
Why software patents are not fixable  - stevefink
http://www.marco.org/2011/08/11/patents-cant-be-fixed
======
ericn
Two things about patents:

If patent workers are overworked, why don't we replace them with a certificate
of origination. You file it, it takes two weeks, it's dated, and it describes
the work. Then, if you need to sue someone, you then have to pay to prove that
they are infringing. Reverse the burden of proof and delay the cost of
approving patents.

Second, my biggest problem with software patents is that you can't build the
thing from the description. If you look at a patent for a device, there are
schematics and descriptions of how it works. Software patents just say "the
user can click a button and it automatically buys a book". Where are the
detailed drawings of how the web server connects to the payment system which
connects to the distribution center? How do you scale that up to millions of
users? That's where the magic is.

Patents are supposed to give the inventor a reasonable period of time to
profit from his work. After that time period is over, it becomes public
knowledge, so everyone can do it for free. Software patents do not give away
the knowledge that it actually takes to build the system. Instead, they
typically just describe the tiny bit that is apparent to the user.

~~~
mnutt
The problem that I see with the certificate of origination idea is that then
the patent trolls will file for literally millions of certificates of
origination. Then they'll just send you threatening letters asking for a
settlement and you have to do the costly vetting process to decide whether or
not their certificate of origination has merit. Most likely you'll just
settle.

~~~
moondistance
If there are many defendants, they could work together to find prior art.
Crowdsourcing might also be an option - for example, ArticleOnePartners.com
pays cash rewards to individuals who find prior art.

Mandatory arbitration (prior to trial) might also be an interesting
alternative, especially with the burden of proof on the plaintiff.

~~~
georgemcbay
The lawyers for the patent trolls are smarter than that, they aren't going to
_start_ with dozens of defendants, they are going to start with one or two,
bully them into settling, and then use those settlements as precedent when
they go after 4 other people... and hey, their patent must be valid, because
look at these two guys who are licensing it already.... then they go after the
next group (expanding the net each time like they did in those old 'she'll
tell two people' shampoo ads).

Precedent counts for a LOT when it comes to resolving any legal issues, even
if the precedent is settling, and the trolls know that and use it.

~~~
billswift
Settlements might make it easier to bully others later, but they do not
provide legal precedent. Only an actual court ruling does that. And as
senior/superior a court as possible.

------
alanh
Annoying that Marco seems to have taken many of his talking points from This
American Life's "When Patents Attack" episode -- _without_ attribution, and
mangling the facts in the process!

Toast patent -- featured in the episode.

Saying IV shell companies only sue people -- misrepresentation of something in
the episode; companies _affiliated_ with IV sue people, but some IV shell
companies may only be used to _acquire_ and _license_ patents (thus their
shell companies do not "only sue people" as Marco says).

Marco does not address the popular notion that software patents should be
wholesale dropped as a way to fix the problem.

So what is the point of this article?

~~~
nikcub
I thought this post from Nilay Patel today was a much better summation of a
similar argument:

<http://thisismynext.com/2011/08/11/broken-patent-system/>

Also more substantial and less nieve (ie. not from somebody who listened to
the TIL episode, read wikipedia for 15 minutes, and then decided to write a
blog post)

~~~
Locke1689
I can't understand why you think Patel's article is better. I will grant that
it is well written, but the argument is practically non-existent.

First, it's nowhere near a similar argument. Patel argues that software
patents are fundamentally sound, they're just implemented poorly.

This article instead argues a position closer to my own which is that software
patents are fundamentally broken because they _can't_ be implemented
correctly. The assumption in Patel's argument is that it's possible for the
USPTO to police software patents effectively. Thus far this has _not been
shown to be the case._ The argument in this blog post is that because of the
nature of governmental regulation, _this is impossible to do effectively._
After reaching this conclusion, the conclusion must be that software patents
are fundamentally broken.

Patel can make an argument that this is possible, but he doesn't.

------
timmyd
IMHO the problem with software patents is the prior art that's fundamentally
attached and the degree of difficulty in discovering it. Of course, there's
some other aspects:

1) In my mind, there is the disincentive to work at the US PTO [or any PTO for
that matter] because the salaries suck, you're demanded to have unrealistic
quota's and that means only so much time can be spent on each filing by
examiners who are mostly beginning - because ones they are experienced leave
to join firms who pay them a lot more because they have examined from "the
other side of the table".

It's a talent glut that starts the cycle, approves poor patents, clogs the
court with the attitude of "even if we are wrong [PTO] the Courts will resolve
it - so we really can't make mistakes" and increases litigation costs for all
involved.

2) I don't think removing patents is the solution - there have been 100's of
instances where the "little guy has stopped the big guy" in all sorts of
scenarios in innovation - tech or otherwise. The problem is that you have a
system which is bursting because the pay cycle for PTO is low, pressure driven
and this means you've inexperienced patent examiners who ultimately leave for
high paying firms. Why wouldn't they ? There isn't any economic incentive to
stay. Pay them more. Retain the best ones. Get better examination results, use
an Open Source Prior Art system which allows community collaboration to
increase prior art base and makes it harder to "prove" novelty.

3) Stopping the "patent trolls" [shell companies which no utility other than
to litigate] is a completely other matter IMHO. The patent system is designed
to protect innovation - I'm not sure it was designed to facilitate companies
purchasing huge packets of IP protection to simply stiffle innovation.
Llegislative restrictions should be placed around IP attaching to a product or
service which looses it's enforceability if it abstracts itself too far from
this product or service - meaning companies who acquire technology can
continue to gain from their acquisition [product/service] as it is inferred
they are in a similar field and therefore would satisfy any such test - but
which ultimately means that trolls who acquire IP don't have anything to gain.
They are too far abstracted which means their enforcability is dead.

i.e. A University developing and researching technology doesn't have an
"abstract connection" to any patents they hold - they developed the technology
and therefore have a direct association to the product/service - regardless of
who they licence it to for further commercialization - arguably, without their
initial cost of research and development the patent wouldn't exist and the
world wouldn't benefit from their efforts. IF a troll acquired the patent and
had no intention to develop the disclosed invention -they have no direct
association and therefore it's useless. A "bad faith" test if you will.

"Trolls" - at least in my view - have no direct connection to the patentable
subject matter - a so-called "abstract connection" - and therefore aren't
actually "benefiting" from their effort in developing the patentable subject
matter. They are essentially those entities who use patents purely as an
enforceable mechanism in order to extract income from innovators and that's a
sad by-product of patents unfortunately. In Trademark law, trademarks
registered in "bad-faith" can be extinguished and it would not be that
difficult to extend such a concept to patents such that owners who acquire
patent rights in bad-faith [that is, purely to stifle innovation without any
direct connection to the patentable material] - should loose them.

~~~
ldar15
Re: 1) - quite the contrary

Instead there is moral hazard. The process is this:

    
    
      1. Get a job at USPTO. 
      2. Deliberately approve tons of awful patents.
      3. Leave and get a job at a patent law firm.
      4. Profit!!!!
    

Observe that there is no ???? step.

~~~
pbhjpbhj
Quite the conspiracy theory you're building there.

~~~
billymeltdown
The revolving door between Government regulatory jobs and positions in the
very businesses regulated is pretty well-established at this point. I'd like
to see some evidence to back up that assessment with regards to the US PTO,
but it certainly doesn't strike me as unlikely.

~~~
pbhjpbhj
> _it certainly doesn't strike me as unlikely._ //

FWIW it strikes me as absurdly unlikely.

Can you describe the methodology of the examiner turned attorney, how do they
make money from this?

------
MatthewPhillips
We have two software patent articles on the front page of HN. One from a
developer saying they are unfixable; another from a lawyer saying they aren't
broken. I think this succinctly describes the situation we are in.

~~~
ldar15
Indeed. One from someone "ordinarily skilled in the arts", and one from
someone who is supposed to understand what that means.

------
pbhjpbhj
The answer apparently is 'because the US legal system doesn't work'.

> _In practice, therefore, an issued patent is a valid patent_ //

Well no. An invalid patent is still invalid even if you use it to badger
someone in to paying for a license. If that person knows that it's invalid, eg
because they know of certain publicly available prior art, then it is their
choice whether to pay for a license or follow a legal remedy.

If a legal remedy is uninviting because of problems with the legal system this
does not mean that "software patents are not fixable" it means that the legal
system in general is poor.

~~~
llimllib
> If a legal remedy is uninviting because of problems with the legal system
> this does not mean that "software patents are not fixable" it means that the
> legal system in general is poor.

Rather, he _assumes_ that the legal system is poor, and reasons from that
viewpoint. It's correct today, it'll be correct tomorrow, and it's unlikely to
be different anytime soon.

------
nikcub
It is easy to blame the patent office until you realize that most cases are a
single examiner in the office up against multiple law firms who continually
ask what is wrong with the patent, told that according to their interpretation
of the rules it is ok, refine and re-apply until granted.

You have hundreds of millions of dollars at stake, and the resources of the
best patent lawyers in the world and the largest companies in the world up
against (usually) a single examiner.

~~~
georgemcbay
What you're saying is true, but even after digesting it it is still easy for
me to blame the patent office (if not individual patent examiners) for the
problem.

The current brokenness of the patent system is due to a snowball effect. If
the patent office hadn't let the system slide out of control to the current
state of brokenness, their examiners would have more authority to push back on
anyone trying to push sketchy "inventions" through the system.

~~~
tiles
Seems like it would simply delay the issue, being, once you've gotten an
overly broad and generic patent through the system (however long it took) you
can wield that weapon pretty broadly.

Reduce the length of time the patent is valid or remove the benefits of
software patents, and you'll reduce the pressure on the USPTO pretty sharply.

------
hxa7241
> Patents are a good idea.

That is overstating it. They are a reasonable idea, but it does not seem at
all clear that anyone has ever proven them to be actually a good idea -- i.e.
that they have a net benefit, even if they were properly realised and
enforced.

~~~
IgorPartola
Don't know if you'd accept this as proof:
<http://en.wikipedia.org/wiki/Patent#Rationale>

~~~
greyfade
Those rationale can be proven to be false in virtually any industry.

Patents are supposed to be an inducement, but that rationale alone falls flat
on its face once you realize that invention takes place in the absence of
patent protections. Worse, patent protections make it _more difficult_ to
innovate as claims are broadened.

Disclosure is a laudable objective of patents, but largely unimportant as
multiple parties come to the same inventions and talented persons reverse-
engineer products (some of whom document their findings publicly). Enforced
disclosure is not _needed_ , irrespective of the protections awarded.

In industries where R&D is costly, patent protections are not needed when
there is a first-mover advantage. Moreover, patent protections are not needed
for commercialization, provided that the inventor continues to innovate after
the first sale. Providing a guaranteed advantage to the inventor causes an
overall harm to the market of the product, as the inventor has no incentive to
improve the product or lower prices, because the inventor has no competition.
Competition is _healthy_ , and patents neuter it, leaving the market fragile
and expensive.

All of these things can be demonstrated by analyzing the history of patent
litigation. I can find no reason to support these rationale.

~~~
berberich
What about the pharmaceutical industry? Third parties are likely able to
reproduce and sell generic versions of drugs within months of the original
version being put on the market.

Without patent protection, that's not enough time to come close to covering
the R&D costs, assuming the market for the branded drug shrinks in the face of
the much cheaper generics.

~~~
nikcub
I think pharmacuticals should fall under copyright (copyright the compound, in
the same way you do music or text)

copyright terms could use reform, though

~~~
justinsb
It's a nice idea, but I suspect that if you were to tweak copyright law to
apply to chemical compounds used as drugs (e.g. field of use restrictions)
you'd end up with patents.

~~~
nikcub
patents protect the mode of action rather than the compound, and the term can
be extended in court with simple little changes

it isn't as cut-and-dry in the pharma business, which is why most patent
lawsuits and active trial involve pharma. the patent system is supposed to be
simple, but the companies and the generic manufacturers are suing each other
all the time.

copyright would just apply per-compound at a fixed term. the other way to do
it is for the FDA (who are already approving drugs anyway) grant exclusive
periods to new drugs before generics are allowed

~~~
justinsb
What I was getting at is that most(?) compounds probably exist somewhere in
nature already, so copyright wouldn't apply without modification. I think that
means you'd have to copyright the compound in a novel field of use e.g. "for
use in treating cancer".

Further, you'd want your protection to cover many modifications, so that a
competitor can't just make a change to a non-functional aspect and piggy-back
off your research. Otherwise you'd have the problem that new R&D wouldn't pay
off, because competitors could just devise drugs that would use whatever
mechanism you discovered, even if they didn't have the same physical
embodiment.

What you end up with is a "copyright" that is - in practice - a patent.

Of course, the drug companies would probably love for their protection to last
75 years!

~~~
shabble
Regarding the modification aspect, there's already some (dubious) legislation
applicable to (illegal) drugs which are similar, in that they differ
only/primarily in non-functional ways:
[https://secure.wikimedia.org/wikipedia/en/wiki/Federal_Analo...](https://secure.wikimedia.org/wikipedia/en/wiki/Federal_Analog_Act)

On the "found in nature" aspect, I believe some of the patented gene sequences
are indeed derived directly from existing organisms, but are considered novel
'inventions' due to the labour and skill involved in identifying, isolating
and applying them. Copyright doesn't really fit for that sort of use-case.

------
RexRollman
In my humble opinion, software patents are a bad idea and should be
eliminated. If this can't be done, then they should be really limited in
length, say three to five years, which is a long time in the software world.

As things stand now, the only people I see benefiting from software patents
are lawyers and the Patent Office itself, which I sincerely believe is more
interested in collecting the filing fees than anything else.

------
jasontsui
The USPTO has not always been so eager to issue software patents. Up until the
early 90s they were reluctant as they saw code as a language which could be
copyrighted, but not invented. From what I understand, most software patents
came flooding in after the Court of Appeals ruled in favor in the case in re
Alappat, 1994. OP could have spent some more time doing research on software
patent history before writing this, I feel.

Edit for source [http://patentsusa.blogspot.com/2007/02/in-re-
alappat-1994.ht...](http://patentsusa.blogspot.com/2007/02/in-re-
alappat-1994.html)

------
azakai
One possible solution is a class-action lawsuit against the patent office.

The patent office is causing harm left and right by granting multitudes of
ridiculous patents. If it won't stop by itself, everyone that has been harmed
by such patents should join in suing it.

~~~
alanh
All students who have suffered through the shit-tastic Blackboard course
system (protected by software patents on a client-server-based app for
anything school-related, despite prior art from decades before!) could join in
…

------
codyrobbins
The problems he’s discussing arise from the fact that litigation is expensive,
and those with lots of legal resources can use their superior position to
assert their will against those who can’t afford (or may not be willing) to
defend themselves. That’s a valid issue, but a broader one that exists outside
the context of patents. It’s not a valid argument against the patent system
itself. A powerful chemical company that poisons a town’s water table can do
precisely the same thing. Does that mean we should outlaw chemical companies?
No, of course not. His argument is only valid in the context of arguing for
wider reforms to the legal process in general that make this sort of abuse
less feasible. And that’s a different discussion entirely.

This is precisely the point the other article today by Nilay Patel—which was
so lambasted here—was trying to make: the arguments being made about patents
don’t necessarily point to tearing down the system, but simply fixing the
things that are wrong.

~~~
smokeyj
Translation:

"Just because my _theory_ doesn't work in _reality_ doesn't mean we should
give up on the _whole_ theory! Society should suffer what they must until this
human experiment is refined"

Let's try to make this more objective. What's the goal of patents, how is
success measured, and why are patents the only way to achieve this outcome.
Furthermore, how did we establish that intellectual protectionism is more
advantageous than open ideas? You seem to be at odds with the open source
community.

------
IgorPartola
Here is a way to fix patents:

When you apply for a patent you have to show plans for producing the thing and
and the price per license to give it out (no upper limit so if you want to
only produce, set it to $10^24). For every year that you don't produce the
thing and nobody licenses it, the officially recorded license price gets
halved. For every year that someone does license it or you produce the thing,
you get to adjust the price to whatever you want. Thus companies like Lodsys
can only hold onto an unused patent for a fixed number of years before it
becomes irrelevant.

Obviously the timing is not ideal: a better half-life for an unused patent
might need to be adjusted. However, I think there is something to this idea.

Edit: A better way to determine the half-life would be to tie it to the
initial price or the price at the time of reduction. Basically, no matter how
high you start out, if you are a patent troll, your patent expires in 5 years.

~~~
webXL
I like the idea of showing financial plans. A patent should encourage
innovation and nothing more. I've always thought that the inventors (or patent
holders) should be entitled to all proceeds that their invention generates
until they've been adequately compensated for the opportunity cost and capital
they've risked to bring their idea to market. Capital costs are easy to
measure, opportunity costs not so much. But that is captured in what the
inventors plan to earn off their invention either through selling it or
licensing it, so the patent office can figure out how long a patent would need
to be valid in order for the inventors to be properly rewarded. Since a dollar
value would be attached to it in that case, any purchase of the patent would
probably change the time it takes for the inventors to be made whole.

In any case, 20 years of protection no matter who owns the patent is a
terribly stupid idea.

~~~
nikcub
> I've always thought that the inventors (or patent holders) should be
> entitled to all proceeds that their invention generates until they've been
> adequately compensated for the opportunity cost

that is worse than what we have now (damages were, until very recently,
calculated on 25% of profit from the part of a product that violated a patent)

also, there are already stringent 'use it or lose it' provisions in most
jurisdictions - they are easily avoided, and you only need a single state to
become 'patent friendly' to screw it all up anyway

------
monochromatic
The title is about software patents, but the text had almost nothing to do
with software as distinct from other technologies.

------
dan-k
The big problem that keeps coming up with software patents is the fact that
most of them are bogus, because of being trivial or unoriginal. Barring cases
of malicious intent by patent examiners, which are a completely separate issue
from the viability of the patent system itself, the reason for that is that
the patent examiners don't understand what constitutes non-obvious work in
software. In fact, I would guess that now there are very few fields in which
it's feasible for someone who's not already familiar with the field to make
that judgment in any reasonable amount of time. Since the criteria for patent
validity are based on how the work would be viewed by average people in the
field, maybe we should put patent-granting into the hands of people in each
field, who are actually qualified to evaluate such work. Just have the central
patent office keep records and oversee devolved organizations for each
discipline, who actually control which patents are granted and what the terms
of patents in that field are. That way, not only can bogus patents be avoided,
but fields with radically different environments won't be hampered by patent
terms designed for other areas (e.g. software patents could have a much
shorter duration than others).

------
bdrocco
Why don't we turn the patent review process into a public endeavor?

Hacker News / Digg style... vote up the novel patents and down the obvious
ones, while commenting with conflicting patents or prior art... then the
examiner can use this as input.

If the system is perfected eventually that examiner could be eliminated. This
also would create jobs in the private sector as companies would be inclined to
hire contributors to this process to protect their interests. You obviously
need transparency to see who's providing this feedback to prevent abuse, but
that's a minor aspect.

Finally, IMHO software patents specifically deserve more stringent guidelines
for patentability. There's no intrinsic technological worth in a major
percentage of software patents. "It's software, if you want a word processor I
can make you a word processor"... if you want a button to tap and order
something instantly, I can make you a button. Now, if you want a button that
can be clicked by millions of people over a minute, there may be some novel
technology behind that. These differences need to be isolated.

------
punkassjim
I haven't seen anyone present this sort of angle on it, so I'm wondering what
y'all think of this as an idea for reducing abuse of the patent system:

If you're an entity that has bought a patent (but is not its original
inventor), you get two years to implement the invention before that patent
dissolves. And unless you are an active competitor to companies you aim to sue
over said patent, you are not entitled to sue them. Those two things eliminate
the nefarious motives both for selling, and for buying patents.

Those restrictions would not fully apply to the original inventor. If the
patent resides with its originator, then the patent does not have any statute
of limitation before dissolution (perhaps they reserve the right to
bequeath?). But they can't litigate with that patent unless they're an active
participant in the market to which the patent applies.

I'm sure there would be lots of refinement clauses, but those are the broad
strokes, as far as I'm concerned. Does this seem just too pie-in-the-sky? If
so, why?

------
yason
I don't have a definitive answer to how to fix patents or software patents but
I'm pretty sure that patents must somehow be coupled to economical
counterweights. What I do know is that it's way too cheap to obtain patents
and walk waving them around.

There should be a cost of ownership involved that is somehow relative to the
gains from the patent and its value. Patent troll companies exist because it's
too cheap and easy.

I can't imagine the details but ideally this cost would direct companies to
only consider patenting ideas that would exhibit an actual novelty and also a
reasonable profitability expectations. This would validate both the new and
useful aspects.

Filing patents the conveyor belt way would be too expensive and even if given
the money, filing patents without merit wouldn't yield profits. I don't know
how to link merit and money, and I don't know how to not exclude small players
from the market but cost has notoriously a pretty good chance of keeping
things in some control.

~~~
dasil003
Patents are both too cheap and too expensive. Too cheap for capitalized
trolls, and too expensive for individual inventors.

Clearly the problem is that the novelty clause is not being enforced in any
meaningful capacity.

The deeper problem of course, is that a hundreds-year-old institution is just
incapable of dealing with the concept of software. The pace of development is
orders of magnitude faster, and the cost is orders of magnitude lower than the
type of innovation that patent law was originally designed for.

Imagine if you came up with a particularly clever idea in software and you got
two years exclusivity to capitalize on it, assuming that the patent
application included the actual code. If the novelty were properly enforced, I
can imagine how such a system could offer an incentive to innovate and provide
"open source" code to the world at large.

Of course I don't have any faith that the bureaucrats have the capacity to
make such a thing happen, so honestly we're better off without software
patents entirely.

------
teyc
There are two types of patent problems.

One is Google sized, and the other one is patent troll business model.

The Google-sized problem has large legal teams at each others throat. i.e. if
a patent doesn't have sufficient novelty, Google has sufficient resources to
get it invalidated. The definition of novelty should be tightened. I would
love to link it to an objective measure of brainwaves of those familiar with
the arts, looking at the level of surprise and delight at a solution.

The patent troll business model is a shakedown business model, and I'm also
looking at general copyright infringement over file sharing as well. This
requires legislative change to require a "reverse class action lawsuit" if a
firm intends to send out identical complaints to more than say, 100
defendants. This enables the defendants to band together to fight these in the
courts.

------
bryze
I have looked through google patents beta just to see how ridiculous many
software patents are, and though my sample size was small, most seemed pretty
obvious ideas to me. Truly amazing that lawyers can write so much text about
so trivial an idea. The core issue is that the patent office does not have
"people skilled in the art" to bar these patents from being issued.

------
Astrohacker
Software patents are a problem. But perhaps software engineers are biased
about this particular regulation because this is the field they work in. Seems
to me similar arguments can be made about all other patents, and all other IP
laws, and even all other regulations period. They do more harm than good.

~~~
brlewis
My grandfather was a mechanical engineer. He never said anything bad about
patents, and even got one for himself. One is not automatically biased against
patents in one's own field. Software engineers oppose software patents not
because of bias, but because they're harmful.

I don't know the value of patents in other fields. There may be areas where
patents accomplish the purpose they were designed for.

~~~
Astrohacker
Interesting. Thanks for the info. We obviously need better information about
this though - anecdotes only go so far.

------
mkramlich
Wow. I know I was writing my own hand-rolled, wheel reinvented, linked list
implementations, in C, well before 2006. Insanity. How can it not be obvious
that the USPTO is broken with respect to software patents? Let's shut this
madness down once and for all.

------
joelhaus
Here is some sound reasoning on the topic from Larry Lessig: _How creativity
is being strangled by the law_

<http://www.youtube.com/watch?v=7Q25-S7jzgs>

------
jcizzle
It is ironic that people would complain about someone taking ideas from
another article to present them in another way. The more exposure the better.

