
The Supreme Court Should Invalidate Software Patents - praptak
http://blogs.forbes.com/timothylee/2011/07/28/the-supreme-court-should-invalidate-software-patents/
======
timsally
It's not up to Justice Scalia to do the right thing. It's up to Congress. As
Scalia is so fond of saying, garbage law in, garbage decision out. Just
because Congress is incompetent doesn't mean we should put it on SCOTUS to fix
our problems for us.

I'll preempt the constitutional argument by saying that hasn't been made yet.
You underestimate how strong such an argument has to be to succeed. What
SCOTUS could clarify is Diamond v. Diehr. That still wouldn't be the end of
our patent problems though.

~~~
wccrawford
"Just because Congress is incompetent doesn't mean we should put it on SCOTUS
to fix our problems for us."

Actually, that's exactly how the system works. Check and balances.

~~~
prayag
Not really. The court interprets the law as written by the congress. There are
always some checks and balances while interpretation but that's not what the
court is for.

~~~
CDRdude
Is that accurate in this case? My understanding is that the majority of the
time, SCOTUS interprets the constitutionality of laws.

~~~
prayag
In many cases the any court (in almost any country influenced by the French
law) interprets the laws and confirms if the 'new laws' is consistent with the
'old laws/ more basic laws' and not in violation with the basic premise of the
constitutions. Of course this is a over-simplification but this is at the most
basic the function of the courts.

~~~
nkassis
But I believe the US uses Common Law (English) and not Civil law (France and
many other places) system for these matters. So judge can in the US (btw
IANAL) decide if a law is valid or not based on constitutionality and previous
laws.

~~~
prayag
This is absolutely correct and is an important distinction and I do confess
that my statements were not very precise from that regards. However, I had a
long discussion with a law professor at Berkeley where she did agree that the
US Common Law is highly influenced by the French Civil Law, though many law
academic in US will take an exception at the statement. Also, IANAL either but
am taking a few law courses here.

------
niels_olson
Why does it have to be the supreme court? Why can't the industry tell Congress
"This sucks, fix it", the way the military did with Don't ask, don't tell?

VCs just aren't as good at that whole "leadership" thing as much as generals I
guess? (yes, I'm trying to goad someone to action.)

~~~
masklinn
> Why can't the industry tell Congress "This sucks, fix it"

Because the part of the industry which has money and congressional ear either
protected (by a huge patent portfolio) or in the game of using their patent
portfolio aggressively.

> the way the military did with Don't ask, don't tell?

1\. the military is a major reason why DADT was introduced in the first place

2\. apart from Mullen (who mostly punted the responsibility to congress), the
military (active, retired officers really don't count) did not do anything
until well into BO's term, even though repealing DADT was one of BO's campaign
issues

the military and DADT really is not a good example of "this sucks, fix it".

------
MetaMan
As a software programmer I don't agree with this view that software patents
are wrong in principle. There I said it!

Software just as much as hardware can be used to "express" something new. I.e.
to invent something.

An patentable invention is a novel "solution to a problem which is NON-OBVIOUS
to someone skilled in the art".

The real issue with software patents is that they are granted far too easily.
The test that seems to be applied by the patent examiners is "is that new?".
However, they should be asking "given the problem the inventor is trying to
solve is the solution (the invention) really non-obvious to some one skilled
in the art?".

However, even though I think that software patents, with the proper
examination standards are just as valid as hardware patents I think there is a
case for limiting (or even banning) ALL patents - NOT just software patents.

One idea would be the requirement that a working prototype has to be produced
and seen to be working. That, along with a proper non-obviousness test, would
limit companies going for patent "land grabs".

~~~
akeefer
As the article points out, software is also protected by copyright, and the
article doesn't mention that it's covered by trade secret protection as well.
The key difference is that patent protection applies to people who
independently create something, whereas the other two protection methods
don't.

So when I hear engineers say they like patents, first of all I assume that
they've never worked for a company that's been sued for patent infringement
(and that they optimistically assume it only happens to other people), but
then I try to find out why they don't think copyright protection is enough.
Someone still can't legally steal your code without patent protection, because
it'll be protected by copyright and trade secret protections. Even if they
didn't copy your code, but they looked at it prior to implementing their own
version, that would violate trade secret protections.

In that respect, software is protected the same way that authors and musicians
are protected. Authors invent characters, plots, worlds, objects, even words,
but they don't get to patent them. And yet they're still protected from theft
by copyright protections; you also can't just go and make a movie out of
someone else's book without permission, though you can certainly make one
that's similar. If it's good enough for authors and musicians, why isn't that
good enough for software developers?

So to sum that up: software development involves a creative act that deserves
protection, but that's different than saying that the creative act deserves
_patent protection_ , which legally enjoins anyone else from independently
developing the same thing, and which gives person A the legal right to take
away the work that person B has done completely independently (or at least
take away any money they've made from it and prevent them from selling it in
the future). To justify taking away someone's work like that, you have to
either be sure that the work is a copy or derivation of the original, which is
almost never the case with software patent lawsuits, or you have to argue that
even though it's unfair to deprive people of their work like that, that the
benefits of the overall system are positive to society. That's an easier
argument to make if 1% of patent lawsuits deprive people of the product of
their independent work, but it's a pretty hard argument to make when 99% of
them do.

~~~
MetaMan
akeefer. I find it arrogant when someone assumes that disagreement means that
the other person just don't understand. Ok. That aside. Let me go back to the
actual issues here as I see them.

You seem to be arguing that writing software is basically a creative process
which is the same as producing literature and music but software is
fundamentally different in that it goes beyond aesthetics. Software is not
normally used to produce an expression / statement about life / culture or
someone's emotional state etc but is used to process data in such a way as to
have a functional and measureable impact.

Here's a question for you. Your competitor has patented a "solution" which
basically the same as yours and is now sueing you for infringement how would
copyright and / or trade secrets help?"?

Here's another question. Why is a software patent special? As opposed to one
based on expression of a solution to a problem in terms of, say, electronic
circuitry?

Let's say that your wish is granted and software patents are made illegally
but hardware patents are still legal how would we stop companies like Apple
and HTC "gaming" the system by tying the software to physical devices so that
they become hardware patents?

I'm not sure I have all the answers but making software patents a special case
just feels wrong and is likely to have so many legal loopholes as to be
worthless ?

The patent system as currently practiced is broken. That much is clear. It was
supposed to be about promoting innovation and the spread of knowledge. Instead
it seems to really be about granting monopolies. But until the law is changed
companies have to apply for patents if only to protect themselves against
attack.

We need fundamental changes to the patent system which applies to ALL patents.

~~~
o_nate
It's possible that we need reform for other types of patents as well. I don't
know enough about patent abuses in other fields to say. But in software at
least, it seems like the system is clearly broken. Invalidating all software
patents would be a drastic step, but it also might be the cleanest and most
direct way out of the current morass. Of course, many companies would try to
redefine their software patents as some other type of patent, perhaps by
linking them to the hardware, as you suggested. There would need to be some
legal jousting until precedents had been set to determine the outlines of how
the law would be applied. That's what the courts are for. However, it seems
quite likely that the resulting system would be less biased against
innovation, more transparent, and less wasteful than the current system.

------
nostromo
Of all the supreme court decisions, I wouldn't expect this to be drawn mostly
on partisan lines. Yet the author makes a good case that the liberal judges
would invalidate the patents and conservative judges (with Scalia an open
question) would not. Why are conservative judges more likely to support
software patents?

~~~
shapoopy
They'll tend to see them as protecting the interests of business, which has,
for whatever reason, become part and parcel of supporting the "free market" in
contemporary American political culture.

~~~
amitparikh
and that's the biggest hypocrisy... what they are really supporting are the
interests of _existing_ businesses.

------
scott_s
I find this argument unconvincing: _Second, writing software is an individual,
expressive activity at least as much as it is an engineering discipline._

The implicit argument is that creating software is inherently more _creative_
than, say, creating a mechanical device. Yes, I take enjoyment in crafting my
code so that its model is no more complex than it has to be, and in
refactoring the code so that it is as clear as aesthetically pleasing as
possible. But I imagine that people who design physical items feel the same
way about their work.

Please note that I am not disagreeing with conclusions - I have said nothing
about his conclusions. But I think the overall argument is stronger without
this one. With it, it feels like he started with a conclusion, and used
whatever arguments lead to that conclusion.

~~~
jerf
Actually, you can sort of formalize the argument: Software is eligible for
copyright. Therefore, the law _already_ recognizes that it is an expressive
activity.

A mechanical device is _already_ not eligible for copyright.

Software is the only thing I know covered by both patents and copyright.
Sometimes people deny this to me when I say this online, but I haven't yet
heard anybody come up with a concrete example that stood up to scrutiny. Is it
really so stunning that two systems never designed to mesh, patents and
copyright, turn out to in fact _not_ mesh and produce a big mess? Is it really
so horrible that software be only copyrightable and not patentable? Very few
people are arguing that software should not be covered by any sort of IP
protection, and I suspect the non-zero set of such people would be further
shrunk if patents were removed from the equation. (Though I also guarantee,
not eliminated.)

~~~
scott_s
Regarding my initial point, I think software falls under copyright solely
because its written - I don't know if that's the argument now, but I imagine
that was at least the initial reason for granting copyrights. Personally, I
can find no meaningful difference between designing software and designing a
mechanical device. For that reason, I don't like that argument.

Your main point is interesting, but I'm not sure if I can completely go along
with it. Consider, say, a mechanical latch. The design schematics for it fall
under copyright. The latch itself falls under patent. The process for making
the latch is to look at its design, and change your tools around to produce
something of that design. Looking at it this way, I can see how software could
be considered its own design schematic - yes, I'm aware that external
documentation exists, so it's not a perfect analogy. But with software,
there's no separation between "thing used to describe what should happen" and
"thing that happens."

I want to agree with your argument because it would provide a clean solution
to the problem, but I don't think I can. Rather, I think the solution to the
problem may require a results-oriented approach. That is, it may require us
(as a society) to say, "The current patent scheme regarding software is
harming innovation. We are going to change how patents apply to software to
avoid this harm."

~~~
jerf
"Regarding my initial point, I think software falls under copyright solely
because its written"

No. That's a degree of misconception that I can't fix in an HN post. Copyright
has little to nothing to do with the medium in which an expression is fixed.
And with all due respect, the rest of your post is so muddled w.r.t. what
copyrights really are that it's hard to even address what's there. (I truly
mean "with all due respect", but I also truly mean that it is very muddled.)
You really ought to spend some more time studying the topic, including such
basics as what exactly copyrights are and what, _exactly_ , they cover, and
why.

~~~
scott_s
What I meant was, "it's fixed _somehow_ ". I assume the original reasoning for
why code is copyrightable is that when I write, say, a book, that is
copyrightable. Code is written down just like a book is, so it follows that
copyright will apply. I'm not saying that's the legal reasoning. I'm saying
that was probably the initial gut-reaction to why copyright should apply to
code, and the legal reasoning came afterwards.

I have spent time with the various forms of IP, and I feel I have a pretty
good grasp of what copyright is. I can't correct any misconceptions unless you
point them out - although I have a feeling it's more that I did a poor job of
expressing myself.

Attempt the second: with non-software inventions, you can have a copyright on
the documents that explain how to build the invention. You can have a patent
on the invention itself. Software can be both copyrighted and patented. You
object to this because it's the only instance we have of something that can be
both copyrighted and patented - it's a unique exception. I responded to this
objection by pointing out that software is also unique in that what you use to
describe exactly how to make the invention is the invention itself.

------
tsotha
Software patents are a policy issue, not a constitutional question. This needs
to get fixed in Congress.

~~~
kenthorvath
I'm not so sure this isn't a constitutional question.

In Article I, section 8, the U.S. Constitution:

 _Congress shall have power . . . 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._

Note that Congress is only given this power in order to promote the progress
of science and useful arts. If one can effectively argue that software patents
have the opposite effect, and in fact hinder the progress of science and
useful arts - and I think such an argument can be made - then it seems
reasonable that the courts should strike down software patents as
unconstitutional.

~~~
scythe
The Supreme Court does not evaluate the _intention_ of a law. Remember, the
very process of judicial review was introduced _after_ the Constitution was
written, so the parts of the Constitution where it explains why it is written
the way it is are rather clearly not policies.

That said, Title 35 of the United States Code states:

>Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.

It is difficult to see how software patents could really fall under this. I
don't know of any software patent describing a "process" which is not simply a
mathematical algorithm (unpatentable), and they certainly don't describe a
machine, manufacture, or composition of matter.

The patent described in _Diamond v. Diehr_ is really not at all what we would
today consider a software patent; it's not really similar to the patents on,
say, wavelet compression in any sense beyond "there's silicon involved". It
was a process of molding synthetic rubber, not pushing bits around.

~~~
kenjackson
Any process is arguably a mathematical algorithm. The process by which I
sanitize water can be expressed as a mathematical algorithm, where the various
components play the role of various mathematical constructs.

And therein lies the problem. If you read SW patents they're usually pitched
as processes over a computer device. This makes it hard to untangle from any
other process that acts over some matter.

With that said maybe we get rid of processes altogether. I'd say get rid of
everything except drug patents. But that would require congress to sign off.

~~~
scythe
>If you read SW patents they're usually pitched as processes over a computer
device.

The problem is that a computer is _itself_ a mathematical construct. If the
patents really wanted to describe a process on a device, they could not use as
their "device" a Turing machine, because that is not a physical device in the
sense of water sanitization. Whereas water sanitization requires the physical
presence of water, a program can exist totally in theory as some bits in
Wolfram's 2-state-3-symbol.

That is, unless you believe the mathematical universe hypothesis, but I don't
think the Court's job is to decide whether the Universe exists!

I am also not a lawyer, nor formally educated in the field of law. I do know a
bit about theoretical CS, though.

~~~
kenjackson
Computers aren't mathematical constructs. They're simply devices, like a water
bottle. But what they can compute, at least as best we understand it, is bound
by what is computable by mathematical constructs, such as the lambda calculus.

But with things such as DNA computers and nanotechnology, could one argue that
the universe is a computer? Can everything just be described as a construction
of objects in the real world with stimuli applied to it?

To me it just feels like a really slippery slope. Just say "medical drugs" and
leave it at that.

~~~
scythe
>Computers aren't mathematical constructs.

A _particular_ computer is not a mathematical construct. The _concept of a
computer_ , however, is a mathematical construct; there are no physical
characteristics necessary to identify something as a "computer" for the
purposes of e.g. arithmetic coding. I could perform arithmetic coding with
nothing but a pen and an extremely large amount of paper.

~~~
kenjackson
_I could perform arithmetic coding with nothing but a pen and an extremely
large amount of paper._

BUT a pen and paper. A patent wouldn't be just the algorithm, but also a
writing device and paper.

Everything is a theoretical until you do it in practice. You can't patent a
cool 3D rendering algorithm. But you can patent a device that uses it and
renders the output to a computer screen. This is how patents are written.

~~~
scythe
> A patent wouldn't be just the algorithm, but also a writing device and
> paper.

Well, yes, and if the patent says "a writing device and paper" it might be
valid, because paper is a specific construct, and the patent obviously does
not cover such things as e.g. a piece of cloth.

Why do you use bzip2 and not bzip? Well, because arithmetic coding is covered
by a supposedly valid patent. However, bzip can be executed by hand, or on any
multitude of devices satisfying the requirements for Turing-completeness. The
idea that a patent should preclude the writing of bzip, a purely mathematical
construct, is absurd. bzip runs on an abstract device.

You could, for instance, specify a specific processor in the patent, but this
is not done. You could not, however, specify a processor architecture, because
this is also a mathematical construct, which can be carried out on paper.

Let me give you an example: My uncle knows that a cell phone is a computer.
How? Well, I told him, and I'm a researcher. How do I know? Well, originally,
some professor told me, and he's a professor. How does he know? Well, he or
his colleague studied the literature indicating that an ARM processor is
Turing-complete... which, at the end of the day, is a totally mathematical
consideration, independent of the physical world except perhaps the brains
which analyze it.

>But you can patent a device that uses it and renders the output to a computer
screen.

No, because each independent part of this is some prior art. The
representation of data on silicon is long since public domain, the display of
silicon data on a screen is long since public domain, the x86 architecture and
the GPU architecture are mathematical, and the algorithm itself is
mathematical, and the combination of these is not itself novel or interesting:
it is not even performed except by the end user, who must merely double-click
a game icon and shuffle some bits around with a mouse.

~~~
kenjackson
_Let me give you an example: My uncle knows that a cell phone is a computer.
How? Well, I told him, and I'm a researcher. How do I know? Well, originally,
some professor told me, and he's a professor. How does he know? Well, he or
his colleague studied the literature indicating that an ARM processor is
Turing-complete... which, at the end of the day, is a totally mathematical
consideration, independent of the physical world except perhaps the brains
which analyze it._

Actually I don't think its technically "Turing Complete". it doesn't have
unbounded tape. In fact any given ARM processor will have a fixed addressable
limit. I can certainly compute a class of things in theory that the ARM
processor can't compute. There are real HW considerations that you need make
when you deal with an actual physical processor that don't exist in the
theoretical model.

And this sidesteps questions of complexity.

But this is similar to a patent on a new wing design. You can say it is simply
a mathematical model of airflow and such. But the pudding is the creation, not
the mathematical model of the wing.

~~~
scythe
>Actually I don't think its technically "Turing Complete". it doesn't have
unbounded tape. In fact any given ARM processor will have a fixed addressable
limit. I can certainly compute a class of things in theory that the ARM
processor can't compute. There are real HW considerations that you need make
when you deal with an actual physical processor that don't exist in the
theoretical model.

Obviously -- it is a finite state machine, but this doesn't mean any less that
it is a theoretical model.

>But this is similar to a patent on a new wing design. You can say it is
simply a mathematical model of airflow and such. But the pudding is the
creation, not the mathematical model of the wing.

No -- the wing is a physical object. I can hold a wing in my hand. Conversely,
a patent on a wing design does not mean that I cannot use that wing design in
a computer simulation of an airfoil. But a patent on bzip does mean,
supposedly, that I cannot run bzip on a virtual machine. In other words, the
wing design is the point, here: you could patent a specific device for running
bzip, but you cannot patent bzip on all computing devices. Which, I suppose,
might help to explain my point.

------
felix0702
The bottom line: Supreme Court will never invalidate software patent.

Image this if Supreme Court does invalidate software patent.

A big sticker will be on the US map and shows, “Welcome to take all software
inventions you want. All my software inventions are yours. Oh. BTW, yours in
your country are still yours!” You see how this affects global competitions in
software and finance industries.

However, the current patent system still has room for improvements.

1\. Software innovation changes too fast. The patent length should cut to 5
years (excluding the waiting time to get the patent). I have discussed this
previously, <http://news.ycombinator.com/item?id=2409917>

2\. Patent non-practicing entities (excluding public research institutions and
schools) should be banned to sue anyone. However, even so Patent Trolls still
know how to get around this. This just increases difficulty, but definitely
won’t stop them.

3\. Claim description has many ways to interpret. This is where the money is
spent in litigation. If a standard structure and a list of words are allowed
to be used in the software claim description, this probably makes easier and
faster to find out if a software patent is valid. But I have to admit this is
a hard problem to solve.

------
cft
Big companies are interested in getting rid of patent trolls, because the
defense against trolls is asymmetric. They would like a system that allows
them to attack or defend against other large companies, while they remain
immune from trolls, such as Intellectual Ventures and its off-springs, like
LodSys. One solution would be a 2 year expiration on software patents. Another
idea would be to demonstrate "substantial" sales for renewals.

------
andreyf
That would be nice, but I think that when there are big companies and billions
of dollars at stake, things aren't so easy.

~~~
sedev
That's the whole point of the article: the SCOTUS members don't have to be re-
elected and are not going to be lobbyists after leaving the bench - they
actually _can_ do such a thing on principle, that's their whole role. Please
read the article.

~~~
reverend_gonzo
However, that's not their job. The supreme Court's job is to make a decision
based on the laws set on the books. They can't say, "Well, this version of the
law would be better, so we'll go with that, but rather "Thus is what he law
says".

We need to educate Congress. Better yet, we need educated people in Congress.

~~~
sedev
I would argue that that is in practice their job, especially given the amount
of ambiguity, both unavoidable and superfluous, in the legislation-as-written.
I actually have a very strong dislike for Scalia because I think that his
legal 'originalist' philosophy is pretty much like biblical 'literalism' -
it's an interpretation that is (a) convenient to him and (b) denies the
validity of all other interpretations in an underhanded way.

~~~
tsotha
I find originalism to be the only reasonable way to interpret the document. If
the constitution doesn't say what you want it to say, then change it. Once you
start changing the meaning of the words you defeat the purpose of having a
written constitution.

~~~
sedev
Don't look now, but language, culture, and technology all change. Change right
out from under the most carefully-written of legislation, in fact. Adapting to
the now is what I think is the "only reasonable way" to come at the document -
and has the advantage of admitting that it's an interpretation, instead of
attempting to sneakily de-legitimatize all other interpretations.

But you go ahead and ask James Madison what he thinks about LulzSec.

~~~
tsotha
>Don't look now, but language, culture, and technology all change. Change
right out from under the most carefully-written of legislation, in fact.

Yes, and so what? There's a huge gulf between legislation, which is meant to
be crafted for the needs of the day and can be easily modified, and a
constitution, which is a blueprint for how the government functions. Human
nature hasn't changed in the last 300 years. Not one bit.

>Adapting to the now is what I think is the "only reasonable way" to come at
the document - and has the advantage of admitting that it's an interpretation,
instead of attempting to sneakily de-legitimatize all other interpretations.

The other interpretations _are_ illegitimate - there's nothing sneaky about
it. They're nothing more than cruft added by people who didn't have the votes
to actually change the document. "Adapting to the now" is _precisely_ the
purpose of legislation and also the reason the constitution places boundaries
on that legislation.

------
brlewis
Read Bilski people. Overall it was 5-4, but if you read the majority and the
dissent, it was 9-0 on this sub-point: that State Street (not a Supreme Court
decision) is bad precedent, and Benson, Flook and Diehr are good precedent.

Diehr is only muddied because people choose to muddy it. I'm working on an
essay that details this now.

------
euroclydon
The SCOTUS ruled against the patentability of an algorithm which codified a
certain hedging strategy in the Bilski case in 2010. This was believed to
reinforce the invalidity of many software patents.

<http://en.wikipedia.org/wiki/In_re_Bilski>

~~~
jdp23
As the article discussed, Bilski was decided on very narrow grounds; and it
relates to business model patents, not software patents.

------
draggnar
That as we enjoy great advantages from the inventions of others, we should be
glad of an opportunity to serve others by any invention of ours, and this we
should do freely and generously. - Benjamin Franklin

------
scottmp10
I think that it will be very difficult to have serious patent reform for the
software industry without having significant effects on other industries. So
while it seems like the software industry is generally behind getting rid of
patents, the changes will be very difficult to isolate to software and
companies outside the field will likely oppose any significant changes. FWIW,
I hope they make significant changes for software patents soon.

~~~
mikeknoop
Can you speculate some companies who would take issue to the abolishment of
software patents?

~~~
chollida1
I would imagine it would be anyone, or industry, who has a significant patent
portfolio who worries that invalidating software patents would weaken their
patent position.

Both in dollar terms and legal terms.

~~~
scottmp10
Yes so there are likely some software companies that might have issues
(depending on what the changes looked like) such as Microsoft, Oracle, IBM
(not sure if these companies would object or not, just citing companies with
large portfolios). Some non-software companies like pharmaceuticals almost
certainly would oppose changes that would affect their ability to exercise
their patents.

Edit: A better example might be a company like Intel that has a lot of
hardware patents. It is potentially difficult to change the patent laws to
prohibit software patents without affecting hardware patents.

------
Eliezer
"How to define personhood is a legislative issue, and in the U.S. system, of
course, laws are made by the Supreme Court."

\-- Brad Templeton, speaking of Artificial Intelligence

------
aab1d
In India we don't have the concept of software patents, unless some sort of
hardware is involved. I am guessing that this is way better than the system
where all business methods are patentable. This kills innovation. We should
all just petition for change.

------
doctoboggan
>Only if this fact becomes common knowledge, in the way that everyone knows
doctors hate malpractice lawsuits, will we have any hope of the Supreme
Court—and specifically Justice Scalia—doing the right thing.

Yet we still seems to have malpractice lawsuits all the time.

------
entrepreneurial
Someone should just patent the patent: "conferring a right or title, esp. the
sole right to make, use, or sell some invention" _Joke_

------
Finbarr
I've been thinking this a lot recently. You can't patent software in the UK
and it seems ridiculous that you can in the US.

------
pg_bot
A simpler solution would involve giving the defendant of patent litigation the
option of making their suit winner takes all.(All of the court fees within
reason are paid by the loser) This would keep software patents but reduce
frivolous lawsuits.

~~~
ohyes
And make it impossible for the little guy to, for example, sue Microsoft due
to the potential huge legal fees.

The issue here is that patents are being used for extortion, and none of these
cases ever end up going to court.

Maybe what would fix this would be to not allow private entities to pursue
patent infringement cases with their own lawyers. Create a Bureau of patent
infringement.

Make it so that when a patent is infringed, you file a claim with the Bureau,
and they asses validity of patent and assign damages. No litigation, no
settlement, no patent lawyers involved.

Perhaps we can defeat bureaucratic inefficiency with more bureaucratic
inefficiency.

~~~
pg_bot
How would that change make it any more difficult for a little guy to sue a big
corporation? I think you have missed the part of within reason, Microsoft
wouldn't be able to put an individual on the hook for all of their court fees
just those that a judge deems valid to pay for the suit. This change would
make the patent holder vet the validity of their patent before they can
automatically sue, which is the goal we are looking for. A defendant would
only exercise the option if they believed the claim to be frivolous for fear
of losing in court. For legitimate cases the parties either go to court or
settle.

------
Som
...and stop the software cost by transactions/servers/CPU's.

------
antidaily
Here, I'll predict the vote: 5-4 not in favor.

------
Daniel_Newby
This will never happen.

Consider a mechanical timer in a washing machine. A timer that produces a
novel washing cycle is certainly patentable.

Consider a chain of electromechanical relays that produces the same cycle.
Clearly it is just as patentable, and could be covered by a well-written
version of the preceding patent.

Consider the transistorized version of the preceding, with the relays replaced
by transistors. Patentability: ditto.

Consider a mask-programmed processor that produces the same cycle. (Mask-
programmed means the program is hardwired into a metal pattern.)
Patentability: ditto.

Consider a flash-programmed version of the preceding that produces the same
cycle. Patentability: ditto.

Consider a volatile memory version of the preceding that produces the same
cycle. Patentability: ditto.

Why does this matter? Because in the coming age of nanomachines, "software"
will frequently be embodied in custom mechanical machines, chemical reactions,
interference patterns of light, and so forth. If software is unpatentable,
then neither can you patent the special sauce that turns dirt into
nanomachines.

~~~
nate_meurer
Your contrived chain of analogies ends in a total strawman. I think you
intended the last item on your list to be pure software, but it's not. It's
just an electronic version of the first item.

No one is arguing that a complete electronic timer should not be patentable.
The argument is whether the software alone should be patentable.

The software by itself is NOT a timer. The timer's software is only the idea
of the timer; it is the instructions, the observation of which allow the
physical timer to function. There must still be a physical timer -- an
assembly of physical parts that follows programmed instructions to provide a
function. That entire assembly is what should be patented.

The bare idea of the timer -- the steps that the timer takes while it's
working, should not be patentable. That's what the article is proposing.
Nowhere in your analogies is bare software addressed.

~~~
Daniel_Newby
_I think you intended the last item on your list to be pure software, but it's
not._

You have hit the crux of the discussion. I am defining software as a tangible
thing, existing as a pattern of matter and fields. It is not abstract,
virtual, or ineffable. What you are talking about ("pure software") are ideas
about the software's principles of operation. The mathematical and logical
ideas by which we understand a process are not patentable, but their tangible
embodiment (software) is patentable.

Consider an example of the difference. Prime numbers are abstract ideas that
can be used to create difficult-to-solve problems, and thereby used for
cryptography. As abstract ideas, they are not patentable. Someone could embody
those ideas in a logic machine (like the RSA algorithm) and patent that. But
somebody else could embody those ideas in an analog laser interferometer and
patent that, without conflict with the other patent.

 _No one is arguing that a complete electronic timer should not be
patentable._

And that is exactly what is covered by a valid software patent. Such patents
claim something like "Claim 1: A stored-program logic machine, configured to
provide the process described in claim 2." The configuration of the logic
machine is the software.

A well-written patent will cover all variations of the software that are
"obvious" to "a person skilled in the art". This generality is why all patents
are so painful to evade, not just software patents.

~~~
nate_meurer
> "I am defining software as a tangible thing, existing as a pattern of matter
> and fields."

Ok, but that means you're not talking about software patents any more. The
U.S. patent office currently cares nothing about patterns of matter and
fields.

> "And that [a complete physical timer] is exactly what is covered by a valid
> software patent."

No, wrong. That's how it _should_ be, but it's not, and that's the problem.
Officially, patent law isn't supposed to allow patents on "abstract ideas",
but due to incomplete guidance from the courts, the requirements have been
diluted to nothing. Right now in the U.S., a software patent application can
satisfy the requirements by specifying any trivial physical step. Most
software patents specify only a "computing device" on which the software is
used. Well gee whiz, guess what that covers? You got it, everything! It's
useless language; there's no narrowing, no added specificity. It would be just
as usefull to specify "software in Her Majesty the Queen's service". As a
result, for the past 20 years the USPTO has essentially been granting patents
on pure software.

A patent on a laser interferometer that encodes instructions is no longer a
software patent; that would be covered by a mechanical patent. And this patent
certainly would be in conflict with any software patents that covered the
software encoded thereby, if the interferometer were ever put to use in a
product.

~~~
Daniel_Newby
_The U.S. patent office currently cares nothing about patterns of matter and
fields._

 _Right now in the U.S., a software patent application can satisfy the
requirements by specifying any trivial physical step. Most software patents
specify only a "computing device" on which the software is used._

So which is it? Physical embodiment = not abstract.

 _A patent on a laser interferometer that encodes instructions is no longer a
software patent; ..._

I was talking about interference machines that use the wave properties of
light to do computation _without the use of digital logic_. With these
machines, abstract mathematical approaches are reduced to practice by means
other than software. The software patent does not somehow magically fence off
an area of abstract thought. What it fences off is a particularly convenient
and valuable area of concrete machinery.

~~~
nate_meurer
> "So which is it? Physical embodiment = not abstract."

No, the point is that there effectively is no "physical embodiment"
requirement. Adding magic words like "computing device" or "system and method"
to a patent application has no real effect, because ALL software is run on a
"computing device" or a "system". This does nothing to narrow the scope of a
patent, or to tie it to any distinct physical implementation. The ONLY
distinct entity in such a patent is the algorithm.

This will become immediately clear to you if you read any number of software
or business method patents. You seem to have created your own alternate
reality here, where software patents are necessarily like mechanical patents.
They are not.

> "I was talking about interference machines that use the wave properties of
> light to do computation without the use of digital logic."

Fine, whatever. Any patent that covers your thingamajig in its physical
manifestation will have to be a proper mechanical patent, complete with design
drawings. As a separate matter, the computation performed by the machine can
be expressed algorithmically, and that algorithm is what could be covered by a
software patent, completely apart from whatever machine implements it. That
patent can then be asserted against any other use of that algorithm regardless
of the physical system that uses it.

> "The software patent does not somehow magically fence off an area of
> abstract thought. What it fences off is a particularly convenient and
> valuable area of concrete machinery."

No, again, that would be a mechanical patent. Have you really not ever read a
software patent? Go look one up; maybe start with one of the patents on LZW,
or maybe amazon's 1-click patent.

------
WalterBright
Yes, please.

------
petegrif
This is a simple minded piece. It is so riddled with half digested bs I don't
even know where to start with it. I guess I'll just pick on something so
blindingly obvious that anyone with more than one braincell (which apparently
does not include the author) would already find beyond question.

Copyright protects the expression of an idea. This is an absolutely excellent
form of protection when the expression of the idea is a huge part of its
value. A piece of music, or a novel IS its expression. If you rewrite James
Joyce's Ulysses in your own words you have lost Joyce's expression which is
precisely what people value in the reading. Hence a work in which the
expression is critical to its value is well protected by copyright.

Software is not such a work. If someone spends years refining an invention and
someone else reverse engineers it and yet changes the expression of the work
copyright is no protection whatsoever because no-one using the work gives a
rat's ass about the underlying expression.

The idea that copyright is a meaningful protection for software is so
laughable that anyone daft enough to take the idea seriously is clearly so
appallingly badly informed that they don't deserve to be taken seriously.

~~~
o_nate
What if I was the first person to write a murder mystery in which the butler
did it? Could I patent that plot device so no one else could use it?

The point of copywriting code is not because people care so much about great
coding style or variable names - it's to prevent the laziest forms of copying.
If someone wants to invest the time and effort to reverse-engineer and rewrite
a piece of software without copying any of the original code, the cost of
doing so is sufficiently prohibitive that it might be easier just to rewrite
it from scratch.

