

Michael Risch (noted IP law professor) Visits Groklaw - fpgeek
http://www.groklaw.net/article.php?story=20120610180253648

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reader5000
I think the Swype example is a great example of a bad patent. In this case
essentially the patent is protecting the first person to come up with an idea
(and claim it) that may turn out to be popular/profitable later on. I dont
think patents should protect "whoever called it first" like calling "shotgun"
to claim the front passenger seat in a car [possibly a regional thing...] This
basically incentivizes looking at current tech, brainstorming "cool ideas" and
a basic implementation, then patenting them so that in a few years if the idea
happens to come into vogue the lawyers can be let loose.

The Swype concept is what any mild-mannered engineer would come up with when
faced with the problem of "come up with more efficient ways to input text on a
handheld touchscreen device". Here's an idea: "Use the QWERTY keyboard except
don't lift your finger when typing hurr". I mean, this obviousness can be
tested empirically. Take a group of mild-mannered engineers (ignorant of
Swype) and ask them to brainstorm ways of inputing text into a handheld
touchscreen. How often is the Swype concept "discovered"? I would venture
every time, but hey hindsight bias and all. Furthermore, there is nothing
difficult (in the sense of requiring years of research and investment to
solve) or technology-expanding about its implementation in software.

I'm not sure if "requires years of expensive R&D to produce" should be the
only criterion for patentability. But clearly Swype, Amazon's one-click
purchase, slide-to-unlock, in-app purchasing, etc. are all poor patents and
hurt the advancement of the industry and consumers.

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SoftwareMaven
I think the question of obviousness is the most important question in the
patent debates and the hardest to answer. By asking the question, as you've
proposed, you are necessarily giving information about the solution. Knowing
which questions to ask is critical to inventing. Swype figured out the right
question. It wouldn't be fair to prime the pump by asking it to others.

This is not to say there aren't problems with software patents. There are
vanishingly few patents that really tell you how to implement the "invention"
and most of them don't actually do anything useful.

~~~
magicalist
Isn't that exactly reader5000's point though? Swype might have answered the
right question, but so many patents were filed at the same time, someone was
bound to. It might have been a novel idea at that moment, but how much reward
does the government need to bestow on something that you could essentially
come up with in an afternoon?

If everyone had copied the interface immediately, I would have felt for them
making no money on "their" invention, but what progress in the arts and
sciences is the patent really protecting? Imagine a world where for 1984-2004
Apple had patented everything down to the "OK" button in a system message.
Should someone have a right to retard progress like that? Should someone have
to reinvent something slightly different every time they want to enter the
market?

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SoftwareMaven
I think the arguments he makes are sound. I think there is value in having
patents (remember, before patents was trade secrets and guilds hoarding
knowledge), but there are serious costs to having _bad_ patents.

I also agree with him that, in today's world, trying to distinguish between
software and non-software patents is impossible and pointless. We will either
have software parents or no patents, and the latter isn't likely, so let's
figure out how to make the former work.

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hsmyers
He is not visiting, he has been a member all along.

~~~
fpgeek
Fair enough. I was having a hard time summarizing what was going on.
"Debating" sounded too adversarial, "addresses" didn't capture the spirit of
the interaction, etc.

What would you suggest?

~~~
olalonde
I would simply keep the title as is: "Curing the Problem of Software Patents".
Editorializing of titles is not encouraged on HN.

~~~
fpgeek
I thought about that, but I felt it wouldn't accurately convey what was
interesting about the link (which was not just the subject of the discussion
but who was doing the discussing).

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gringomorcego
Again, will PJ please explain why her anonymity is necessary today? It's been
too long with this charade, we need to know the benefactors.

