
Software patents - tomh
http://www.marco.org/430351101
======
kiba
I believe software only bring out the danger of patents into the open, not
because it is a poor fit.

Imagine that people are starting to have a printer that can print any objects
from any design at will, including the biological kind. They benefit from
sharing designs over time, because not only that their machine can print newer
design, but their machine also allow them to recycle objects into new and
better one. All that is left is the distribution mechanism for raw material,
but once you reach a certain amount of material, you can basically transform
old objects into new ones at will, barring the need for new raw and rare
exotic materials. Perhaps, people who is able to complete a design will be
rewarded with especially rare materials for them to experiment with?

Now what happen if the patent system is still in effect? That mean every
person with a 3D printer is barred from printing designs from a patent of an
inventor. In order to make lot of money, he essentially bar the people with 3D
printers from printing so that he can sell his invention at the market for
really high fees. If he come up with an innovative design for a self-
replicating machine, he can bar the people with 3D printers as well from doing
as they like for twenty years. For whatever reason, he rather have the power
rather than becoming one of those nobodies in a society where everyone is
become wealthier.

He can practically stop whole community of inventors who don't use patent and
have a totally different idea toward sharing the design of invention.

Now imagine an innovative software entrepreneur stopping the open source
software community and industry!

Patents doesn't need to be frivolous in order to be dangerous to the progress
of technology. It can be innovative and _life changing_.

But an equally self-interested community of inventors who does thing in the
open, may also give you inventions that is innovative and _life changing_ as
well.(And it may be just one inventor in the whole community who come up with
it as well)

Which path do you want to explore?

~~~
thwarted
_Imagine that people are starting to have a printer that can print any objects
from any design at will, including the biological kind. ... That mean every
person with a 3D printer is barred from printing designs from a patent of an
inventor. In order to make lot of money, he essentially bar the people with 3D
printers from printing so that he can sell his invention at the market for
really high fees._

If you had a replicator that could produce anything, why would you need money
at all? There wouldn't even be markets as we know them today where an inventor
could command really high fees. And without needing money, you wouldn't need
the government enforced monopoly that is patents to allow restricted
exploitation of an idea.

Besides, stupid people would think they'd be being smart by have their 3D
printers print money, there by making money worthless.

In this thought experiment, I want to be part of and explore the sharing/open
community, because I don't think a community that hides its best (and only
assets), it's ideas, when production costs don't exist won't be able to grow
as fast as a community that shares. When the key resources, and those that
provide the basic necessities, are unlimited, there's no reason not to share.

~~~
camccann
_If you had a replicator that could produce anything, why would you need money
at all?_

Even if manufacturing becomes effectively free, resources won't. You'll still
need energy and raw materials.

 _There wouldn't even be markets as we know them today where an inventor could
command really high fees._

Just like the internet made the market for copyrighted information go away,
right?

~~~
kiba
_Just like the internet made the market for copyrighted information go away,
right?_

Most people are afraid to experiment without copyright and does not have a
business model to exploit a non-copyright paradigm.

However it does not mean that a non-copyright or at least copyright without
much competitive deterrent would not thrive.

Indeed, the open source software industry is one huge example. RedHat, for
example effectively does not deter competitors from making copies of their
distribution and selling it. However they still make lot of money.

Arduino, an open source hardware platform, is another example. Chinese
manufacturers copied their design, but the firm behind arduino still manages
to sell a boatload of them.

------
pingswept
At present, is there any reasonable behavior for developers other than to just
ignore software patents?

I wouldn't even know where to start if I were trying to avoid infringing.

With non-software patents (let's say I'm building a new kind of lawnmower), I
could search for patents on lawnmowers, maybe knife blades, or weed whackers.
But with software, I think I'd have to search for abstract concepts like "list
sorting" but maybe also "representing data in an ordered table" and "appending
measurements according to rule."

Is there anyone who doesn't just ignore software patents and then hope for the
best?

~~~
DougBTX
I imagine it's best to ignore them completely, if there is evidence that
you've been reading up on patents that just makes it easier to prove
intentional infringement, tripling the damages.

At least that's better than copyright infringement, where you could be liable
for 100,000 times damages.

------
mcav
It's great that a lot of developers are sounding off on their blogs about
this. But what will it take to achieve _real_ progress toward reform? We can
complain all we want, but what will it take to get real traction?

~~~
grellas
Though he did not have a blog, Thomas Jefferson "sounded off" (to use your
term) on this issue nearly 200 years ago, in a letter to Isaac McPherson dated
August 13, 1813 (the text of the full letter is found here:
<http://www.temple.edu/lawschool/dpost/mcphersonletter.html>).

His primary point is that ideas are by nature designed to spread for the
benefit of society and are not inherently to be made a subject of property -
and thus if a society decides to deny to inventors any rights to exclusive
claim on an idea, no one has any reason to complain.

In his words:

"That ideas should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his condition, seems
to have been peculiarly and benevolently designed by nature, when she made
them, like fire, expansible over all space, without lessening their density in
any point, and like the air in which we breathe, move, and have our physical
being, incapable of confinement or exclusive appropriation. Inventions then
cannot, in nature, be a subject of property. Society may give an exclusive
right to the profits arising from them, as an encouragement to men to pursue
ideas which may produce utility, but this may or may not be done, according to
the will and convenience of the society, without claim or complaint from any
body."

This is a philosophical argument against the idea of patents generally.

Jefferson lost this argument.

Thus, the Patent (and Copyright) Clause of the Constitution (Article I, sec.
8, cl. 8) provides that the Congress shall have the 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." In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat.
109, 110), Congress implemented its constitutional authority to sanction
patent monopolies by defining patentable subject matter very broadly, to
include "any useful art, manufacture, engine, machine, or device, or any
improvement therein." Congress amended the Act in 1793 and then again in 1952,
so that today it reads as to the idea of "patentable subject matter" as
follows (35 U.S.C. sec. 101): "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."

Jefferson made a second very important point in his 1813 letter, and this
bears directly on the philosophical dispute underlying the patentability of
process or software patents (of course, he did not discuss it in terms of
software).

This second point deals with the idea that _new uses_ for old machines or
processes should not constitute patentable subject matter.

Jefferson believed that a "machine of which we were possessed, might be
applied by every man to any use of which it is susceptible, and that this
right ought not to be taken from him and given to a monopolist, because the
first perhaps had occasion so to apply it."

In essence, the Jeffersonian position amounted to saying that society was free
if it liked to grant limited monopolies on useful ideas that had utility for
commerce but there was no inherent right in an inventor to claim such a
monopoly - it all depended on the judgment of society. If, however, a society
had once decided to grant such monopolies in order to promote commerce, then
the monopoly should extend only to the original invention and not to any new
use made of it thereafter. Why? Because ideas are meant to be freely
transferred for the benefit of society, including the free application of any
"machine" by any person to any use of which it is susceptible and, as
Jefferson put it, "this right ought not to be taken from him and given to a
monopolist."

While Jefferson had lost on the broader idea of abrogating patent protection
generally, the more limited idea that discoveries of new uses for old machines
or processes were not patentable subject matter _did_ hold sway for quite a
while in leading U.S. judicial decisions. For example, in _Roberts v. Ryer_ ,
91 U.S. 150, 157 (1875), the Supreme Court held that "it is no new invention
to use an old machine for a new purpose."

In 1952, however, Congress explicitly overturned this line of judicial
decisions. Specifically, it defined as a _patentable process_ any "process,
art, or method" and specified that this included "a _new use_ of a known
process, machine, manufacture, composition of matter, or material." (35 U.S.C.
sec. 100(b)).

Of course, this 1952 amendment to the Patent Act laid the foundation for a
significant expansion of "process" patents and specifically for the adoption
of software patents. Why? Because, in a world of general-purpose computing
devices, all kinds of existing machines and processes are "susceptible to new
uses." Indeed, this is the very nature of software, which can apply to an
almost infinite range of potential uses. Once the principle was established
that such new uses fell within the statutory definition of "patentable subject
matter," then a broad array of such patents could be issued, subject only to
meeting other requirements of patentability such as novelty, non-obviousness,
utility, etc.

With the modern development of the free and open software movements, the old
philosophical debate has taken on new life but the prospects of the "free"
side winning this debate, in my view, are likely doubtful. The legal tradition
is deeply entrenched in favor of patents, as are the commercial interests. One
is left, then, with what amounts to a philosophical argument that patents (or
at least process patents) are bad.

Insofar as the law is concerned, the issue will be addressed in the Supreme
Court's forthcoming decision in _Bilski_ , expected this year. Beyond that,
relevant arguments must be addressed to Congress, which does have the
authority to redefine what constitutes patentable subject matter and hence the
theoretical power to abolish software patents in general.

Sounding off on blogs definitely furthers the momentum for change but a lot
more would be needed to effect a change of view on issues that are so deeply
rooted in U.S. history and legal tradition. So long as this remains primarily
an ideological position of the free/open software movement, and nothing more,
it will likely languish along with the old Jeffersonian sentiment that today
sounds so quaintly out of date. I am not saying this in a patronizing way. For
something to come of this besides just sounding off, a _major_ shift in
mindset has to occur in society generally, and I don't see any evidence of
this as yet.

~~~
kiba
_Sounding off on blogs definitely furthers the momentum for change but a lot
more would be needed to effect a change of view on issues that are so deeply
rooted in U.S. history and legal tradition. So long as this remains primarily
an ideological position of the free/open software movement, and nothing more,
it will likely languish along with the old Jeffersonian sentiment that today
sounds so quaintly out of date. I am not saying this in a patronizing way. For
something to come of this besides just sounding off, a major shift in mindset
has to occur in society generally, and I don't see any evidence of this as
yet._

The free software movement is not the only movement to reach this conclusion.

The libertarian tradition itself has now reached a point of consensus
regarding the idea of intellectual property, which is to abolish it.

This is a _revolution_ that took place over ten years. It was slow and
gradual, but now it is at the point at which all of mises.org, a libertarian
think-tank is now licensed all their content under creative common
attribution. It also cumlinates with mises.org carrying two book making the
case against IP, which is _Against Intellectual Property_ , and a non-Austrian
book, _Against Intellectual Monopoly_.

The free software movement now have allies with the radical libertarians and
some of the key major thinker of libertarianism.(Ironically, it shared so many
computer programmers as to blur the line somewhat)

------
fnid2
Everything said in this post is true of _any_ kind of patent, not just
software patents. Gillette does the same thing with razors.

I still see no reason to treat software patents as a subset of patents that
should be dealt with independently of the patent system as a whole. If we do
away with software patents we should do away with ALL patents.

If we reform all patents, we should also reform software patents.

~~~
aoriste
As a disclaimer: in an ideal civilization, in which the market ceased to
operate, wealth ceased to appeal to people, and our individual ambitions
collectively coincided to the mutual benefit of all, then patents would, and
should, cease to be.

While I despise the concepts of owning an idea, owning the right to propagate
an idea, and possessing control over the use of an idea, I cannot help admit
their (mottled, provisional, and entirely realistic) use. Patent law should,
undoubtedly, be reformed - limitations on what owning the idea means should be
reworked. Just as, for instance, owning a piece of land doesn't mean you can
do whatever you like with it, owning an idea should be similarly subject in
order to benefit the intellectual community in whose landscape the idea sits.

Should we get rid of ALL patents? Yes - but not until we (being ironical here)
get rid of all companies whose capital is founded on owning the ideas that
make them money. In the case of software, however, there is right now an
immediate dysfunction in patent law, made evident by the examples in the
article, that should be immediately addressed.

~~~
kiba
_While I despise the concepts of owning an idea, owning the right to propagate
an idea, and possessing control over the use of an idea, I cannot help admit
their (mottled, provisional, and entirely realistic) use. Patent law should,
undoubtedly, be reformed - limitations on what owning the idea means should be
reworked. Just as, for instance, owning a piece of land doesn't mean you can
do whatever you like with it, owning an idea should be similarly subject in
order to benefit the intellectual community in whose landscape the idea sits._

Where is the evidence that patents benefit the intellectual community at large
and increase the wealth of the people at large?

It is one thing to think that the patent system might benefit civilization as
a whole, but it's a long jump to suggest that it should be implemented.

Moreover, the ownership of idea does not fit the logical justification for
property rights of actual scarce resources such as land.

And furthermore, the very existence of Makerbot Industries and their cupcake
CNC hardware as well arduino, and countless other open source hardware product
directly clash with the notion of patent being necessary or needed to
encourage the development of physical inventions. Here, in the present day, it
can already be seen as a direct dysfunction.

That's not including the case against steam engine inventor James Watt, or
agriculture flourishing without much patent protection(Breeders would sell new
plant varieties to farmers, who then reproduce and resell the seeds on the
market), as well as the fashion industry who thrives in the midst of copycats,
and more.

~~~
aoriste
Alright, trash patents right now - tell me what would happen.

"where is the evidence..." I was having this discussion with a friend of mine,
an engineering PhD. At first, I took your side, and ideally, I still do. Don't
get me wrong: I WANT a patentless world to work.

He put it like this: what do you do when you work for years on an idea, you
finally get enough to publish, and to get your idea patented. You know that
your career depends on your getting the "first stake" on this idea - others
(who you can name) are working on the idea too. If you cannot patent it, then
you cannot build the rest of your career on your having gotten there first.

Now I know, immediately, this notion sounded utterly evil to me. You
SHOULDN'T, I protested, be able to found your career on having gotten there
first. You should want to share your idea with all of those people who are
also working on it - and afterall - isn't this how academic science moves
forward?

Yes, he said, but still - if you cannot patent your idea, then somebody who
ALREADY has the resources will snatch it up and use it to dominate the field
BEFORE you can acquire the resources to do it youself. And so you end up just
giving somebody an idea for free, and you get nothing in exchange for your
years of work.

Ideologically, I am still rubbed the wrong way by this argument - on the other
hand, what else is my friend the engineer supposed to do?

The benefit of patents is not to civilization as a whole - that is the problem
with them - their benefits are local and incremental to individuals - and even
that benefit is imperfect. The system requires reform - but I do not think we
are ready for the system to be abolished.

~~~
ZeroGravitas
The lone inventor defeating entrenched interests with the power of a patent is
a fairy tale.

The only patent holders large organisations fear are non-practicing entities
(aka trolls) because anyone actually trying to build a product can be
undermined in any one of a thousand ways.

~~~
aoriste
Precisely, the system requires reform - but abolishment would even further
deprive that "lone inventor" of right to her own work.

Trouncing patents now would only give the already successful less to worry
about, and would force the budding minds into the dirt.

I, for one, am so anti-capitalist that I don't use a single piece of
proprietary software, and I own only what I can carry. I'm an idealist with
the causes that I can control (personal use) - I'm a realist when I want to
actually see change in the right direction (political voice).

~~~
kiba
As far as ideology goes, I suspect mine would be the opposite of your. I am a
pro-capitalist, going as far to assert that nobody have the right to make
money from their work. However, on the flip side, I also argue that everyone
have the right of property. I have no qualm in letting engineers starve
themselves working on an invention. However, I have qualms about people
destroying my community in addition to my business which I have established
without the monopoly mechanisms.

I love open source software so much that I gladly stake my whole business
model on it, to the point of wishing to experiment without the protection of
copyright.

Those patent entrepreneurs wish to live in a world that would take my property
right and freedom away in favor of their monopolistic business models.

This is liberty versus economic security.

I rather be a free dog who don't know what his next meal at, then an enslaved
dog who get a small but a sure pittance.

~~~
aoriste
on that final point, we can agree.

And you're right, we must be somewhat disparate in our thought - If I were the
architect of the world - I would have it that material property is the only
sort that qualifies, and that nobody can make a living except by their work
(or by the services they work to offer).

------
justinsb
Yet another 'software patents are bad' piece without a single fact. Many
disagreed to the point of retaliative downvoting with my blog post the other
day ( <http://news.ycombinator.com/item?id=1167926> ), but it was trying to
make a fact-based case pro-patents; can't we at least try to argue from facts
rather than hearsay on HN?

~~~
kiba
It would seem to me that he is arguing from conjectures and logics. I think
that deduction is a valid investigation technique, because mostly we can't
investigate everything using induction.

As for your argument in that post regarding Google, I would still say that
even if a patent is non-frivolous, non-obvious, and innovative, it could still
have a negative overall effect mostly because of the privileges that is
afforded to inventors and innovators to silence the competition who may have
come up with equally groundbreaking work.

Innovative, non-frivolous patents still poses a danger to the open source
software industry, which does not relies on patents to make their money.

The patent system make us choose a kind of inventor and entrepreneur over the
type that open up their secrecy to the world and become wealthy from it.

That's the choice we're making if we choose the patent system over the market
solution of intentional openness.

------
Create
_Building up a patent portfolio by engaging in defensive patenting cannot
always protect against hold-up._ \-- Federal Trade Commission of the USA

[http://www.nosoftwarepatents.com/en/m/dangers/investment.htm...](http://www.nosoftwarepatents.com/en/m/dangers/investment.html)

