

Ask HN: When are Software Patents necessary? - evlapix

I have followed "Software Patents" indirectly for a while now and have even searched the topic on searchyc.com. I know we all don't want them, or want stricter rules. I don't get into the politics of it all. I just want to know what to do. In this case I'm a bit confused about the edge cases those statements don't represent.<p>The reason I ask is because I'm currently working on a project that is very unique (at least I hope). My instinct is that I haven't "invented" anything, but it definitely isn't being done in the way that I intend to, elsewhere.<p>I don't want to be evil about it. I believe in competition and welcome it. But I do want a fair chance at the market for my own business. Maybe there is a business strategy that resolves this? I mostly want to prevent already existing competitors from adopting my ideas/implementations in their own applications quicker than I can build my own business.<p>Also, I'm not letting this concern keeping me from making progress (there are plenty of other things doing that). But, a bit of clarity might help me stay focused when overwhelming myself with concerns.
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VanL
To start with: IAAPL.

In my opinion, there are only three times when software patents are useful:

1\. There is a hard computer science problem at the very core of your product
or service -- one that you have solved, that competitors have not, and that
gives you an advantage. Further, the answer to this problem, once known, is
easily replicable. The canonical example of this is Google/PageRank, and the
closest non-software analogue is drug research. This is what software patents
are designed to protect and they usually do an ok job of it.

2\. You are a large business and you have grown to the point that you are
attracting attention from patent trolls and other large, patent-holding
entities. At this level, the quality of the patents usually doesn't matter
nearly as much as the quantity. It becomes a "my stack is bigger than your
stack" type of negotiation, and having a very large pile of manure is useful
because people are forced to assume there is a pony or two in there. If you
want to see an example of a company that has recently had this realization,
look at Huawei and compare their total number of issued patents with their
total number of patent applications.

3\. You are inventing a completely new type of _hardware_ device and you also
file for patent on the software that interacts and enables it.

Two special cases:

If you are a startup, then (IMO) it rarely pays to file for patents unless you
a) expect to get really big, or b) want to sell out to a big company. This is
a special case of #2. Otherwise, execution trumps IP. Startups are just not
big enough to worry about (or be targets).

It also may pay if you are creating a completely new market - think RSA. If
software patents are part of this, then this is probably a special case of #1.

~~~
Locke1689
_To start with: IAAPL._

I Am A Programming Language?

~~~
ra88it
Not sure if you're kidding, but I think it's _I Am A Patent Lawyer_.

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Locke1689
Thanks, I seriously had no idea.

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chmike
My current analysis led me to the following current (!) conclusion.

A lot of "software" patents are invalid, because they are no real invention in
it. They are nothing more than an idea ownership claim. They are never put in
application in any business. Their purpose is to be land mines, hoping for a
big $ company to accidentally step on it.

On the other side there are patents describing really innovative procedures
and software technology requiring a significant investment to be applied in an
industrial process. The investors would logically want to secure their
investment until break even.

If you feel yourself in the second group, patenting is still questionable. By
blocking competition, one is cutting out the possibility to benefit from it. A
good example is Groupon. A german company copied the unpatented idea and
developped it Germany. They had the skill, they got the market by leveraging
the cultural advantage they had regarding german marketing. 9 month later
Groupon bought them 50M€. Groupon bought a proven team and market without
initial investment and risk. It is a win win transaction. If Goupon had
pattented their idea, they wouldn't get this.

~~~
cletus
Firstly, by the time Groupon got the patent it would've been irrelevant. It
takes years.

Secondly, being in Germany (ie the EU) software patents are largely
unenforceable [1] anyway.

Software patents are almost uniquely a US problem, despite lobbying efforts to
introduce them in Europe, Australia and other places.

But my point is that whether or not Groupon applied for a patent in this case
is basically irrelevant.

The story about software patents is they may end up driving Internet
businesses, which are highly portable, to jurisdictions more friendly to their
activities.

The only beneficiaries of software patents are lawyers and patent trolls (who
have nothing to lose by definition because they don't produce anything).

What would be ironic would be if a Troll patented the business model of filing
and buying patents by the truckload and then suing possible infringers right
before suing every other patent troll.

Oh and regarding Google's PageRank (mentioned elsewhere in this thread), the
patent is basically defensive. It doesn't really disclose the details of it
such that it could be easily reproduced. Plus, even if it did, there's an
awful lot more you'd need to do to mimic Google.

[1]:
[http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...](http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention)

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pyre
Out of all of the software patents granted, probably only 0.01% of them are
arguably patentable. By 'arguably patentable,' I mean that there is actually
debate to be had on the issue. All of the rest of them are frivolous and no
one other than MBAs and patent lawyers think that they are valid (or should
exist).

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evlapix
I can definitely relate to this with a point of reference. A freelance project
I worked on this year was funded by an overly prideful MBA coming out of Sun
Microsystems. He was very stubborn and refused to continue work until he could
secure a patent despite my warning.

$5000 later his lawyers warning came by phone. It is clear to me now that he
was just following some MBA checklist.

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curtisspope
What i find is that patents on software just protect your intellectual
property, it only protects the idea if one of your employees that gets smart
and leaves your company and starts to compete with you doing the same thing
with the same software processes. In software all that matters is the final
result , and so the result can be gone about to acheive in many different
ways. So my advice is to not worry about protecting your IP until you have
enough money to go after those that are infringing on said patent.This is a
good rule of thumb.Also make sure that your process is not "obvious"(example:
one of the most obvious ways to measure liquid is by pouring it into a
container that contains precise measurements/volume), you may be infringing on
someone else's patent :)

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HeyLaughingBoy
1\. You are expecting/hoping to be bought and you want to increase your IP
assets to be more attractive.

2\. You expect to someday become a target of patent suits and you need
defensive patents.

3\. You have something really innovative and it's obvious to the
user/externally visible so you want to patent it before someone else does or
so you can license it. I've never understood the point of patenting algorithms
that aren't visible from the outside.

Besides these three examples, I don't see the need for software patents.
Unlike say, a physical mechanism, software is largely invisible, so trade
secrets should offer enough protection for the vast majority of cases.

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evlapix
Thanks all. Your answers are consistant with the vibe I've gotten from past
software patent discussions on HN. I'll lay the matter to rest.

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TravisCooper
never.

~~~
kljensen
Sometimes?

