
Abstract Ideas Don’t Deserve Patents - wrongc0ntinent
http://www.nytimes.com/2014/03/30/opinion/sunday/abstract-ideas-dont-deserve-patents.html
======
mindvirus
For software patents, I'm a fan of Richard Stallman's idea that software
patents should require working, annotated source code be attached. I think
that this would make it easier to compare ideas to those in previous patents.

If patent filers chose to obfuscate their code, ideally their patent would be
rejected for being unclear, or at least, they'd have a hard time defending
their patent, as the difference between it and an alleged infringer would be
quite large.

~~~
jandrewrogers
Some algorithm patents do include source code but it is not that helpful.
Identical algorithms can be implemented in very different ways within and
across programming languages, so there is no comparative value. There are
algorithmic equivalencies in implementation that look wildly different in
code.

For example, in spatial indexing you can implement some widely used algorithms
as either traversing the obvious space decomposition tree or doing lookups
using projections onto higher dimensionality space-filling curves. The former
is "obvious" but all good implementations use the latter code design because
it is much more scalable in real systems even though the algorithms are
equivalent.

Most algorithm patents with code go for "matches the high-level description of
the algorithm" rather than "is an optimal representation of the algorithm
given current computer science". That said, in my experience people are pretty
good at reconstructing an algorithm implementation from patent descriptions
that do not include code, assuming they have some domain expertise (i.e. in
the above example, it should not be necessary to explain the representational
equivalency of literal space decomposition and projections onto space-filling
curves).

~~~
sliverstorm
Is it fundamentally different from diagrams and drawings in mechanical patent
apps? To me, the diagram (or source code) is just another way of describing
the patent. Firstly to help better illustrate what it is for, secondly to show
you have a working implementation.

~~~
axman6
A working implementation is, and never will be, a requirement got the grant of
a patent. The figures show an example of one or several implementations of an
idea, but have no baring in the defining the scope of the invention. There's
no reason for parents related to software could not include source/pseudo
code, it's just usually not very helpful.

------
sushirain
Abolish software patents.

A world without software patents is a world of free and faster innovation, of
equal opportunity, and of open and cheap access to technology.

Firms that have patentable knowledge are strong enough to not need
governmental protection. Inventing something before others gives one technical
advantage and time to make profit ahead of others.

Too much effort is spent on the patent process, that could be spent directly
on innovation.

In today's software world, 20 years of monopoly is like 100 years of monopoly
when the constitution was signed.

The solution should probably come from the legislative branch.

~~~
qq66
Why abolish software patents but not all patents?

~~~
georgemcbay
Software patents tend to be the most superficial of them all when it comes to
the litmus test of "Could I reproduce this patented system without ever
reading the patent just by looking at the results of it". (Or, even worse, in
many cases it boils down to "could I reproduce this patented system totally by
accident without ever even knowing someone else patented this simple system").

A good canonical example of this is Apple's much maligned "bounce scroll" or
slide-to-unlock patents (though Apple is hardly alone when it comes to this
nonsense).

Any decent software developer could see either of those in action, having
never read Apple's patent and never seen Apple's source code and whip up his
or her own implementation in less than an hour. That alone should invalidate
these patents.

Some will argue that Apple's original idea was unique at the time, so they
should have a patent on those grounds, but that's not what patents are
supposed to protect (though massive amounts of money being funneled into
lobbying and the legal system have served to obscure this in the past couple
of decades).

Patents don't exist to protect ideas, they are supposed to protect unique and
novel implementations of inventions, not ideas. There's really not a true
legal IP mechanism for the protection of ideas (even copyright is protection
of expression, which is closer to ideas, but not quite the same).

~~~
hackinthebochs
>Could I reproduce this patented system without ever reading the patent just
by looking at the results of it

This reasoning is deeply flawed. There is a tendency for something to seem
"easy" or "obvious" _after the fact_ , but this is ignoring all the insight,
effort, and risk it took to find that initial successful path to the solution
to begin with. Take a look at the Occulus Rift for example. Two years ago no
one cared about VR. Today there are a handful of companies that claim to have
a headset on par or better than the Rift. What changed? The Rift proved that
it was viable, and now its relatively easy to follow their path to a
successful product. Just because a solution is obvious after the fact, does
not mean its creation was equally as obvious.

>Patents don't exist to protect ideas, they are supposed to protect unique and
novel implementations of inventions, not ideas.

An apple lawyer could easily say that the "idea" here was unlocking of the
phone, while the implementation/invention was the "slide to unlock"
functionality. Neither is more right than the other.

Edit: would be an interesting experiment to have public downvotes

~~~
magicalist
But, again, the purpose of patents are to protect _inventions_ , not ideas.
The idea that VR now has a viable market is not patentable. Unlocking a phone
is not patentable.

I don't think any software patents should be granted, but the biggest problem
with them in practice is how they are allowed to be written: "a system that
does thing X" now is a patent on _anything_ that does thing X, essentially a
patent on that idea. Software patents often give the illusion of specificity,
but if you look at e.g. the "Siri patent", you see that it really just says it
searches multiple databases and displays them in an order based on some
heuristic. They're written in a way that it could arguably cover a huge class
of inventions, again, essentially patenting an idea, not an invention. This
can be especially bad when it gets in front of a jury, as it seems all too
reasonable to them that that description does in fact match the competing
product in question. Just look at Newegg vs a patent on "A method for
transmitting data comprising a sequence of blocks in encrypted form":
[http://arstechnica.com/tech-policy/2013/11/jury-newegg-
infri...](http://arstechnica.com/tech-policy/2013/11/jury-newegg-infringes-
spangenberg-patent-must-pay-2-3-million/)

~~~
hackinthebochs
>The idea that VR now has a viable market is not patentable.

You're missing the point. The issue wasn't that VR now has a viable market (it
always did), the issue was that a good implementation was now viable. And its
not just that it can be implemented, its that we generally know how they did
it. From this perspective, after having seen a fully working prototype, it can
seem _obvious_ that VR technology was just on the horizon. My point is this is
a fallacy; its easy to say climbing mt. everest is possible when you can look
down and see the path someone else just treaded before you. In a similar vein,
judging something as "obvious" and thus not patentable after it has been
invented is flawed.

~~~
marvy
I agree that things often seem obvious in retrospect, even if they were not
obvious before. But that's ok. The point of patents is not to protect things
that are obvious in hindsight. The point is to protect things that are not
obvious even after you see them. Things that make you want to say: ok, it's
right in front of my eyes, but what is this magic?

~~~
axman6
No, they're not. You may like to believe this, but it's not a fact. Many
inventions are quite mundane, but doesn't mean they weren't inventive (ie,
non-obvious) at the time. And the other thing that most people seem to forget
is that examiners must be able to show that the invention is obvious to be
able to object to it, there must be proof that a person skilled in the art
_world_ do X. you might counter that by saying the applicant must say why it
is inventive, but that's something that is impossible to do (except in
circumstances where the common general knowledge in the art has been that X is
impossible, and then you show that you have done X).

Simple things should not be ineligble for patents, and what you are proposing
is excluding from patent protection anything that is simple. Also if you're
looking at a patent that is in a field that you're skilled in and you can't
understand it "ok, it's right in front of my eyes, but what is this magic?"
then the patent hasn't fully disclosed the invention and it shouldn't have
been granted (or you're just not skilled enough, many patents require vast
amounts of knowledge to be able to understand and the "person skilled in the
art" may be a team of people).

~~~
deong
I think the last paragraph there is self-contradictory. Simple things
shouldn't be patentable, precisely because the invention doesn't need to be
fully disclosed.

To take a silly example, let's say I propose a patent on the process of
painting a house green. That's the entire text of the patent. Should it be
granted? No. In part because I haven't fully disclosed the invention. But what
could I possibly add? "Step 1. Cover house with green paint."

A government granted monopoly is a big gun. Far too big if the goal is just to
provide you with revenue. Government works for the people, not one company,
and if we're going to give you the right to exclusively profit from something,
we demand to get something in return. The thing we demand is knowledge. We
want to know how you did it so that after your monopoly expires, everyone can
benefit from the increase in knowledge. If your "invention" is so simple that
we all already know how to do it, then we don't need the "full disclosure" of
a patent, and we don't need to buy your description of painting the house
green for the enormous cost of having to pay you exhorbitant fees for every
green house for the next two decades.

~~~
axman6
Firstly, your example is so ridiculous I can't see how it adds anything to the
discussion. No, it would never be granted a patent, so what exactly is your
point?

Secondly, you have accurately described the patent system;

> if we're going to give you the right to exclusively profit from something,
> we demand to get something in return. The thing we demand is knowledge. We
> want to know how you did it so that after your monopoly expires, everyone
> can benefit from the increase in knowledge.

But you go off the rails when you confuse simple and known. The point of a
patent is to disclose the invention in a clear enough way for someone else to
be ablwe to perform it. Once you know the answer, it probably will seem
simple. But that does not mean it's not inventive (ie, no one else has done it
before, and you qwere the first to have made that knowledge available to the
public).

~~~
deong
I'm not confusing simple and known; I'm just including both in the decision as
to whether something is eligible for patent protection. As the patent office
is required to do (the term used in patent law is "non-obvious" rather than
simple, but it's the same concept).

You aren't eligible for a patent just because you did something first.

~~~
axman6
Simple is not the same as non-obvious, so no, it's not the term used in patent
law. Something is obvious if a non-inventive person skilled in the art _would_
have performed it through routine steps (at least here, some of the mosaics I
see coming from the US are batshit insane and no sane person would have used
them to come to same result the examiners is claiming - that said, this is a
practice that is in favour of the public, it requires the applicant to reduce
the scope of the claims further which leads to smaller monopolies).

------
yummyfajitas
I have a BS patent. It's a patent on the "conceptual system" (note: not a
software patent) of using a Mechwarrior/Sims/Diablo style character builder
interface plus standard search engine techniques to build a fashion search
engine. I refused to sign it but somehow the patent was granted anyway.

Also included in the patent is the concept of paying humans to use the system
to do searches for you (i.e., email a photo of shoes you like, someone will
google it for you).

[http://www.google.com/patents/US20130166591](http://www.google.com/patents/US20130166591)

If a patent is granted in spite of being obviously derivative to the point
that the inventor refuses to sign it, something is broken.

~~~
pwg
Actually, what you have is a "patent application". It is not yet a patent,
although according to the Patent Offices public pair system
([http://portal.uspto.gov/pair/PublicPair](http://portal.uspto.gov/pair/PublicPair))
it has had a "Non Final Action Mailed" on 2014-01-14. So it is being examined.
Looking at the rejection on the pair system, all the claims of the application
have been rejected during this go-round.

~~~
axman6
What? Someone on hackernews who actually understands the patent system enough
to know what's actually going on? This is unheard of!

------
argumentum
Abolish Intellectual Property. Period.

IP's time (if there ever was one) is over. There is no benefit for real
inventors and artists anymore, merely for mega corporations to use the levers
of government to maximize their profits at the expense of humanity and
freedom. Nothing "intellectual" should be property.

I'm not against corporations or even mega corporations. I think they'd do
better for themselves (and their users, more importantly) if they didn't waste
years and $billions battling each other and bullying startups and individuals
over IP. Instead, they should just focus of making better things.

 _If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to himself;
but the moment it is divulged, it forces itself into the possession of every
one, and the receiver cannot dispossess himself of it. Its peculiar character,
too, is that no one possesses the less, because every other possesses the
whole of it. He who receives an idea from me, receives instruction himself
without lessening mine; as he who lights his taper at mine, receives light
without darkening me.

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._ \- Thomas Jefferson

~~~
Snail_Commando
> Abolish Intellectual Property. Period.

> IP's time (if there ever was one) is over. There is no benefit for real
> inventors and artists anymore, merely for mega corporations to use the
> levers of government to maximize their profits at the expense of humanity
> and freedom. Nothing "intellectual" should be property.

> I'm not against corporations or even mega corporations. I think they'd do
> better for themselves (and their users, more importantly) if they didn't
> waste years and $billions battling each other and bullying startups and
> individuals over IP. Instead, they should just focus of making better
> things.

> [Quotation]

This sounds like a noble rallying cry but is ultimately misguided. How does
this system reconcile with the incentive structures inherent in pharmaceutical
research and drug design?

~~~
harshreality
Pharma is a special case. Can we separate IP into pharma and -other- and deal
with them separately?

Pharma "development" might be done by academics who get bought out by big
pharma after their discovery, or it might be done originally by big pharma.
Should pharma IP be protected so they can inflate prices to pad the bank
accounts of the inventors even though they were operating in academia at the
time of invention?

Pharma costs involve (a) cost to discover a drug, (b) cost to do drug trials,
including all bureaucratic red tape in getting the drug approved, and (c)
advertising and marketing (both to prospective patients and to the medical
establishment). From what I've read, advertising costs exceed R&D. Surely, IP
monopoly pricing should not be able to pass along arbitrary marketing costs.

Some drugs are prescribed for serious health problems, some drugs are
prescribed and taken on a more voluntary basis, and there's a gray area in
between. Should IP owners be able to set arbitrary profit margins for drugs
for more serious health problems? Who decides what's serious?

The incentives for much of the pharma industry are all wrong: they market to
doctors and potential end-users, even though end users are rarely capable of
evaluating drugs, and even though doctors are influenced by marketing directed
at them. This isn't so much a cost issue (other than advertising costs, above)
but rather a public health issue. Some drugs might not be in the public's
interest at all, even while being recommended by doctors, and paid for at
inflated prices by patients and insurance companies.

There are so many complications, I'm in favor of dealing with pharma IP
separately.

~~~
rgbrenner
You only addressed part of the problem. The OP said IP.. so we're talking
about trademarks in addition to patents.

The pharma companies would lose the ability to patent a drug.. which means
they would keep it a tradesecret instead. So generic may or may not be able to
be produced.

Second: without trademarks, pharma companies could invent Prilosec... and I
(and anyone else) could sell a sugar pill named Prilosec. Or rat poison named
Prilosec.. or any number of other items named Prilosec.

This is not a result that is in anyones favor.

~~~
fishy929
People would still be free to use and purchase based on the generic chemical
name.

Furthermore, I would consider tradesecrets a form of IP so, if we are
considering a scenario in which IP were abolished, tradesecrets would be
abolished too in the sense that they would be afforded no legal protections.
True, a formula or process could still be kept secret, but without protection
for that secrecy it seems unlikely that real innovations would remain secret
for long and market competition would increase as a result.

------
linuxhansl
Amen.

The most important part about patents to remember why they exist.

Why would congress grant a legal monopoly to anybody? The reason is (or should
be) to protect any investment that went into the invention; for the benefit of
society as a whole - to make sure expensive research is still going to happen.

An idea does not cost anything. It might have some value if nobody had that
idea before, but the idea would have been had anyway regardless of any legal
protection. It might suck for the individual having the idea, but society is
not served by protecting ideas that came without cost.

Copyright on the other hand is useful and needed, it protects a specific
expression of an idea.

If you translated software patents to books, a patent would be like a legal
monopoly on "science fiction stories", or "crime stories". Whereas copyright
protects a specific store - as it should. Other folks are free to write other
science fiction or crime stories.

Anyway... I am not holding my breath. Also there are so many patents already
out there, these will likely not be invalidated retroactively.

~~~
Snail_Commando
> The reason is (or should be) to protect any investment that went into the
> invention; for the benefit of society as a whole - to make sure expensive
> research is still going to happen.

This is critical. Not just to enable expensive investment, but to create an
incentive structure that encourages scientific research that remains in the
public domain. This is a critical point that people often miss in these
arguments.

In computerland, we don't come up with new computer science every time we
program an application. In pharmaceutical land, you literally have to come up
with new science to make a new drug.

Let's not forget that, as software developers, our perspective and opinions on
patents are not fungible across all domains.

The patent system in the pharmaceutical industry _enables_ a healthy drug
research and design market with proper incentive structures. Abolishing
patents in the pharmaceutical industry would retard research, skew incentives,
and encourage trade secrets.

A patent free system would most likely result in a system of trade secrecy.
Companies would not share their results, they would keep the secret formula to
themselves. It would result in perpetual proprietary lockdowns.

After all, why make public the concept that you just spent billions of dollars
and years of opportunity cost on? So that competitors can manufacture the drug
at essentially zero cost? Nah, we'll just keep that to ourselves, thank you
very much.

Trade secrets are a threat to science.

You cannot build a foundation of science on a platform eaten away by trade
secrecy. Trade secrecy will deprive humanity of the positive externalities of
a significant chunk of pharmaceutical research.

As developers, we see patents as a threat. A sharp implement of the greedy. In
the pharmaceutical world, patents are a necessary rung in the ladder of human
advancement. Yes, it doesn't always feel good to climb this ladder (consumer
drug prices) but without it- there would just be a scrum of companies
scrambling to climb up the research pole, each trampling each other's
investment returns (incentive) to zero. They'd get bruised and go find easier
poles to climb up.

Yes, the patent system in the pharmaceutical industry has flaws. But it is
_the best thing we have_ given the alternatives.

If you are interested, please see see my other comment:
[https://news.ycombinator.com/item?id=7497872](https://news.ycombinator.com/item?id=7497872)

~~~
Snail_Commando
Chapters 9 and 10 of this:

[http://levine.sscnet.ucla.edu/general/intellectual/againstfi...](http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm)

Make a pretty damning indictment of my argument.

Although I never really liked the patent system, I believed that it was
ultimately "the best system given the alternatives" because I believed that in
the absence of patent protection, pharmaceutical output would be reduced from
lack of incentive. Historically, this has not been the case.

Although the authors do agree that abolishing the system in one fell swoop
would be a bad idea because it would be politically untenable, prevent the
reformation of certain institutions e.g. The FDA, and adversely affect medical
researchers and pharmaceutical companies. They instead propose a phased
reformation process which includes but is not limited to reducing the costs of
phase II and phase III clinical trials (via NIH support / reformation),
deregulating patent enforcement and instead affect private contract machinery,
and ultimately phase out patents entirely.

My argument largely rested on my assumption that pharmaceutical companies were
spending their money in a socially optimal way and that pharmaceutical output
would be reduced in the absence of trade protectionism. It seems that
empirically, the pharmaceutical industry is not an exception to the "trade
protectionism is a bad idea" rule-- like I previously tried to argue.

They propose a series of reforms to the patent system (with the eventual goal
of phasing it out) that would reduce costs.

I over estimated the amount of R&D money that was being properly spent. I did
not realize how effective certain parts of the global industry have been in
the absence of patents. And I did not account for the fact that the patent
system incentivizes copy cat drug design. I look forward to finding out where
else I'm wrong about healthcare economics.

~~~
Snail_Commando
For what it's worth,

Here is another place where I made a version of my argument (with some other
context added):
[https://news.ycombinator.com/item?id=7498742](https://news.ycombinator.com/item?id=7498742)

Here is where I retracted the faulty assumptions I made in that comment:
[https://news.ycombinator.com/item?id=7499369](https://news.ycombinator.com/item?id=7499369)

My unchecked assumptions led to a flawed argument.

------
kenster07
There is clearly no reason for software patents. To look at this issue from
another angle, consider the following.

What was the reason for creating the patent system in the first place? To give
people an incentive to invent new things: if someone invests the time in
coming up with something novel, the legal system would give a temporary
monopoly in return.

But in today's world, clearly one would imagine the vast majority, if not all
software would have been invented as is, without the incentives that patent
protection provides. When one contrasts this with the well-known downsides of
software patents, the outcome should be clear: abolish them.

~~~
jordigh
> What was the reason for creating the patent system in the first place? To
> give people an incentive to invent new things:

No, the point of the patent system is not to incentivise invention. The point
of patents is _to destroy trade secrets_. The word "patent" means "open". The
whole point of patents is increase society's knowledge of how to do things.

People invent with or without patents. What they don't always do without
patents is to say how those inventions work. The bargain inventors make with
patents is, tell us how you did it, and in exchange we promise to not compete
with you for a while.

This is an awesome patent:

[http://www.google.com/patents/US5255452](http://www.google.com/patents/US5255452)

This is what patents are supposed to be about: a magician revealing his
tricks. Without the patent system, Michael Jackson may have taken his idea to
the grave.

The problem is that almost none of the people patenting software are
magicians.

~~~
csallen
Destroying trade secrets may be a benefit of the patent system, but it's
historically inaccurate to say that's why the system was created in the first
place.

The Constitution itself gives the reason as "to promote the progress of
science and useful arts". Numerous letters written by the Constitution's
framers support the interpretation that the goal is to incentivize creation by
granting monopolies.

~~~
jordigh
It is not historically inaccurate, it's encoded in the name of the damn thing.
The patent system predates the creation of the United States, and its spirit
is more than the ambiguous summary of "to promote progress".

The history of patents is long, but Queen Anne's statute is where the the
nature of disclosing trade secrets was formalised:

[http://www.ipo.gov.uk/types/patent/p-about/p-whatis/p-histor...](http://www.ipo.gov.uk/types/patent/p-about/p-whatis/p-history/p-history-18century.htm)

~~~
csallen
I'm not saying that patents don't accomplish more than promoting progress.
They do! I just believe your claim (" _The whole point_ of patents is [to]
increase society's knowledge of how to do things") is overly ambitious. That's
an important part of the patent system, yes, but far from "the whole point".

As Thomas Jefferson wrote about the US patent system: "Society may give an
exclusive right to the profits arising from them, _as an encouragement to men
to pursue ideas_ which may produce utility..."

------
ithkuil
What deserves a patent is a, possibly large, investment needed to show that an
abstract idea can be a practical.

The magnitude of the investment is one of the reasons people tend to accept
the concept of patents more in some field than in others.

~~~
bo1024
I disagree. Why does that deserve a patent?

If a particular invention is created that realizes the idea, I agree that the
invention should be patentable, but it sounds like your post advocates patents
on scientific research.

~~~
ithkuil
To be honest I'm not advocating anything. I'd like very much to live in a more
enlightened age than this, but it's a good idea to understand how things work.

If you need money to do something you will get it from someone who wants to
get back something (modulo risk), and the patent system is one way to
transform ideas in value that can be traded. It's not the only way, and not
all the alternatives are better.

My point was that as long as there is a real work behind a patent, people tend
to show more understanding of the need of a patenting system, while being
rightfully outraged in cases of patent trolls and/or plain bullshit.

------
rayiner
There's not a lot of debate about whether abstract ideas deserve patents. The
consensus is that they don't. The debate is about how to figure out what is an
abstract idea and what isn't. On one side, you have an abstract idea like
"hedging settlement risk by using shadow accounts" (the patent at issue in CLS
Bank v. Alice Corp). Almost everyone on the Fed. Cir. thought this shouldn't
be patentable. On the other side, you have something like whatever algorithm
is the subject of the gbatteries patent:
[http://www.gbatteries.com/technology/](http://www.gbatteries.com/technology/)
("Our patent-pending process maintains the lithium ion diffusion at optimal
levels and eliminates concentration polarization and thus allows the Li-ions
to be more uniformly extracted from or reinserted into the cathode
materials."). That probably should be patentable, because while the charging
algorithm might be simple to describe and could easily be reimplemented, it
probably took a lot of R&D to design it in the first place.

The question is, how do you draw the line between the two?

~~~
ScottBurson
I persist in thinking that the problem is not with the subject matter test. A
computer program is obviously a machine, just as the Federal Circuit and lots
of other people intuitively assume.

The problem is with the obviousness bar, which is far, far, _far_ too low. I
haven't studied the _Alice_ patent, but let's take what the NYT says about it
here:

 _The issue in this case, Alice Corporation Pty. v. CLS Bank International, is
whether using a computer to implement a well-established economic concept can
be patented. [...] Alice Corporation obtained four American patents that cover
a method of settling trades between investors in currency and other financial
markets. The approach depends on a neutral middleman to make sure traders
complete the transactions they have agreed to. [...] Alice Corporation has
argued that its patents cover a specific computer-enabled system and method,
not the fundamental idea of using intermediaries in financial settlements. But
CLS Bank, which first sued Alice in an attempt to have its patents
invalidated, says that Alice’s system does not add anything meaningful to a
basic idea._

The NYT Editorial Board is using this argument to urge the Supreme Court to
rule that this patent's subject matter is inappropriate. But I think this can
just as easily, if not _more_ easily, be read as an argument that the
invention in question is obvious. Taking some process that was previously done
by hand and computerizing it, or some part of it, is, in this day and age, a
paradigmatic example of something obvious.

Again: I haven't studied the actual patent. I just think it's unfortunate that
everyone is talking about this as a subject matter problem, when we have a
screaming obviousness problem that the Federal Circuit is right at the center
of.

I want the Supreme Court to tell the Federal Circuit that mere novelty does
not entail nonobviousness. In such a highly generative field as software,
which has an uncountable number of applications, simply coming up with another
one contributes little or nothing to the state of the art. If someone else who
encountered the same requirements could implement a system to satisfy them
just as easily _before_ reading a putative patent as _after_ reading it, there
was no intellectual contribution and the patent should not be valid. This was
clearly the intent behind the patent system at its inception. It should be
restored.

~~~
ScottBurson
> we have a screaming obviousness problem that the Federal Circuit is right at
> the center of

Let me give a cite for that. From [0]:

 _The [Federal Circuit] watered down the rule against obvious patents. Supreme
Court precedents prior to the creation of the Federal Circuit held that merely
combining two previously-known technologies in a straightforward fashion was
too obvious to merit patent protection. To be patent eligible, the Supreme
Court held, an invention needed to be "greater than the sum of its parts."

The Federal Circuit developed a more permissive rule that only allowed a
combination of known components to be declared obvious if there was specific
documentation that someone had suggested that combination prior to the patent
application. The court adopted this rule to guard against the danger that
hindsight bias would lead people to over-estimate an idea's obviousness. But
the court seemed less concerned with the possibility that some combinations
are so obvious that no one would bother writing them down._

[0] [http://arstechnica.com/tech-policy/2012/09/how-a-rogue-
appea...](http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appeals-
court-wrecked-the-patent-system/)

------
MCarusi
The patent situation has become a circus. There's a company claiming a patent
on video advertisements preceding video content, and they're suing every
online media company in existence hoping for shakedowns.

I once jokingly suggested a patent about paying online, but lo and behold,
someone has that too.

~~~
ithinkso
Has someone already patented earning money by patenting everything and then
suing everyone else?

~~~
cheese1756
Yes: [http://www.npr.org/blogs/money/2012/08/01/157743897/can-
you-...](http://www.npr.org/blogs/money/2012/08/01/157743897/can-you-get-a-
patent-on-being-a-patent-troll)

I wish I were joking.

------
matthewsinclair
As a holder of a number of patents (pending and granted), I'm obviously
conflicted here. My early patents came from my days at Nokia Research Centre
where there was a "patent quota". Yep, we had to come up with a set number of
patents per year, regardless of the quality.

My views on patents were (subsequently) very strongly influenced by this
paper: "Against Intellectual Property" by Brian Martin:

[http://www.uow.edu.au/~bmartin/pubs/95psa.html](http://www.uow.edu.au/~bmartin/pubs/95psa.html)

I would encourage anyone with an opinion on the topic to take a look at it.
I'm not sure I agree 100% with everything in there, but the reasoning is very
good.

These days, I'm much more in the "abolish software patents" camp than I used
to be. The only valid reason I can think to have one now is for "freedom to
operate", but I can attest from bitter experience, that simply doing a
defensive publication of the core idea is significantly cheaper than obtaining
a patent on the pretext of freedom to operate.

In any case, a system that necessitates spending upwards of US$100k to obtain
freedom to operate, has something diabolically wrong with it.

------
netcan
Patent systems are bad because they deal with concepts which are too vague. I
don't think we can fix that.

Lets leave aside economic implications for a moment. What is an invention? Is
it really different to a discovery. There is no good way to distinguish
between invention and discovery because they're not distinct concepts.
Distinctions are semantic, even in an archetypical example of patentable
invention like Edison's lightbulb. Inventing a lightbulb is discovering that
electricity can heat a filament, it emits light when hot and can be prevented
from burning by placing it in a vacuum.

These are exactly the types of problems the law chokes on.

------
RexRollman
I'm against software patents, but if we must have them, can't we at least make
them shorter? The software world moves too fast for these kinds of patents to
have the term lengths that they do.

------
josaka
An important distinction here is _why_ the alleged invention should not be
patentable: 1) because it is obvious in view of what was done before; or 2)
solely because it is software, regardless of whether those in the field would
regard it as a significant advance. The latter is a much bigger change from
the status quo, but the article sort of conflates the two.

------
md2be
The Court should provide machine (processor) level protection and rule that
high level programming is obvious, in that it requires only routine
experimentation. The challenge for the court is how to make room for machines
whose novelty is a software control. I would argue that there should be a
moving element test. Is there a software/hardware interface.

------
fiatmoney
"Deserve" is a framing that wraps together a moral claim with what is intended
to be a purely utilitarian calculus (whether a class of patent "promote[s] the
Progress of Science and useful Arts"). As soon as you start framing things in
terms of who "deserves" what, the side who can generate greater pathos wins.

------
EGreg
Make it easier to find prior art and make the loser of a patent suit pay for
the suit. That will prevent the most egregious practice of patent trolls
bullying small companies into settling befofe the case goes to trial. If the
cost of losing a patent litigation was higher, trolling would become
economically riskier.

~~~
axman6
> Make it easier to find prior art

How, exactly?

~~~
EGreg
USPTO has partnered with askpatents.com of StackExchange fame

I was at the roundtable where they announced it:
[http://www.uspto.gov/patents/init_events/sw_partnership_2013...](http://www.uspto.gov/patents/init_events/sw_partnership_20130227_nyc.jsp)

------
JosephHatfield
Anyone care to conjecture the practical effects of invalidating software
patents beyond saving everyone involved time and money to litigate those
patents? It may be valuable for that reason alone, but I'm trying to imagine a
world where suddenly, overnight, all software patents are eliminated.

------
badman_ting
Except for the patents that huge organizations already own, right? So they can
go on using those to beat the crap out of each other and crush threatening
offerings from smaller firms. Pick up the ladder after you climb it. Sweet.

~~~
sushirain
What are you saying, that the judges should allow this patent?

The solution is to make laws that forbid software patents. And if the old
patents can be abolished, the better.

------
joelgrus
For me, the ad at the bottom of the page is "How To Patent Your Idea".

------
thomasahle
Does anyone have a link around the paywall?

~~~
Aineias
Or open the mobile link.
[http://mobile.nytimes.com/2014/03/30/opinion/sunday/abstract...](http://mobile.nytimes.com/2014/03/30/opinion/sunday/abstract-
ideas-dont-deserve-patents.html)

------
alisnic
ok.

------
diminoten
And they don't get them. Business methods get patents.

Why is this basic, fundamental concept not understood by people who purport to
know about "software" patents?

------
codeoclock
Can we talk about paywall links on HN?

~~~
pbhjpbhj
I think that's a good idea, but as a separate story.

------
grifpete
I can't read the original article because it is behind a
paywall...BUT...abstract ideas do not get patents.

This is not my opinion, it is fact. Look it up.

~~~
chrismcb
You do understand what the current lawsuit is over, right? It boils down to
someone has patented an idea, the other guy says "you can't do that." The
original pantentee is saying "but it is an implementation running on a
computer"

~~~
grifpete
As I made plain - I couldn't read the original article. But let me see if I
understand you correctly. a) person A has a patent (which incidentally as a
matter of law cannot be for just an abstract idea) b) person B challenges the
patent - I am not sure what the grounds for this challenge are because you
don't specify them. Is it because B is claiming that the patent was falsely
awarded because it was no more than an abstract idea? c) person A disputes the
challenge by pointing out that it isn't abstract.

If this interpretation of your comment is correct then I don't see how it is
in conflict with my observation that abstract ideas can't be patented.

------
danford
As someone who is currently residing in the year 2055 and has a neuro-
prosthetic, I believe corporations and governments _need_ access to our brain
machine interfaces so that when we copy a patented or copy-righted idea to our
memory they can safely delete it. How could people make money in my time if I
can just remember their data? Support the Data Control Agency!

