
Richard Stallman: Let’s Limit the Effect of Software Patents - mtgx
http://www.wired.com/opinion/2012/11/richard-stallman-software-patents
======
redsymbol
This is really impressive. It's a cogent, insightful articulation of the
current situation, including the realistic constraints (e.g. that Supreme
Court ruling re: private privileges), and a practical suggested solution that
could actually be implemented in the current political environment. Don't
always agree with Stallman, but this one's well done.

~~~
fragsworth
It may even be more practical than hinted at in the article. You have to get
massive support (either from industry or special interests) for legislation to
happen in any way.

Industry - Google, Apple, Microsoft, and others would probably be in favor of
something like this, because it would promote more development on their
systems if developers feel completely safe from patent trolls. It would also
be seen as a good publicity move from any of these companies.

~~~
argv_empty
_It would also be seen as a good publicity move from any of these companies._

It would definitely help convince me of the sincerity of their claims that
they maintain their software patent portfolios for defensive purposes.

~~~
duaneb
The fact is, it's just bad business not to patent software as a defensive
measure against competition, at least when you make enough money for the
people with patents to sue you first. This doesn't mean anyone likes being in
that position: I think some of them, at least, would appreciate being able to
implement competing technologies without licensing them.

~~~
argv_empty
Yes, I'm well aware that defense is _a_ reason for patenting things. I think
it gets much easier to see that as the primary reason for doing so when the
companies which do it the most also work to reduce (as opposed to increasing
or exercising) the offensive power of patents.

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runningdogx
This makes no sense. Is Stallman so focused on software that he isn't
considering the implications of continuing to apply broken software patents to
hardware?

FPGAs? Is an algorithm implemented on a FPGA a software or hardware
implementation?

Sufficiently popular software algorithms like mpeg4 (including avc) are often
implemented in ASICs for speed. Stallman's suggestion does nothing to help in
those cases.

What if Intel introduces new instructions that assist with some patented
algorithm but do not carry out the complete algorithm? Software completes the
algorithm using the chip instruction. Is that covered under Stallman's
software patent immunity proposal?

The dichotomy between software implementations and hardware implementations is
unhelpful. If you oppose software patents on principle, whether because you
think they're harmful or because you think they're math and are not supposed
to be patentable in the first place, why let the camel's nose into the tent by
campaigning to allow hardware (ASIC?) implementation patents, but not allowing
pure-software implementations?

Perhaps this is better framed as an economic argument. If cost were no object,
more algorithms would be implemented in ASICs. There's a limit to the total
chip area you'd want to fit into a computer, but a lot of algorithms could be
implemented in a few custom ASICs. It's likely that some of those algorithms
would be covered by patents. Stallman's proposal seems like discrimination
against algorithms that are important enough to make faster execution worth a
lot of money.

If software patents are not valid, and I don't believe they are valid, then
allowing them to apply to hardware implementations is just applying a band-aid
and punting on the real issue. Stallman's proposal may be pragmatic, in that
it reduces risk to most start-ups and other entities worried about violating
patents in software, but it sustains the confusion about what software patents
are and whether they can be valid. I think there's more at stake than the
money at issue in patent lawsuits every year. I think broad appreciation of
the value of open culture, and recognition that algorithms should be part of
that, is worth more than any extra value companies might be able to extract
from hardware implementations of patented algorithms due to artificial
monopolies created by patent protection.

~~~
pjscott
It's not a perfect solution, and (like most things in the patent system) it's
an obvious ugly hack, but it would be a lot better than the status quo. Do you
have a realistic alternative that's better?

(I just realized: you may be in the dubious position of being less pragmatic
about something than Richard Stallman. It's not often someone can say that!)

~~~
prostoalex
This "ugly hack" is a hole you can drive a truck through, and one can be
pretty sure the patent lawyers will find an aircraft carrier, load it up with
trucks, and drive through it collectively.

It's silly to assume no change in behavior, any legal counsel from that point
on will advise in favor of patenting the hardware implementation, and instead
of patented software running on commodity hardware we'll end up with patented
"appliances" and "reference hardware implementations" with broad claims
extending to other types of hardware implementations.

~~~
zanny
I agree with this, mainly on a simple premise:

If you start an arguement at two extremes, and give ground where your
opponents do not, you weaken your position and put the compromise between them
more in their favor. And when you keep giving ground, you keep showing a
willingness to concede defeat, and your opponents will just ignore you. If you
stand your ground, you are a stalwart wall of opposition that needs to be
confronted, rather than ignored, eventually.

In many cases (gay rights, civil liberties, patent law, equality / freedom)
that stalwart position may require multiple generations. You don't get instant
results when dealing with the entrenched status quo that is horribly wrong.
But when you give ground you render your entire argument and stance
illegitimate because your opponents can dismiss you as you keep conceding
ground and giving up on your positions.

Patents, as a whole, are archaic and bad. The turnaround time for any new
discovery is now a matter of days, or months, rather than the years it would
take in centuries past to distribute and market goods and services. In the
digital world, everything is already information, it is all number patterns in
electrical terms, and we _had_ a track record of _not_ letting people
monopolize knowledge and information in the realm of mathematics before, and
the digital era should never have been any different in my opinion. Of course,
it is my opinion and all. But I remain dilligent in my stance for it.

I have lost a lot of respect for Stallman because it seems in recent years his
dialogue has propagated a lot of "buts" in his arguments. He concedes ground
on what he believes in and _that_ illegitimizes him more than anyone calling
him cookey would in my book.

~~~
TimGebhardt
The classic name for the "Keep moving the extremes so people's opinion
converge on the gradually moving middle" is called the Overton window and
politicians try to employ it all the time:

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

------
growingconcern
Surprisingly realistic suggestion from the "radical" Richard Stallman.

~~~
Evbn
RMS has been in the business of providing realistic solutions to problematic
legal environments for 30 years.

Nothing to be surprised about.

~~~
noarchy
Agreed. The GPL (in all of its various incarnations), for all of its faults,
is a fantastic example of a practical, usable solution to a real problem.

------
kevingranade
No one seems to have picked up on the strategic impact of the proposal, it
neatly excludes many of the more sympathetic pro-patent entities from the
picture, in particular the pharmaceutical industry and hardware manufacturers.
They needn't bother to oppose it, because it has no effect on them, whereas
they may oppose further barriers to granting patents on principle just in case
it affects them.

Personally I'm not extremely in favor, as I'm anti-patent/copyright in
general, but it makes sense for someone whose primary goal is software
freedom.

------
sounds
tl;dr: "We should legislate that developing, distributing, or running a
program on generally used computing hardware does not constitute patent
infringement."

He goes on to say "generally used computing hardware" is the opposite of
"special-purpose hardware" but I think that definition needs to be really
explicit.

Of course then, would anyone in Congress actually pass such a bill?

~~~
sageikosa
Is a GPU "special-purpose hardware" when used for graphics, but general
purpose when used for GPGPU functions?

~~~
chii
I think that a scientific/mathematical definition would work in this case - if
you can simulate a turing machine on that particular machine, then it is
considered a general purpose machine. Otherwise, its a special purpose
machine.

~~~
algolicious
But you can't actually simulate a TM on any machine with a fixed amount of
memory. And any "special purpose" computing hardware would have at least a
little memory. So I don't think that distinction works. Unless it only applies
to machines with expandable memory? Technically, if it were hot swappable, the
memory would be unbounded. But nowadays, the SD slot on phones is often under
the battery, if it exists at all.

~~~
jimktrains2
I mean, you can't simulate the weather exactly, but that doesn't stop us from
writing "good" approximate simulations. It's not hard to simulate a TM, even
if we can't build a real TM (unbound memory).

------
6ren
rms did a great job with GPL, fighting copyright with copyright - though v3,
with patent conditions, has not seen universal adoption (because too late? or
a more fundamental problem?)

A distinction with surgeons is their work is not reproducible at near-zero
cost; so shielding affects only _n_ surgeons, not all developers and their
users (i.e. "most people"). Also, people generally don't die because
developers can't code a particular technique. He might get a foothold in
software in surgical _equipment_ , but I bet the shield doesn't apply to them.

------
edouard1234567
I don't agree with Richard. I don't see the case for treating "software" and
"hardware" differently. Patents were invented as a way to protect intellectual
property and to derive revenue from it. They are an incentive for innovation.
They're just being abused mostly by patent trolls.

Patent trolls acquire a large number of bogus patents, sue companies and in
most cases settle confidentially. Most companies don't like risk especially
when their core business process is threatened. So they settle even if there's
a good chance the patent could be challenged. It's not a fair fight...

To limit this abuse we could make patents non transferable meaning you can
sell the right to use the invention but you cannot sell the invention. Some
will argue that patent trolls could work on behalf of inventors to help them
enforce their patents but I think most inventors are more reasonable than the
lawyers specializing in patent trolling. There might also be a way to mitigate
this risk with some regulation, ideas?

~~~
chime
Amazon would still be the only site offering 1-click checkout and Apple would
still have the only phone with Slide-to-Unlock. These are just as important as
patent trolls.

~~~
edouard1234567
What do you mean by as important as patent trolls? Amazon patented this
process and is using it for the benefit of their customers, what's wrong with
that? Another company could offer 1-click checkout if they

\- pay royalties. \- or own another patent amazon is infringing as a mean to
disuade amazon from suing.

Maybe the problem here is that these patents you are referring to seem overly
simple and shouldn't be somebody's IP but what seems trivial and intuitive
today could have been very innovative at the time they were patented.

~~~
coldpie
> Amazon patented this process and is using it for the benefit of their
> customers, what's wrong with that?

What's wrong with it is that no competitors can use the same idea without
paying Amazon (assuming Amazon would even agree to license it).

What is the benefit to society of preventing someone other than Amazon from
implementing 1-click checkout? Do you really think that "innovation" would
never have been created without the protection of patents?

~~~
edouard1234567
I agree that innovation should be more openly shared and licensing should be
somehow regulated but I do think there will be less innovation in a world
without patents especially in a capitalist world. A lot of the innovation is
fueled by research financed by the private sector. Remove the incentive to
invest and you reduce the financing and as a result innovation.

------
teyc
I suggest that rather than limiting effects of patents, it is easier to
exclude obvious ideas. By this, if two identical ideas are submitted as
patents within a designated time frame, then the patent is not novel enough.

This has several advantages:

1\. The number of educated people have risen considerably that we are filing
more patents in a decade than the past 100 years. Even if there weren't patent
protection, ideas will still continue to be created. By getting rid of the
first past the post problem, we are effectively saying we will not grant an
exclusive patent for something that someone else could have invented.

2\. This scheme does not impact on the R&D that requires long term investment.
e.g. pharmaceuticals.

3\. It makes "idea patents" easy to invalidate. e.g. using a phone to play
music.

~~~
chii
unfortunately, obviousness is a very difficult thing to test for.

May be a test for obviousness is that an expert in the field is able to deduce
the "inner workings" by only observing the result of applying the patent.

Thus, a pharmaceutical patent would continue to be effective under this test
(you can't really tell the inner workings of a pill by looking at the pill).
However, you can tell the inner workings of a bloody rounded corner, or using
a phone to play music.

I say this, because patents were intented to incentivize people from hiding
their secret ideas so that society at large benefits. If your idea can't be
hidden, then there is no need to grant any monopoly.

~~~
teyc
Say before wireless, you had to check your email over a wired connection.
Someone patents the idea of checking email over radio waves. If multiple
people came up with the same idea, and lodges the same patent within 6 months
of one another, then it is not worthy of a patent.

------
zmmmmm
I like his suggestion, and it's rare to actually hear a new idea in how to
resolve the patent problem.

However I find it odd that in the preamble he points out Apple, but presumably
something like an iPhone would easily fall into the class of special purpose
computing equipment, so Apple's case would be unaffected by it. In fact, it
might even encourage mobile phone platforms to become more locked down and
restrictive so as to avoid falling into the definition of a "general purpose"
computer. Thus there could be a very dangerous backfiring of this if the
definitions were not clear and broad.

~~~
btilly
The way that I read it would be that the iPhone could definitely be patented.
However apps in an app store could not.

So you could have something like the slide to unlock patent. It could bind
software shipped as part of the base operating system. But app developers
could implement that same feature in an app and be fine.

Far from perfect. But a definite improvement.

~~~
d2vid
The way I understand his idea is that a phone is a general purpose computer.
If Apple wants to patent slide-to-unlock, they can only patent a hardware
implementation (i.e. a chip that only does slide-to-unlock, which is clearly a
ridiculous idea).

Then I can come along and write software for Android that implements slide-to-
unlock, and I am not infringing because my implementation is software only.

The end result of this means that Apple's slide-to-unlock patent would become
worthless.

------
lumberjack
Perhaps it's because I'm tired and I'm not understanding correctly but what is
the practical difference between Stallman's suggestion and simply abolishing
software patents?

~~~
webjprgm
He says you can't revoke existing software patents legislatively, so
abolishing the ability to get NEW software patents would take 20 years to fix
the problem (for the existing ones to expire). By saying those existing
patents can't be enforced the problem is fixed now.

------
batgaijin
Personally I think the FSF should go full dystopia: promote and strengthen
software patents.

They are so influential right now, and are changing the very fate of the
infrastructure of this planet.

It isn't just about money, it's about how the whole ecosystem is poisoned.
Either there needs to be massive reform sponsored by the major corps. or small
countries will start to break out of treaties to promote "IP freedom" for
shell corps.

~~~
unimpressive
I figured one way to protest the system would be to get a bunch of bogus
patents and troll, while opposing software patents and pointing to your suit
as an example of why the law is broken.

Not sure if that would be legally viable though. One would have to contact a
lawyer and ask.

~~~
batgaijin
I've always wondered if corporations lose certain lawsuits on purpose to
change the outcomes of future cases.

~~~
monochromatic
Not really a viable strategy.

------
EGreg
Here are a few reasons why the patent system isn't useful for software: A)
Almost no one in the industry comes up with innovative solutions to problems
by reading software patents from the last 20 years. They do it by implementing
their own solutions or improving existing solutions.

B) There is already a powerful force that has promoted innovation in software
much more than patents, and that is open source. In fact, most of the web
sites on the internet are powered by a stack of open source software.
Therefore, innovation would take place in this industry even if the government
didn't offer a 20 year monopoly to anyone who can disclose a non obvious idea
to the public.

C) The purpose of patents is to promote innovation by encouraging the inventor
to disclose the details of the intention to the public, in exchange for a
17-20 year monopoly on the implementation of the invention. However, since the
industry moves so fast, inventions which are not obvious when patented become
extremely obvious "incremental improvements" several years later. This
combined with A completely defeats the positive side (to the public) of the
compromise, but keeps the negative side of the compromise -- namely the
monopoly. The latter costs society in the form of litigations, intimidation of
small companies, and injunctions against useful products made by big
corporations.

D) Software patents encourage patent trolls to file an invention and lie in
wait, or sell the patent to someone who will lie in wait. Meanwhile, they
discourage actually implementing technology, because it can infringe on any
number of patented inventions. We all realize how much implementation and
execution is more important than a mere idea. Thus, it might actually be
thwarting the very thing that it's supposed to promote: actual implementation.
In the words of Fred Wilson, it is a "tax on innovation".

E) By contrast, open source encourages actual IMPLEMENTORS of software to not
only disclose the effect to the public, but release a functional piece of
software which actually implements the innovations. Moreover, many Free
Software licenses compel those who make use of this software to release their
own software in turn. The result is people building on each other's work,
promoting implementation and execution over simply disclosing ideas. This
aligns much better with the interests of society at large -- and the original
purpose for patents.

F) The industry moves too fast for the patent office to keep up not only with
the state of the art (they have almost no chance), but even the state of PRIOR
ART, leading to many patents being granted that don't satisfy the obviousness
or prior art requirements. Sometimes dozens of patents are approved for the
exact same thing. As a result, the cost to society is pushed into the legal
sector, causing lengthy court proceedings rather than patent office actions.

G) When a small company is sued, even by a patent which can be invalidated, it
can often be intimidated into entering a settlement (an unfair situation), or
in fact defeated because it didn't have the funds to find the prior art. But
even in cases where there was no prior art and the patented invention was in
fact not obvious, chances are 99% of the time the "infringing" implementation
was developed completely unaware of the patent's existence. See points A, and
C. Therefore, the positive side of the compromise (to the public) was
completely superfluous, but the negative side hits with full force and effect
(see point F).

H) Large companies now spend billions of dollars to acquire patent portfolios
for purposes of intimidation, defense against ... patent litigation, and
anticompetitive practices -- by which I mean not competing on actual quality
and price of the products, but rather trying to artificially reduce the
quality and increase the price of the competing products. The costs to the
consumer are obvious. Moreover, the costs to shareholders include money that
will never be used for actual innovation, but simply the above purposes.

All in all, there are many reasons to abolish software patents in the USA.

~~~
d2vid
Exactly, and Stallman's proposal represents a viable path forward to
effectively abolish software patents.

It avoids the messiness of invalidating existing patents or determining during
patent examination which patents are for software and which patents are for
hardware. Effectively, it shifts that determination to the implementer.

If I'm able to implement a patented idea in software, then it was a software
patent. And I'm not infringing.

------
wheelerwj
I am not very familiar with software patents, just business process work.

If you write a program in say... python which is open source. You can patent
that program even though your work is based of something that is publicly
available? Or can you only patent additional libraries/new languages?

~~~
jlgreco
Implementation is not required and are not in fact what is actually patented.

An implementation can implement something that is patented, but that does not
mean the implementation is itself patented.

MS Word is not patented, but implements many patented concepts.

~~~
wheelerwj
hmm, thanks.

------
rumcajz
Nice. If there is a hardware patenet, just re-implement it in software and you
are safe.

~~~
d2vid
Exactly, this is how I understood his proposal. Simple to understand exactly
what is and isn't allowed.

Many people here seem to be focusing on how patent lawyers would find new ways
to write software patents, or focusing on whether hardware would still be
patentable. That misses the point.

If I can implement a patented idea in software on commodity hardware, I'm
safe. Simple!

------
comex
I don't understand why the comments here are saying this is a "practical",
realistic solution. This sort of legal trick might help deal with the law as
it stands (personally, I'd much rather see algorithms made unpatentable and
wait 20 years), but a vastly greater obstacle is convincing Congress (or a
court) that these patents should be eliminated in the first place.

------
monochromatic
This is about as likely to happen as a law that comes right out and
invalidates software patents. Or ends women's suffrage. Or requires everyone
to wear blue pants on Thursdays, under penalty of death.

It's an interesting thought experiment, but treating it as more than that is a
mistake.

~~~
emiliobumachar
Bad law can change if strongly opposed. It just _seems_ impossible. To pick an
extreme example, slavery was as old as humanity, and backed by very powerful,
rich, and organized special interests, until it was strongly opposed,
consistently, for decades.

~~~
sethrin
It could be argued that the Industrial Revolution was making the system of
mass human labor obsolete. One moneyed elite against another does not a
popular struggle make.

A better example, one that was purely social, was when Prohibition was enacted
in the United States (alcohol being about as old as humanity). Preachers were
calling for prisons to be torn down as they would no longer be necessary with
the passing of the Demon Rum.

Then again, perhaps that's not the best example either. How about we just
settle on someone noncontroversial like Gandhi?

------
pootch
In a recent job interview I was asked to code a doubly linked list as part of
the coding part of the interview. Linked lists are patented, did me
implementing this break the law?

~~~
sh_vipin
Is it ?? what is the patent number.

~~~
woodchuck64
US7028023?
([http://www.google.com/patents?id=Szh4AAAAEBAJ&printsec=a...](http://www.google.com/patents?id=Szh4AAAAEBAJ&printsec=abstract#v=onepage&q&f=false))

~~~
pjscott
That only covers linked lists that have multiple "next" pointers, so you can
traverse it in more than one order. It's still stupidly obvious, but does not
cover singly-linked lists.

~~~
jlgreco
Pootch was asked to implement a doubly linked list, ie a linked list with
axillary pointers that allows an alternative transversal.

~~~
pjscott
Ah, I misread. In that case it _is_ claimed by that patent, but this almost
certainly wouldn't hold up in court, because there's so much prior art for
doubly-linked lists.

This situation would be laughable if it weren't backed up by the force of law.

~~~
vvhn
How does answering an interview question violate/infringe any patent (valid or
invalid).

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

states " The definition of patent infringement may vary by jurisdiction, but
it typically includes using or selling the patented invention. In many
countries, a use is required to be commercial (or to have a commercial
purpose) to constitute patent infringement.[citation needed] "

~~~
beambot
Perhaps it could be an example of indirect (contributory) infringement if the
company used his interview solution in a product (ie. he facilitated their
infringement)?
[http://en.wikipedia.org/wiki/Contributory_patent_infringemen...](http://en.wikipedia.org/wiki/Contributory_patent_infringement)

Pretty unlikely in this case, but I can think of interviews where I had the
same concern. MegaCorp posed a problem they were having (eg. preventing radar
self jamming), I told them one solution I knew of, but I was very careful to
point out that it was patented less they turn around and use it.

So I share the parent's question: Can you be held liable for infringement due
to a job interview answer?

~~~
admax88q
Patents are not trade secrets. There's nothing illegal about communicating the
contents of a patent.

------
naturalethic
Yo Richard, just get rid of IP and everything fits.

------
marshallp
Stallman's behind the times, data is where the action is. He shuld be
advocating for open data, software is so yesterday.

~~~
ibotty
open data is important. sure. but it is certainly orthogonal to open (or free)
software.

