference between the source code in the patent an the source code in an alleged patent-violating piece of code?

If you were to require that the patent code and the alleged patent-violating source code were defined functionally and represented the exact same function (prove f(x) = g(x)), that would cut down the space of potential patent violations, but patent holders would scream that such a limitation is unfair. There would still be plenty of silly patents that would be patentable, and the same problems would exist as with the existing system: if you read patents to see whether your code violates one of them, you're on the hook for more damages. In any case where exact behavior is not critical, someone might be able to get around patents simply by changing the mechanism/computation slightly. I'm thinking of things like mpeg patents, where encoding and decoding techniques are constantly being tweaked, improved, and getting new settings. Would allowing an additional input to a function f(a, b, c, ..., m), i.e. f(a, b, c, ..., m, n) render it immune to a patent that hardcodes n as "5" in the function?

Renaud• 12 years ago

But in that case the patent would probably offer little more protection than what copyright already provide?

Why do we need software patents in the first place?

vinceguidry• 12 years ago

Copyrights and patents solve problems that look similar on the surface, but underneath are completely different. Copyright fixes the ease of theft of creative works, patents fix ease of theft of innovation.

What constitutes theft of creativity? Stealing Mickey Mouse is an extremely concerted act, you have to present a character that is intended to fool people into thinking it's Mickey.

But stealing innovation is much broader. Accompanying a software patent application with illustrative source code will not limit the scope of the patent to copying the code. It covers use of the method, not just the code.

If someone, for instance, applied for a patent by describing an electronic game in which a player controlled character collects tokens inside a maze while computer-controlled characters tried to capture him, and accompanied his application with a full working copy of Pac-Man, then the patent would protect him against clones as well as direct copies. The point is not protecting against copies, that's the job of copyright. The point is the clones.

Patent law is intended to safeguard innovation that one could say would not have happened otherwise.

As to why we need software patents, recent articles have described the legal situation better than I can in a HN comment. Basically there's no legal distinction that has been drawn yet between software patents and other types of patents, one needs to be properly described and that's the job of the Supreme Court. At one point they were banned because they were insufficiently distinguishable from mathematical formulas, which definitely are unpatentable.

Over the years, Congress decided that patents were getting too complex for the court system to properly adjudicate, so they created a separate court to hear patent cases. This court turned out to be friendly to big business and gradually opened the doors to software patents while the Supreme Court chose not to get involved.

jandrewrogers4• 12 years ago

Some algorithm patents do include source code but it is not that helpful. Identical algorithms can be implemented in very different ways within and across programming languages, so there is no comparative value. There are algorithmic equivalencies in implementation that look wildly different in code.

For example, in spatial indexing you can implement some widely used algorithms as either traversing the obvious space decomposition tree or doing lookups using projections onto higher dimensionality space-filling curves. The former is "obvious" but all good implementations use the latter code design because it is much more scalable in real systems even though the algorithms are equivalent.

Most algorithm patents with code go for "matches the high-level description of the algorithm" rather than "is an optimal representation of the algorithm given current computer science". That said, in my experience people are pretty good at reconstructing an algorithm implementation from patent descriptions that do not include code, assuming they have some domain expertise (i.e. in the above example, it should not be necessary to explain the representational equivalency of literal space decomposition and projections onto space-filling curves).

sliverstorm• 12 years ago

Is it fundamentally different from diagrams and drawings in mechanical patent apps? To me, the diagram (or source code) is just another way of describing the patent. Firstly to help better illustrate what it is for, secondly to show you have a working implementation.

technoir4• 12 years ago

If there is a different way of implementing it than described in the patent, did the patent owner really invent the other method?

vog• 12 years ago

Even better, though, is not having software patents at all.

This works very well in European Union, although this is an ongoing fight between lobbyists and civil rights defenders (such as FFII and EDRi).

(Note that there are lots of European software patents already filed, but those not legally enforcible right now.)

fpp• 12 years ago

Fully agreed - that is what the true meaning of "a person skilled in the art" should be with regards to software patents sufficient disclosure requirements and to demonstrate that the patent is not only fiction or a minor adaptation of prior art.

At that point of course it will also be much easier to limit all those overly broad claims.

voicereasonish• 12 years ago

There is almost no difference between "obfuscated code", and "badly written code".

Source code should not be patentable.

joelgrus• 12 years ago

For me, the ad at the bottom of the page is "How To Patent Your Idea".

josaka• 12 years ago

An important distinction here is why the alleged invention should not be patentable: 1) because it is obvious in view of what was done before; or 2) solely because it is software, regardless of whether those in the field would regard it as a significant advance. The latter is a much bigger change from the status quo, but the article sort of conflates the two.

codeoclock• 12 years ago

Can we talk about paywall links on HN?

pbhjpbhj• 12 years ago

I think that's a good idea, but as a separate story.

alisnic• 12 years ago

ok.

danford• 12 years ago

As someone who is currently residing in the year 2055 and has a neuro-prosthetic, I believe corporations and governments need access to our brain machine interfaces so that when we copy a patented or copy-righted idea to our memory they can safely delete it. How could people make money in my time if I can just remember their data? Support the Data Control Agency!

RexRollman• 12 years ago

I'm against software patents, but if we must have them, can't we at least make them shorter? The software world moves too fast for these kinds of patents to have the term lengths that they do.

rayiner• 12 years ago

There's not a lot of debate about whether abstract ideas deserve patents. The consensus is that they don't. The debate is about how to figure out what is an abstract idea and what isn't. On one side, you have an abstract idea like "hedging settlement risk by using shadow accounts" (the patent at issue in CLS Bank v. Alice Corp). Almost everyone on the Fed. Cir. thought this shouldn't be patentable. On the other side, you have something like whatever algorithm is the subject of the gbatteries patent: http://www.gbatteries.com/technology/ ("Our patent-pending process maintains the lithium ion diffusion at optimal levels and eliminates concentration polarization and thus allows the Li-ions to be more uniformly extracted from or reinserted into the cathode materials."). That probably should be patentable, because while the charging algorithm might be simple to describe and could easily be reimplemented, it probably took a lot of R&D to design it in the first place.

The question is, how do you draw the line between the two?

HarryHirsch• 12 years ago

The question is, how do you draw the line between the two?

This is what has traditionally been protected by trade secrets - the problem is that software is easier to reverse-engineer than real-life problems. The integrated circuit community has dealt with the issue ever since they were invented. My feeling is that the possibility of reverse-engineering has in fact spurred innovation in that field, and it's another reason why the no-poaching agreement between Apple and Google is so abhorrent, it did not only depress wages, it also slowed progress in the field.

On the other hand, there is the issue of "gene patents". A pharmco takes out a patent on a gene, because you cannot patent abstract ideas, but what they are really doing is protecting the relationship between a gene and a medical condition. This is early discovery, and the price tag and timeline is that of a small space mission, several hundred millions and the better part of a decade. Once something is admitted to market the project is comparable to a flagship space mission, several billions and two decades of work. Patents are the wrong tool for that kind of job.

ScottBurson2• 12 years ago

I persist in thinking that the problem is not with the subject matter test. A computer program is obviously a machine, just as the Federal Circuit and lots of other people intuitively assume.

The problem is with the obviousness bar, which is far, far, far too low. I haven't studied the Alice patent, but let's take what the NYT says about it here:

The issue in this case, Alice Corporation Pty. v. CLS Bank International, is whether using a computer to implement a well-established economic concept can be patented. [...] Alice Corporation obtained four American patents that cover a method of settling trades between investors in currency and other financial markets. The approach depends on a neutral middleman to make sure traders complete the transactions they have agreed to. [...] Alice Corporation has argued that its patents cover a specific computer-enabled system and method, not the fundamental idea of using intermediaries in financial settlements. But CLS Bank, which first sued Alice in an attempt to have its patents invalidated, says that Alice’s system does not add anything meaningful to a basic idea.

The NYT Editorial Board is using this argument to urge the Supreme Court to rule that this patent's subject matter is inappropriate. But I think this can just as easily, if not more easily, be read as an argument that the invention in question is obvious. Taking some process that was previously done by hand and computerizing it, or some part of it, is, in this day and age, a paradigmatic example of something obvious.

Again: I haven't studied the actual patent. I just think it's unfortunate that everyone is talking about this as a subject matter problem, when we have a screaming obviousness problem that the Federal Circuit is right at the center of.

I want the Supreme Court to tell the Federal Circuit that mere novelty does not entail nonobviousness. In such a highly generative field as software, which has an uncountable number of applications, simply coming up with another one contributes little or nothing to the state of the art. If someone else who encountered the same requirements could implement a system to satisfy them just as easily before reading a putative patent as after reading it, there was no intellectual contribution and the patent should not be valid. This was clearly the intent behind the patent system at its inception. It should be restored.

ScottBurson2• 12 years ago

we have a screaming obviousness problem that the Federal Circuit is right at the center of

Let me give a cite for that. From [0]:

The [Federal Circuit] watered down the rule against obvious patents. Supreme Court precedents prior to the creation of the Federal Circuit held that merely combining two previously-known technologies in a straightforward fashion was too obvious to merit patent protection. To be patent eligible, the Supreme Court held, an invention needed to be "greater than the sum of its parts."

The Federal Circuit developed a more permissive rule that only allowed a combination of known components to be declared obvious if there was specific documentation that someone had suggested that combination prior to the patent application. The court adopted this rule to guard against the danger that hindsight bias would lead people to over-estimate an idea's obviousness. But the court seemed less concerned with the possibility that some combinations are so obvious that no one would bother writing them down.

[0] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...

kenster07• 12 years ago

There is clearly no reason for software patents. To look at this issue from another angle, consider the following.

What was the reason for creating the patent system in the first place? To give people an incentive to invent new things: if someone invests the time in coming up with something novel, the legal system would give a temporary monopoly in return.

But in today's world, clearly one would imagine the vast majority, if not all software would have been invented as is, without the incentives that patent protection provides. When one contrasts this with the well-known downsides of software patents, the outcome should be clear: abolish them.

jordigh3• 12 years ago

What was the reason for creating the patent system in the first place? To give people an incentive to invent new things:

No, the point of the patent system is not to incentivise invention. The point of patents is to destroy trade secrets. The word "patent" means "open". The whole point of patents is increase society's knowledge of how to do things.

People invent with or without patents. What they don't always do without patents is to say how those inventions work. The bargain inventors make with patents is, tell us how you did it, and in exchange we promise to not compete with you for a while.

This is an awesome patent:

http://www.google.com/patents/US5255452

This is what patents are supposed to be about: a magician revealing his tricks. Without the patent system, Michael Jackson may have taken his idea to the grave.

The problem is that almost none of the people patenting software are magicians.

cookingrobot• 12 years ago

That sounds good in theory - but do you see this actually happening in practice? I've filed dozens of patents, but haven't ever looked into a competitor's software patent to see how they do things. Many companies instruct their engineers not to ever read patents because it can work against you in a lawsuit.

shasta4• 12 years ago

Your view of patents doesn't match reality.

What they don't always do without patents is to say how those inventions work.

For 90+% of patents, the idea is implicitly disclosed by releasing a product that makes use of the idea. In cases where a trade secrets can be effectively kept, that's what companies do!

csallen4• 12 years ago

Destroying trade secrets may be a benefit of the patent system, but it's historically inaccurate to say that's why the system was created in the first place.

The Constitution itself gives the reason as "to promote the progress of science and useful arts". Numerous letters written by the Constitution's framers support the interpretation that the goal is to incentivize creation by granting monopolies.

jandrewrogers4• 12 years ago

The reason for creating a patent system is to encourage public disclosure of inventions. Patents came out of the enormous problems that resulted in the widespread use of trade secrets, which actively hindered technological development in the past. This essentially forces everyone to redundantly do a lot of R&D that has already been done under non-disclosure rather than incorporating ideas that have been publicly disclosed and using that as a starting point for further innovation.

We already see this in a number of areas of computer science, where the algorithm state-of-the-art at private companies is a decade ahead of the public academic literature. This basically has the academics in many computer science domains essentially trying to reinvent things that have been known for years as trade secrets at large companies rather than doing genuinely original research.

I do not think there is an obviously good solution, since algorithm patents are difficult to enforce in any case, but one of the trends resulting from a lack of algorithm patent enforceability is that almost all cutting edge computer science R&D is now done and kept as a trade secret by companies because it has a material commercial advantage.

bjt2• 12 years ago

We don't need a patent system in order for openness to beat closedness in the software world. Linux and lots of other open source projects are winning their markets without relying on patents at all.

No one forces you to choose a patent over keeping your invention secret. Trade secrets still exist everywhere. And that's OK.

You say it's a problem that companies are a decade ahead of academia in some CS areas. Given that companies can choose what to make public and what to keep secret, what's the alternative? It's the ability to have some exclusive time in the market that incentivizes the companies to do that research in the first place. I'd rather have them ahead by 10 years because of trade secrets than getting 20 years of exclusivity through a patent.

new299• 12 years ago

"What was the reason for creating the patent system in the first place? To give people an incentive to invent new things: if someone invests the time in coming up with something novel, the legal system would give a temporary monopoly in return."

If someone invests the time in coming up with something novel, and discloses it publicly. If I remember correctly, public disclosure was the more important part of the original motivation for the patent system.

"patents are intended to facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, in many cases, they might prefer or tend to keep their inventions secret."

That's from Wikipedia, but I'd be interested to see a better reference if anyone has one. So, to play devils advocate, given that motivation you can see an argument for software patents. Potentially a stronger one than for other patents.

It's much easier to obscure algorithms than other inventions. If an algorithm is not patentable, many companies might choose to just obscure the algorithm either by offering it as a service or obscuring the code.

By allowing software patents for a complex algorithm the method is released into the public domain in return for a limited monopoly. After the term of the monopoly, the algorithm will be freely available for use by everyone.

tmzt• 12 years ago

This might be a better one, from the US Constitution:

  To promote the progress of science and useful arts, by
  securing for limited times to authors and inventors the
  exclusive right to their respective writings and discoveries;

http://www.law.cornell.edu/constitution/articlei#section8

ericHosick• 12 years ago

But in today's world, clearly one would imagine the vast majority, if not all software would have been invented as is, without the incentives that patent protection provides.

It could be that in our society (USA), people would be so willing to invent software without patents because the patent system itself has created an environment by which people can be successful from being so open. The intention of the patent system worked.

A lot of societies are very closed with regards to sharing information.

diminoten• 12 years ago

And they don't get them. Business methods get patents.

Why is this basic, fundamental concept not understood by people who purport to know about "software" patents?

grifpete2• 12 years ago

I can't read the original article because it is behind a paywall...BUT...abstract ideas do not get patents.

This is not my opinion, it is fact. Look it up.

chrismcb• 12 years ago

You do understand what the current lawsuit is over, right? It boils down to someone has patented an idea, the other guy says "you can't do that." The original pantentee is saying "but it is an implementation running on a computer"

grifpete2• 12 years ago

As I made plain - I couldn't read the original article. But let me see if I understand you correctly. a) person A has a patent (which incidentally as a matter of law cannot be for just an abstract idea) b) person B challenges the patent - I am not sure what the grounds for this challenge are because you don't specify them. Is it because B is claiming that the patent was falsely awarded because it was no more than an abstract idea? c) person A disputes the challenge by pointing out that it isn't abstract.

If this interpretation of your comment is correct then I don't see how it is in conflict with my observation that abstract ideas can't be patented.

mikegioia• 12 years ago

I'm not sure what you're talking about, but you really shouldn't comment without reading the article. Both comments you made here aren't really relevant mainly because you could only read the headline.

JosephHatfield• 12 years ago

Anyone care to conjecture the practical effects of invalidating software patents beyond saving everyone involved time and money to litigate those patents? It may be valuable for that reason alone, but I'm trying to imagine a world where suddenly, overnight, all software patents are eliminated.

netcan2• 12 years ago

Patent systems are bad because they deal with concepts which are too vague. I don't think we can fix that.

Lets leave aside economic implications for a moment. What is an invention? Is it really different to a discovery. There is no good way to distinguish between invention and discovery because they're not distinct concepts. Distinctions are semantic, even in an archetypical example of patentable invention like Edison's lightbulb. Inventing a lightbulb is discovering that electricity can heat a filament, it emits light when hot and can be prevented from burning by placing it in a vacuum.

These are exactly the types of problems the law chokes on.

badman_ting• 12 years ago

Except for the patents that huge organizations already own, right? So they can go on using those to beat the crap out of each other and crush threatening offerings from smaller firms. Pick up the ladder after you climb it. Sweet.

sushirain4• 12 years ago

What are you saying, that the judges should allow this patent?

The solution is to make laws that forbid software patents. And if the old patents can be abolished, the better.

sushirain4• 12 years ago

Abolish software patents.

A world without software patents is a world of free and faster innovation, of equal opportunity, and of open and cheap access to technology.

Firms that have patentable knowledge are strong enough to not need governmental protection. Inventing something before others gives one technical advantage and time to make profit ahead of others.

Too much effort is spent on the patent process, that could be spent directly on innovation.

In today's software world, 20 years of monopoly is like 100 years of monopoly when the constitution was signed.

The solution should probably come from the legislative branch.

javindo• 12 years ago

One of the main arguments for patents is just the fact that some things require a bit of capital to get going and what is to stop some venture capitalist from taking pitches, telling the person it's a rubbish idea then going off and funding the idea himself?

sushirain4• 12 years ago

Patents won't help the engineer anyway, patents are made to protect the venture capitalist who invests the significant amount of money required to file the patent. That's the difference between the "inventor" and the "owner" as in patent law.

baddox2• 12 years ago

In that specific case, a contract could easily protect the inventor.

qq66• 12 years ago

Why abolish software patents but not all patents?

sushirain4• 12 years ago

Just because I don't have enough understanding in other fields outside of software. It is possible, for example, that medicine today requires patents to advance faster.

throwawaymsft• 12 years ago

Software is more similar to math algorithms and shouldn't be patentable. Fundamental physical inventions (not algorithms) should be.

If you invent a teleporter, you should have patent protection. Developing a video game that implements player.teleport() (however cleverly) shouldn't be.

hibikir• 12 years ago

Different fields are affected by patents differently. If I had to choose the current system and no patents, I'd choose no patents, but I see how there is space for other things.

In Software, patents are silly because everything is derivative, and it's very difficult to separate the obvious from the non-obvious. It's not as if most patents are coming from many years of research: Enough eyeballs often would have arrived at the same conclusion.

We'd also still build software without patents: It's just too useful not to keep working at it. Copyrights are more than enough.

So now let's look at a very controversial one where patents make all the difference: Soybean seeds. If I spend 15 years developing a seed that yields better, copyright will not help me. But the minute I sell a seed, you can make as many copies of it as you want. You don't even have to buy the first seed from me, since the seeds themselves are what the farmer sells. Therefore, investing in seed quality becomes something that is extremely hard to do in a for-profit organization, because you have to recoup your entire investment in the first year, as in the second one, anyone that has a field can be your competitor. Patents in the field are also rarely dependent on each other: Different genes can be stacked on a plant, but unless you developed the entire suite of them all at once, it's not as if it's likely someone is going to find a little refinement that they'd love to sell, but depends on a different party's patent to also be on the plant.

So in that field, no IP protection completely changes the game. Investment in soybean seed research becomes a purely government task, as it's impossible to get any ROI out of it.

Now, one can still be against life sciences patents, but it's easy to see how removal of said patents would lower the effort spent on research, while on software, if anything, it'd make it go up, as we'd stop being afraid of doing something that we find obvious, and that someone else found patentable.

So on each field, patents have different dynamics, and should be evaluated independently. I don't think you'll find many pro-software patent people that aren't just pro-patenting everything. And those really don't make any sense.

baddox2• 12 years ago

I say abolish both. But it's easier to argue specifically against software patents, because even people who are generally fans of intellectual property protection can be shown how ludicrous software patents are.

georgemcbay3• 12 years ago

Software patents tend to be the most superficial of them all when it comes to the litmus test of "Could I reproduce this patented system without ever reading the patent just by looking at the results of it". (Or, even worse, in many cases it boils down to "could I reproduce this patented system totally by accident without ever even knowing someone else patented this simple system").

A good canonical example of this is Apple's much maligned "bounce scroll" or slide-to-unlock patents (though Apple is hardly alone when it comes to this nonsense).

Any decent software developer could see either of those in action, having never read Apple's patent and never seen Apple's source code and whip up his or her own implementation in less than an hour. That alone should invalidate these patents.

Some will argue that Apple's original idea was unique at the time, so they should have a patent on those grounds, but that's not what patents are supposed to protect (though massive amounts of money being funneled into lobbying and the legal system have served to obscure this in the past couple of decades).

Patents don't exist to protect ideas, they are supposed to protect unique and novel implementations of inventions, not ideas. There's really not a true legal IP mechanism for the protection of ideas (even copyright is protection of expression, which is closer to ideas, but not quite the same).

alok-g5• 12 years ago

Let's look at "abolish software patents" more deeply:

Is this retroactive, i.e., all software patents filed and granted in the past too are abolished?

If 'no', this can bring disadvantage to new comers who cannot file any new patents against those who have already have then granted.

If 'yes', what happens to all the money companies have already spent on the patents they currently have? (International filings in many different countries can set a company back by several hundred thousands of dollars.)

I am open to considering favoring abolishing patents (see also the alternative discussion on why only for software) provided it is applied uniformly to the past as well as the future without disadvantaging new comers.

I do agree that on the very least, the term of the patent should be dependent on the degree of innovation involved whether in terms of time (number of years of validity) or money (maximum amount of gain in proportion to the R&D expenditure). People on HN have generally opposed this thought due to the overheads involved, etc.

Hermel2• 12 years ago

The smooth way would obviously be to invalidate all patents exactly 20 years from now. That's how long patents last. You don't take away anything from anyone. The only drawback is that it will take 20 years to implement. However, it will already have an effect much sooner - why filing for a patent in 2030 when it expires already in 2034?

shawn-furyan• 12 years ago

Wouldn't the signal sent by abolishing all future software patents likely bias courts in the direction of not upholding current software patents even if we didn't explicitly invalidate all current patents? It seems that it would be a lot harder to get a judgement against an "infringer" of a bogus software patent if all software patents were considered invalid. So even if we didn't get all past software patent awards retroactively invalidated it seems plausible that it would significantly declaw them.

It seems like the holder of a software patent would really have to have something to get it to stick in such an environment. Because of that potentiality it doesn't seem like an all or nothing proposition to me.

AnthonyMouse• 12 years ago

Is this retroactive, i.e., all software patents filed and granted in the past too are abolished?

It seems to me the way to do it is to establish that software alone (or software in combination with a prior art computer) cannot infringe any patent.

If 'yes', what happens to all the money companies have already spent on the patents they currently have?

The assumption is that abolishing software patents will have a net positive result. Practicing entities thereby have more to gain by avoiding the future costs of zero sum patent prosecution, licensing negotiations and patent litigation than they have to lose in sunk patent prosecution costs.

The hardest hit would of course be patent trolls with no other line of business, whose dissolution into bankruptcy can only be celebrated. Your concern is like being concerned for the costs incurred by kidnappers in purchasing unmarked vans and securing abandoned warehouses when the day comes that we abolish kidnapping.

furyg3• 12 years ago

It seems to me that the best way to abolish patents is over time.

We are currently granting 20 year patents. Next year we grant 19-year patents, etc, etc. Past (and current) investors can capitalize on their 'investments', and the USPO and related services (attorneys) have a chance to scale down gradually.

Over time there would be diminishing returns on filing a patent, and players entering the world of software patents are faced with exactly the same world that they now face, except over time things look better.

argumentum6• 12 years ago

Abolish Intellectual Property. Period.

IP's time (if there ever was one) is over. There is no benefit for real inventors and artists anymore, merely for mega corporations to use the levers of government to maximize their profits at the expense of humanity and freedom. Nothing "intellectual" should be property.

I'm not against corporations or even mega corporations. I think they'd do better for themselves (and their users, more importantly) if they didn't waste years and $billions battling each other and bullying startups and individuals over IP. Instead, they should just focus of making better things.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. - Thomas Jefferson

Snail_Commando11• 12 years ago

Abolish Intellectual Property. Period.
IP's time (if there ever was one) is over. There is no benefit for real inventors and artists anymore, merely for mega corporations to use the levers of government to maximize their profits at the expense of humanity and freedom. Nothing "intellectual" should be property.
I'm not against corporations or even mega corporations. I think they'd do better for themselves (and their users, more importantly) if they didn't waste years and $billions battling each other and bullying startups and individuals over IP. Instead, they should just focus of making better things.
[Quotation]

This sounds like a noble rallying cry but is ultimately misguided. How does this system reconcile with the incentive structures inherent in pharmaceutical research and drug design?

harshreality2• 12 years ago

Pharma is a special case. Can we separate IP into pharma and -other- and deal with them separately?

Pharma "development" might be done by academics who get bought out by big pharma after their discovery, or it might be done originally by big pharma. Should pharma IP be protected so they can inflate prices to pad the bank accounts of the inventors even though they were operating in academia at the time of invention?

Pharma costs involve (a) cost to discover a drug, (b) cost to do drug trials, including all bureaucratic red tape in getting the drug approved, and (c) advertising and marketing (both to prospective patients and to the medical establishment). From what I've read, advertising costs exceed R&D. Surely, IP monopoly pricing should not be able to pass along arbitrary marketing costs.

Some drugs are prescribed for serious health problems, some drugs are prescribed and taken on a more voluntary basis, and there's a gray area in between. Should IP owners be able to set arbitrary profit margins for drugs for more serious health problems? Who decides what's serious?

The incentives for much of the pharma industry are all wrong: they market to doctors and potential end-users, even though end users are rarely capable of evaluating drugs, and even though doctors are influenced by marketing directed at them. This isn't so much a cost issue (other than advertising costs, above) but rather a public health issue. Some drugs might not be in the public's interest at all, even while being recommended by doctors, and paid for at inflated prices by patients and insurance companies.

There are so many complications, I'm in favor of dealing with pharma IP separately.

aric3• 12 years ago

It reconciles by coping.

It's better to deal with the harsh reality of peaceful commerce than it is to continually mold an economy with abysmal, suppressive, artificial constraints. Such laws are overwhelmingly wielded by large corporations: groups of protected people who afford patent war chests, suck up the relatively small patents "of the little guy," who gladly suffer constraints, and whose dominion grows parasitically with every law they bend in their direction.

The answer for "incentivizing" progress has no clear path. But I know it should lie elsewhere from this current one, if we're to ever set our courses ethically. It must consist of peace. Peace means not using violence and not caging people just to mold corporate will. Incentives exist on one side. Many people are naturally driven to learn, research, create, and discover.

On the other side, that doesn't solve the economic drivers that act as a backbone. Obviously, that's where your question is focused. Given less control by corporations, I imagine time-to-market, mover advantage, and trade recognition would still be enough to create a very fertile economy. It would hardly lack in the catalysts that dive manufacturing and profit-based prospects and motives. I'd argue that it would increase those conditions beyond just the net-health increase of market access. The major difference would be an economy that becomes more decentralized with fewer mega-corporations and more p2p trade. The pace of drug design would not necessarily slow. Motives and rewards behind drug design would nevertheless change and certain aspects of that would slow.

I'm more sympathetic to trademark IP. Trademarks were a helpful stopgap against fraud in the evolution of the US economy. Yet, trademarks as we know them today could be logically disbanded in the future if the means which which to prove identities and dates of creation become more solidified into everyday life. Certain aspects of enforcement would probably linger on for consumer protection (e.g. selling exact, branded replicas of a product would be prohibited in areas where true confusion is likely to occur). I believe most people want to reward people and businesses who take chances, act transparently, and serve quality products and services, the more that information becomes readily flowing. Likewise, I believe most people want to disfavor the people who act fraudulently (presenting the works of others as their own).

Ultimately, I'd rather society cope with the human potential that occurs without the limitations of patents, rather than society coping with the human potential that occurs with the limitations of patents. This philosophy may or may not lead to more net gains superficially. However, I think it leads to more gains rationally and ethically.

argumentum6• 12 years ago

I think we'd be a lot better off with much better medicine and medical treatments without IP. This is a whole other argument though, and I'll only engage if you want to.

rgbrenner2• 12 years ago

Intellectual property includes trademarks and copyright.. So what you're saying here is very radical. Knockoff (not necessarily the same formula) drugs sold with pfizers trademark. Gpl'd code used in commercial programs without attribution or contribution of changes. No software licenses.. No ability to sell software at all (since anyone could copy it and give it away for free).. And consumers lose the ability to tell who is selling what (since anyone can use anyone else's trademarks).

I don't think most people would agree with such a radical change.

Edit: even saas would be a problem.. Since a competitor to Amazon aws could call themselves amazonsaws.com, and use amazons logo etc (for ex)

olalonde• 12 years ago

As an aside, I wonder to what extent trademark laws could be made obsolete through technical means (using cryptography for example). Pfizer could cryptographically sign its labels. The problem is that counterfeiters could still copy labels from existing products. Maybe Pfizer could use a distributed ledger (e.g. Bitcoin) to prove the authenticity of its products?

When Pfizer sells a product to a distributor, said distributor would require Pfizer to send a tiny transaction to their address.

  Known Pfizer address associated with product -> Distributor's address

When the distributor sells the product to a retail shop, the retail shop could verify the product's authenticity by requiring the distributor to reveal an address that can be linked up to Pfizer's "known address associated with product".

As part of the purchase process, the retail shop would in turn require the distributor to send a transaction from said address to their address so that they can in turn prove authenticity to their customers and so on. A valid transaction should spend the full amount of the seller's address (e.g. 1 satoshi) so that there is only one possible path from Pfizer's address to the final owner of the product.

  Known Pfizer address associated with product -> Distributor's address -> Retailer's address

A product would then be considered counterfeit if a seller is unable to produce the type of transaction described above.

One possible issue with this scheme is that it would still allow an hypothetical scammer to produce a valid transaction (assuming they previously bought the authentic product) and sell a fake product. However, there would be little economic incentive to do so given that their authentic product would now be valued as a fake (since they would have "lost" the ability to prove its authenticity).

Essentially, it would let a scammer buy an authentic product for the price of a fake. Not bad, but it doesn't scale well unless your goal is to acquire a bunch of authentic products for personal use with no intention of reselling. In other words, individual sellers (e.g. on Craigslist) might do it but it wouldn't be practical at a business level.

PS: I think I might just have described "colored coins" in a convoluted way.

argumentum6• 12 years ago

I don't think most people would agree with such a radical change.

Sure, the anti-slavery faction of the Republican party were called the "Radical Republicans" for a reason. I'm perfectly OK being the only person on earth that believes something.

Don't take refuge in the false security of consensus.

As another commenter mentioned, if you want to prove you are the producer of a good/service, you can find invent some way to do that, but it's on you.

Or some startup could invent a verification method and sell it (as a service) ..

linuxhansl2• 12 years ago

Amen.

The most important part about patents to remember why they exist.

Why would congress grant a legal monopoly to anybody? The reason is (or should be) to protect any investment that went into the invention; for the benefit of society as a whole - to make sure expensive research is still going to happen.

An idea does not cost anything. It might have some value if nobody had that idea before, but the idea would have been had anyway regardless of any legal protection. It might suck for the individual having the idea, but society is not served by protecting ideas that came without cost.

If you translated software patents to books, a patent would be like a legal monopoly on "science fiction stories", or "crime stories". Whereas copyright protects a specific store - as it should. Other folks are free to write other science fiction or crime stories.

Anyway... I am not holding my breath. Also there are so many patents already out there, these will likely not be invalidated retroactively.

grandinj• 12 years ago

Patents were not there to protect investment. That is a post-hoc reason. The original justification was to encourage inventors to share their ideas instead of hiding them. This was at a time when reverse engineering something was a to harder, so it actually made sense.

alexqgb• 12 years ago

Um, right. And how did the law intend to "encourage inventors to share their ideas"? That's right, by protecting the investments made in their origination.

That's it.

Hermel2• 12 years ago

In that case, one should require working source code to be filed along with software patents.

Snail_Commando11• 12 years ago

The reason is (or should be) to protect any investment that went into the invention; for the benefit of society as a whole - to make sure expensive research is still going to happen.

This is critical. Not just to enable expensive investment, but to create an incentive structure that encourages scientific research that remains in the public domain. This is a critical point that people often miss in these arguments.

In computerland, we don't come up with new computer science every time we program an application. In pharmaceutical land, you literally have to come up with new science to make a new drug.

Let's not forget that, as software developers, our perspective and opinions on patents are not fungible across all domains.

The patent system in the pharmaceutical industry enables a healthy drug research and design market with proper incentive structures. Abolishing patents in the pharmaceutical industry would retard research, skew incentives, and encourage trade secrets.

A patent free system would most likely result in a system of trade secrecy. Companies would not share their results, they would keep the secret formula to themselves. It would result in perpetual proprietary lockdowns.

After all, why make public the concept that you just spent billions of dollars and years of opportunity cost on? So that competitors can manufacture the drug at essentially zero cost? Nah, we'll just keep that to ourselves, thank you very much.

Trade secrets are a threat to science.

You cannot build a foundation of science on a platform eaten away by trade secrecy. Trade secrecy will deprive humanity of the positive externalities of a significant chunk of pharmaceutical research.

As developers, we see patents as a threat. A sharp implement of the greedy. In the pharmaceutical world, patents are a necessary rung in the ladder of human advancement. Yes, it doesn't always feel good to climb this ladder (consumer drug prices) but without it- there would just be a scrum of companies scrambling to climb up the research pole, each trampling each other's investment returns (incentive) to zero. They'd get bruised and go find easier poles to climb up.

Yes, the patent system in the pharmaceutical industry has flaws. But it is the best thing we have given the alternatives.

If you are interested, please see see my other comment: https://news.ycombinator.com/item?id=7497872

Snail_Commando11• 12 years ago

Edit: I'm mostly retracting my original comment below, my argument is flawed. See my sibling comment.

----------------------------------------------------------

Here is probably a better version of my argument:

https://news.ycombinator.com/item?id=7498742

Essentially, pharmaceutical clinical trials yield experimental results (new science), they are expensive (need incentive to take the risk), and any system that prevents execution of, or obfuscates the results of, the clinical trial phase is a threat to science. Maybe there is a better system than the patent system but it's the best system we have right now, given the alternatives. It could certainly be improved, maybe even replaced, but abolishing it wholesale is not a good idea.

Snail_Commando11• 12 years ago

Chapters 9 and 10 of this:

http://levine.sscnet.ucla.edu/general/intellectual/againstfi...

Make a pretty damning indictment of my argument.

Although I never really liked the patent system, I believed that it was ultimately "the best system given the alternatives" because I believed that in the absence of patent protection, pharmaceutical output would be reduced from lack of incentive. Historically, this has not been the case.

Although the authors do agree that abolishing the system in one fell swoop would be a bad idea because it would be politically untenable, prevent the reformation of certain institutions e.g. The FDA, and adversely affect medical researchers and pharmaceutical companies. They instead propose a phased reformation process which includes but is not limited to reducing the costs of phase II and phase III clinical trials (via NIH support / reformation), deregulating patent enforcement and instead affect private contract machinery, and ultimately phase out patents entirely.

My argument largely rested on my assumption that pharmaceutical companies were spending their money in a socially optimal way and that pharmaceutical output would be reduced in the absence of trade protectionism. It seems that empirically, the pharmaceutical industry is not an exception to the "trade protectionism is a bad idea" rule-- like I previously tried to argue.

They propose a series of reforms to the patent system (with the eventual goal of phasing it out) that would reduce costs.

I over estimated the amount of R&D money that was being properly spent. I did not realize how effective certain parts of the global industry have been in the absence of patents. And I did not account for the fact that the patent system incentivizes copy cat drug design. I look forward to finding out where else I'm wrong about healthcare economics.

linuxhansl2• 12 years ago

Thanks, and I completely agree with you.

It wasn't clear from my post, but patents are obviously important, just not to protect everybody's random ideas.

That is why it so important to make the point about the investment. In the pharmaceutical industry (and others) there is upfront cost and that should be encouraged and subsequently protected for some time.

I still have some philosophical reservations about patenting facts i.e. "this gene does that"; yet I think that is not avoidable.

The "Is society as a whole served" question, to me is the paramount criterion. How to establish that for a particular invention, I do not know.

peterashford5• 12 years ago

My understanding was that the original idea of patents was to prevent inventions being lost to mankind due to their being held secret. Patents allow inventors to have a short term monopoly in return for societies long term intellectual gain. Clearly, this is NOT occurring with today's software patents.

(1) Most s/w patents are not for 'inventions' that are non-obvious and therefore not even capable of being kept secret in the first instance, and,

(2) So many patent applications are so broad as to not actually describe a system in an implementable way. End result: we offer up monopolies, benefiting the 'inventor' but end up with no knowledge added to society. A situation that impoverishes the many to pay the few for pretty much nothing.

axman611• 12 years ago

I'd love to see some evidence for your claims, because they're pretty ridiculous. Arithmetic coding is now something that anyone can use because the patent applying to it has reached the end of its term. If IBM had instead decided to keep the discovery as a trade secret, and no one else had figured out how to perform the same method of compression, we wouldn't to this day have access to it. But we do, this is clearly a benefit to society because we can now produce compression software with much closer to optimal compression rations than we could before. So there goes (1). Would you also say that arithmetic coding is obvious? It sure is, once it's explained to you, but discovering the idea took a lot of effort, and was definitely not obvious given the knowledge that existed before. So there goes (1). All that I would say is that I think the term for software protection is too long given the current pace of development in the software space. This will not be true forever though, like all other technologies, things will begin to slow, and discoveries will be even more valuable once the space of computer science is more broadly mapped.

yummyfajitas• 12 years ago

I have a BS patent. It's a patent on the "conceptual system" (note: not a software patent) of using a Mechwarrior/Sims/Diablo style character builder interface plus standard search engine techniques to build a fashion search engine. I refused to sign it but somehow the patent was granted anyway.

Also included in the patent is the concept of paying humans to use the system to do searches for you (i.e., email a photo of shoes you like, someone will google it for you).

http://www.google.com/patents/US20130166591

If a patent is granted in spite of being obviously derivative to the point that the inventor refuses to sign it, something is broken.

novaleaf• 12 years ago

Come on, if you went through the process, you should know that patents (for right or wrong) can be derivative, as long as they apply the existing ideas to new/novel situations.

The granting of your patent doesn't mean you'd be able to successfully sue someone for paid searches, however you would have stronger grounds if they were executing paid searches on a fashion search engine with a character builder interface.

pwg• 12 years ago

Actually, what you have is a "patent application". It is not yet a patent, although according to the Patent Offices public pair system (http://portal.uspto.gov/pair/PublicPair) it has had a "Non Final Action Mailed" on 2014-01-14. So it is being examined. Looking at the rejection on the pair system, all the claims of the application have been rejected during this go-round.

axman611• 12 years ago

What? Someone on hackernews who actually understands the patent system enough to know what's actually going on? This is unheard of!

fiatmoney• 12 years ago

"Deserve" is a framing that wraps together a moral claim with what is intended to be a purely utilitarian calculus (whether a class of patent "promote[s] the Progress of Science and useful Arts"). As soon as you start framing things in terms of who "deserves" what, the side who can generate greater pathos wins.

matthewsinclair• 12 years ago

As a holder of a number of patents (pending and granted), I'm obviously conflicted here. My early patents came from my days at Nokia Research Centre where there was a "patent quota". Yep, we had to come up with a set number of patents per year, regardless of the quality.

My views on patents were (subsequently) very strongly influenced by this paper: "Against Intellectual Property" by Brian Martin:

http://www.uow.edu.au/~bmartin/pubs/95psa.html

I would encourage anyone with an opinion on the topic to take a look at it. I'm not sure I agree 100% with everything in there, but the reasoning is very good.

These days, I'm much more in the "abolish software patents" camp than I used to be. The only valid reason I can think to have one now is for "freedom to operate", but I can attest from bitter experience, that simply doing a defensive publication of the core idea is significantly cheaper than obtaining a patent on the pretext of freedom to operate.

In any case, a system that necessitates spending upwards of US$100k to obtain freedom to operate, has something diabolically wrong with it.

EGreg4• 12 years ago

Make it easier to find prior art and make the loser of a patent suit pay for the suit. That will prevent the most egregious practice of patent trolls bullying small companies into settling befofe the case goes to trial. If the cost of losing a patent litigation was higher, trolling would become economically riskier.

axman611• 12 years ago

Make it easier to find prior art

How, exactly?

EGreg4• 12 years ago

USPTO has partnered with askpatents.com of StackExchange fame

I was at the roundtable where they announced it: http://www.uspto.gov/patents/init_events/sw_partnership_2013...

Abstract Ideas Don’t Deserve Patents

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