

The Death of Many (If Not Most) Software Patents? - chrisv
http://www.patentlyo.com/patent/2008/07/the-death-of-go.html

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akeefer
It's basically impossible to write any non-trivial piece of software without
violating half a dozen completely absurd patents, and I don't think I've seen
a legitimate software patent lawsuit in the last 10 years. There may be a few
in there that I don't hear about, but upwards of 95% are either 1) a big
company trying to kill a small competitor before they get too big by tying
them up with useless litigation and legal fees, 2) an IP holding company
trying to extract money from a big company with deep pockets, or 3) two big
companies using patents as leverage to try to extract concessions out of each
other.

I can't think of any company or engineer I know of that would stop writing
software if they couldn't patent it, or of anyone that's learned anything
useful from reading a patent filing.

The most important parts of software are already protected by copyright and
trade secret laws, and patents have absolutely no place there.

~~~
chaostheory
yeah there's little difference between software patent litigation and
extortion... I can say the same of business process patents; they might as
well allow patents of cooking recipes at this rate

finally a good change of direction for the USPTO

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ssanders82
This article comes at a particularly opportune time for me. A site I'd built
for a client was sued by Channel Intelligence in their mass filing last week
(TechCrunch covered it) for their revolutionary and genius idea of
"configuring a database system to store information regarding a plurality of
items," focusing on wishlists.

The client (#12 in the suit if you're curious) called me in a panic telling me
to pull down the site, so all its users are screwed. I've also run a free
wishlist site at GreedyMe.com for several years which wasn't named in the
suit, but if it had been, I couldn't financially justify trying to fight it.

PageRank was pretty revolutionary. I'm on the fence as to whether that should
be patented. Amazon's 1-Click and Channel Intelligence's "list storage" are
obvious methods, and I can't fathom how any lawyer or businessman can submit a
patent for such nonsense with a straight face.

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boredguy8
"In sum, an innovative process is not patentable when operating on a single
computer processor but is when operating on two processors, even though the
Board recognizes that the process in the unpatentable claim 'is essentially
the method' set forth in the patentable claim."

So you just move your data repository to one machine and your data processing
to the other, and you have your patents back.

I really just don't understand how something like this happens. I guess "The
Law" is a massively backwards-compatible system that makes computer
architecture anachronisms look mild.

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mojuba
If software patents stop being valid, companies will keep many of their
inventions secret and will protect them as "trade secret" from now on. With
patents they were at least forced to publish them. Not good either way,
although certainly this will put an end to portfolio-only kind of businesses
that did only harm and nothing but harm to everybody.

~~~
mechanical_fish
_If software patents stop being valid, companies will keep many of their
inventions secret..._

As compared to the situation today, where Google's patents allow them to be
completely open about how their systems work, and we all get to read the
source code to Microsoft's software because it's protected by patent?

Companies _already_ keep their nontrivial inventions as secret as they can,
because they know that the patent system is useless for its (supposed)
intended purpose. [1] The system moves at a glacial pace relative to the
industry, it costs too much to use, its results are unpredictable to the point
of randomness, it's filled with reams and reams of invalid chaff, and frankly
software itself is too abstract, mutable, and easily copied to be reliably
protected by patent. There's a good reason why the inventors of patents didn't
let people patent written works. Those folks weren't dummies.

No, software patents are a tool for trolls, nothing more. Every invalidated
software patent is a victory for mankind.

[1] If, OTOH, you believe that the intended purpose of software patents was to
allow deep-pocketed corporations to patent-troll their smaller competitors to
death... the system is working precisely as designed.

~~~
miked
>>No, software patents are a tool for trolls, nothing more. Every invalidated
software patent is a victory for mankind.

This is much too strong, I think. I'm a co-founder of a small biotech startup
with a single patent to its name. We had trouble enough raising money even
with the patent. Do you think that I, or anyone else, would have put up with
all the pain and the long hours in the lab if we new that Agilent or Biorad
could swoop in at any moment and take our markets away from us using their
marketing clout?

>> If, OTOH, you believe that the intended purpose of software patents was to
allow deep-pocketed corporations to patent-troll their smaller competitors to
death... the system is working precisely as designed.

Sometimes, no doubt. But Borland and that small storage company both cleaned
Microsoft out for over $100,000,000 apiece, and MSFT's market cap is a bit
larger.

A patent is a limited term legal monopoly which effectively creates a legal
partnership between a government and, say, a three person startup on the one
hand and, oh, Google on the other. Without the patent it's you and your
buddies against Larry and Sergey and you're just bringing a knife to a
gunfight. Since this site is largely devoted to startups, this would seem to
be an important point.

I think the real solution is to shorten the terms of software patents to, say,
7 years and tighten up the meaning of "obvious to one schooled in the art".
That would immediately reduce the patent infringement search space while still
giving a small company time to build a first-mover market advantage.

~~~
mechanical_fish
I'm no lawyer, nor do I have a dog in this fight at the moment. So I may be
overstating my point a bit for theatrical effect. But I'm still not convinced
that tinkering with the definition of _obvious_ is going to solve our patent
troll problem. So long as it still needs to be litigated, it doesn't matter
how obvious a troll's patent is, just as it doesn't matter whether the gun
you're being mugged with is loaded or not.

 _Do you think that I, or anyone else, would have put up with all the pain and
the long hours in the lab if we new that Agilent or Biorad could swoop in at
any moment and take our markets away from us using their marketing clout?_

I'm sure that folks reading this site -- the ones whose products could be
cloned by Google or Yahoo at any moment; the ones whose earlier companies were
crushed by Microsoft -- have an entire orchestra of tiny violins to play for
you.

I used to build multiphoton microscopes for a living. The story of the
multiphoton microscope is amusing. Once upon a time, Bio-Rad held the
exclusive rights to the original Cornell patent. Their competitor, Zeiss, read
the patent and decided to argue that it covered only the use of _sub-
picosecond_ laser pulses for microscopy. So Zeiss came out with a competing
system intended for use with 1 picosecond pulses. Of course, if you found
yourself in the lab late at night and you happened to turn the knob on your
laser that shortened the pulses to 80 femtoseconds, your Zeiss microscope
presumably continued to work pretty well, but with a big improvement in image
brightness and depth. I assume that Zeiss refused to be held responsible for
that improvement -- after all, _the scope wasn't intentionally designed for
short pulses_ , because that would be Legally Dubious.

Naturally, the whole thing went to court for years. The issue was settled when
Zeiss bought out Bio-Rad. See here:

[http://listserv.buffalo.edu/cgi-
bin/wa?A2=ind0401&L=conf...](http://listserv.buffalo.edu/cgi-
bin/wa?A2=ind0401&L=confocal&D=0&P=99334)

I can't tell you who won or who lost, there, but here's my conclusion: If a
company the size of Agilent or Zeiss or Biorad wants to violate your patent,
they'll just do it. All you were doing, in those nights in the lab, was trying
to improve your negotiating position in the resulting court case.

(That, BTW, was a traditional _hardware_ patent, not the software kind. If
yours is a software-only patent... good luck with that.)

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vaksel
i think the biggest problem with software patents is how long it takes. You
may invent something amazing, but it'll be 5 years before you actually see the
patent and by that time your amazing technology will be widely used

~~~
wmf
As they say, that's a feature. After everyone is using the idea there are more
potential royalties to collect. You do have to stay in business until the
patent issues, though.

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thomasfl
If most software patents suddenly stops being valid, then this could open up
lots of new business opportunities?

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LogicHoleFlaw
Well, it would remove a lot of the minefields which are currently worrisome to
startups.

Software is rather unique in that it has been granted all of patent,
copyright, and trade secret status.

I firmly believe that software patents are counterproductive to advancing the
industry and should not be held as valid. The legal developments detailed in
the article look like great progress in encouraging innovation in the software
industry.

