

The patent to invalidate software patents - nextparadigms
http://www.techdirt.com/articles/20110822/13094215621/what-idiot-wrote-patent-that-might-invalidate-software-patents-oh-wait-that-was-me.shtml

======
shabble
I don't know if this has been mentioned previously, but I've not seen it in
any of the previous debate about software patents.

Quoting from the article:

 _Patents are meant to foster innovation by protecting the inventor and then
upon expiry providing a library of information for others to build on. To this
end, going forward, if a patent doesn’t actually tell you enough information
to understand and build the invention, it shouldn’t be valid._

Given that a software patent is...well, software, why not require that _actual
working code_ be submitted as part of the patent application/grant? The code
is held in escrow/confidence by the patent office for the term of the patent,
and is released to the public domain when it expires.

There's probably some issue there with copyright of the code that might
complicate the public domain part, but at the very least you could clean-room
reimplement it. An alternative might be that you are required to renounce/void
copyright on the code in order to obtain a patent - the short term monopoly of
the basic idea comes at the cost of no long/indefinite-term copyright on the
specific implementation.

That opens up all sorts of new possibilities, like requiring/permitting the
patent claims to be machine-readable, in the sense of a conformance test-
suite. That both ensures that the provided implementation is a true instance
of the patented invention, and gives the holder/patent office/court an easy
way to check for violation.

~~~
andrewflnr
"Actual, working code" might be prohibitively context-dependent. Working code
to detect credit-card fraud would be pretty dependent on your financial
infrastructure. In many cases though, that would not be as big a problem, and
in others it might be satisfactorily overcome. I think this is a good idea.

~~~
shabble
Yeah, it did occur to me after commenting that it might be difficult to
extract the specific patentable invention chunk from the overall application.

I can't think of a single approach that would work everywhere, but logically
isolating it as a library or service might work, similar to the way in which
you can implement an IPC/RPC shim for interfacing to GPL'd code from your
proprietary app.

Inventions that don't fit that model (Operating Systems, Embedded Firmware,
Massive Scale, etc) complicate the matter, but I imagine a set of disclosure
options could be devised, and the inventor/patent office would select the most
appropriate.

------
RyanMcGreal
> That said, it's the world we live in. So, like every other Silicon Valley
> entrepreneur, I file patents.

This is patents-as-positional-good, a zero sum game that consumes resources
and produces effectively no net value.

~~~
noonespecial
Worse, its almost a pure text-book case of the tragedy of the commons.

~~~
aristidb
Excuse me? Could you please explain, as I fail to see how a tragedy of the
commons arises.

(Of course patents are problematic, but the reasons that I know of are not
related to the tragedy of the commons in a way that I'm aware of.)

~~~
noonespecial
The best thing for everyone at this point is for individuals (and especially
for small start-ups) not to file for patents at all.

This is not the best thing to do for the individual, especially if he wants to
be acquired. The best thing to do in that case is to file as many broad and
unspecific patents as possible to boost your perceived value. Good for you if
you get acquired (or go bust and fire-sale everything), bad for everyone else
who now has to live with even more bogus patents that are likely on their way
to troll-land.

Its a case of "see, this is why we can't have nice things". It is conceivable
for the patent system to work if there weren't so many bad actors maximizing
their own gain at the multiplied expense of everyone else. Even those with
good intentions feel that they have to do this a little just to get by.

 _"That said, it's the world we live in. So, like every other Silicon Valley
entrepreneur, I file patents."_ Everyone feels that they have to graze their
sheep to survive, but its making the common grounds into desert.

~~~
aristidb
Oh, so it's an externality, not necessarily a tragedy of the commons (which is
a very specific type of externality).

------
WoundedMarlin
The points he made about how to improve the patent system are really good
ones. I have always though a short lifespan on patents would be better for
inovation.

I think patents are good for certain things but over all it slows inovation. I
think we could be another 25 years farther down the road with technology if
there where not so many bad patents out there.

~~~
JamesBlair
The problem with merely shortening the lifespan of patents is hinted at by the
logic in the argument for doing it. When we grant a monopoly to a party in
return for a patent, what we are in essence saying is _"If you hadn't filed
here then we would not know of this invention until later."_

This argument made sense when the system was first conceived because the norm
for that time was to keep inventions as family secrets and innovators
themselves were rare. But these days the norm is for some openness and there
are so many innovators that there can be very little margin between first to
invent and second to invent. Software patents in particular are problematic
because it is far more open by its very nature -- the existence of a solution
highlights the search space. The problem with merely shortening patents in
this light is that it just adjusts the cost/benefit calculation on the basis
of this being a sudden jump when this development is the result of a trend
that has no signs of stopping.

Fortunately, the revision seems straightforward: revamp patents to make the
calculation explicit. By the time software patents are completely useless,
they will have a 0 year life (and be dead). Meanwhile if other fields end up
as amendable to optimization as software is, we can gracefully scale down the
patents there without having the same conversation all over again.

------
monochromatic
Before anybody gets too excited, know that this case doesn't actually open the
door to invalidating software patents in general. It clarifies things a little
bit is all.

