

EFF taking on software patent reform - bits
http://defendinnovation.org

======
iwwr
EFF's position is too moderate. 5 year monopoly on software ideas? If not even
the EFF is willing to take an unequivocal stance against software patents, the
trolls and the system will keep their legitimacy.

We should not be afraid to take (seemingly) radical positions. Fear of
offending the status quo is what keeps it in place. Not too long ago the idea
of patenting a theorem or a gene was dubious; the moderates may only slow the
tide, not push it back.

~~~
rayiner
A 5 year monopoly on software ideas is no more ridiculous than a 5 year
monopoly on mechanical ideas or chemical ideas.

~~~
sseveran
Very different. The cost of coming up with chemical compounds is often quite
large. With software most new work is done by very few people.

~~~
rayiner
At the same time, a successful chemical compound might mean tens of billions
in sales. A modest software innovation might have a very niche application
with much smaller sales.

Is a small research team less entitled to protect their novel work than a big
corporation?

~~~
jessriedel
If you use the word "entitled", you're thinking about this wrong. Patents are
not designed to protect fundamental rights (e.g. to a "reasonable" profit),
they are designed to maximize societal good by balancing a monopoly incentive
with the benefits of open use.

------
elisee
"If the patent is invalid or there's no infringement, the trolls should have
to pay the legal fees."

By offering to reduce the time to five years, they are implicitly supporting
the idea of using and defending the patent for those five years. You might
legitimately think there's infringement and then the court might find
otherwise. Calling anyone who goes to court with a patent a troll seems
unnecessary in that case.

"Infringers should avoid liability if they independently arrive at the
patented invention."

You don't pay damages, and then what happens? Do you still have to get a
license or can you keep going because you invented it on your own? Also: how
do you prove you independently arrived at the patented invention? Who's burden
is it to prove / disprove it?

------
PeterisP
Wrong. EFF, this is not what we the members are asking - software patents
should be abolished, not changed to "acceptable" terms. It's just a boil-the-
frog strategy. There are no conditions that would make software patents a good
thing ethically and economically.

~~~
wissler
Indeed. I was about to go contribute, but then I saw that it's a total
concession in principle. I don't want haggling over how much when a robber
robs me at gunpoint, I want the robber to be stopped. I don't want a
concession to the principle that robbing is legitimate.

------
nroach
Number 4 is a tragically bad idea: "Infringers should avoid liability if they
independently arrive at the patented invention." I love the EFF (and donate)
but as a litigator it appears entirely unworkable. The root problem is that
this proposal commingles the standards for copyright and patents. In copyright
law, independent creation means there was no copying, and thus no
infringement. Patents (sw or otherwise) are entirely different and exist for
different purposes. Patents protect early work done by inventors from poaching
by later (or larger) entrants. The inherent tradeoff is that the inventor must
disclose to the world how his invention works in exchange for receiving a
limited time period of market exclusivity. (EFF #1 is spot-on that the current
time period is too long for software). However, the EFF is saying "If
inventors can’t understand a patent, then they, as a matter of logic, cannot
copy it. Likewise, if inventors don’t know about a patent, they cannot copy
it." If all inventors required was copy protection, they could rely on
existing copyright law. Patent protection is important because it protects
'non-literal' duplication through the doctrine of equivalents and other
established principles. Done right, a patent system should protect small
inventors whose creation is groundbreaking in their industry, but that could
be easily reverse-engineered or duplicated by the big players based simply on
recreating the inventor's product without literal copying. TiVo vs. cable DVRs
is a good example.

~~~
snewman
Yes #4 could be problematic if not implemented carefully, but it is addressing
a real problem. Parallel evolution is commonplace in the tech industry. In the
current system, if two (or three, or twenty) companies legitimately and
independently happen onto the same idea, whoever gets the patent can blindside
the others. Often after the other inventors have made large investments in
developing and fleshing out the idea, possibly to a much greater extent than
the patent holder. This makes no sense, whether you're interested in promoting
innovation, or simple justice and fairness.

~~~
rayiner
I think the impetus for #4 goes away if we raise the bar for obviousness,
which we need to do. If you patent a complicated system, it's vanishingly
unlikely that someone will come up with an independent version of the same
idea within the patent term. If 20 companies legitimately happen onto the same
idea, to me that suggests the idea is too obvious to be patentable.

------
rayiner
A lot of people think we should get rid of software patents entirely. I'm
curious to get peoples' feedback on this:

I spent years working for a wireless startup. Our innovation was in the domain
of software, but our product was not software--software just drove the product
(military radios). The algorithms took years and millions of dollars of
research to derive, and we patented them.

I think that business model is valuable, and it's extremely common. The
companies that manufacture radios, telephones, networking equipment, etc,
don't necessarily have the agility to come up with innovative software, and
the small firms that can come up with innovative software don't have the
manufacturing capability to go into the end-user product market. Software
patents allow them to focus on their core competencies, then engage in
mutually beneficial transactions with the assurance that the legal system will
keep them from getting ripped off.

So my question is: how would businesses like the above work without software
patents?

~~~
kkowalczyk
Unless you open-source your code or describe it publicly, I can't tell what
algorithm you use.

So there are 2 possibilities here:

1\. Your algorithm really requires years and millions of dollars of research
to develop, in which case you have little to worry about - your competition is
years behind you and probably doesn't have millions of dollars to spend on re-
developing the algorithm. Trade secrets will work for you just fine.

2\. Someone can quickly and cheaply come up with the same algorithm
independently from you, in which case you don't deserve patent protection in
the first place.

When it comes to patents, everyone brings the "super hard, expensive to
develop" case, which carries the assumption that they're so smart that no
other persone on the planet can come up with the same idea.

The reality is that even the patents that survive in courts and reap millions
of dollars in damages, are laughably trivial and are a result of routine work
of software developers, not to mention the vast number of patents that were
granted and then stricken down during litigation, but only after both sides
spent hundreds of thousands of dollars on said litigation.

~~~
rayiner
> Unless you open-source your code or describe it publicly, I can't tell what
> algorithm you use.

But how do I sell it to someone without opening the code or describing it to
them? With trade secrets, I'm forced to go into the business of building
military radios (or whatever). What sense does it make for a small shop of
wireless technology experts to go into the manufacturing business, learning
how to manage supply chains, support end-users, etc?

That's the very problem patents were designed to solve 200+ years ago when
they were introduced. To allow a separation of design from manufacturing. To
allow the guy who invents the telephone to sell it to someone without going
into the business of making telephones.

Think of other property abstractions, like stock. Stock allows separation of
the roles of investor and manager. The CEO doesn't have to come up with the
capital to buy the company, and the shareholders don't have to figure out how
to run it. That's a useful separation of concerns. Patents allow separation of
the roles of designer and manufacturer. ARM can focus on designing CPU's and
patenting the novel features. They don't have to get into the business of
manufacturing all of the different products that might contain their CPU core.

------
seats
Tangential, but was just thinking about this today.

Last week I visited the white house as a part of this program ->
<http://www.businessfwd.org/>

The two topics I brought up with the administration were patent reform and
immigration reform. Brought up all the obvious issues that play on HN
frequently. Today I got a follow up email intro to someone at the USPTO and
here's a copy of my reply to that person. I also pointed him to the
defendinnovation.org.

Text of my message to USPTO----

The main concern I brought up during the white house visit was around software
related patents and frivolous lawsuits by trolls. I'm sure you get this
question often from technology and startup folks, but in my opinion it's
pretty clear that the USPTO is effectively levying a giant tax on output of my
industry due to issuance and complicit enforcement of patents around
elementary concepts.

To me the biggest costs to our economy come in the form of -

\- fear of patent conflicts prevent new companies from doing truly novel
things that would generate jobs and innovation

\- costs of licensing patents from trolls or patent groups impede growth of
companies at the most delicate nascent stage (e.g. MPEG-LA or Intellectual
Ventures)

\- settlements out of court with trolls and/or direct costs of litigation to
defend (for the bravest large companies who want to take a stand, e.g. google)

\- giant piles of money burned litigating frivolous patent disputes between
large companies as a proxy for competing directly in the market (oracle vs
google)

In general software patents attract the worst elements of the free market.
People and companies that take advantage of the system, who extort, abuse and
profit from the structural deficiencies of the USPTO. A typical patent troll
group will acquire a set of frivolous software patents covering concepts in
use in literally any major piece of software so that technically every large
company is an infringer. They will then approach a set of large or medium
companies with a veiled threat and offer to sell a share of the patent troll
entity. They give a choice to their target to get on board or take an ethical
stand and if the victim chooses the later, they'll get sued for infringing and
likely be forced to settle because truly there is infringement according to
the drafting of the patent that was granted. It's the modern mafia.

The root cause of all of these problems are two fold

1 - granting of patents for non-novel and trivial software and concepts

2 - inability to efficiently litigate and have a patent invalidated by
demonstrating that it is truly trivial

Google is a major force of good in this fight and the Oracle litigation has
shown my industry a great deal of hope on this front. In particular Judge
Alsup on that case showed a very keen understanding of the technology in
question and how ridiculous the patent was that Oracle litigated with. That
story had a happy ending, but honestly in large part because of that one
judge. If this were a different court there could have been a vastly different
outcome.

[http://news.cnet.com/8301-1035_3-57445082-94/judge-
william-a...](http://news.cnet.com/8301-1035_3-57445082-94/judge-william-
alsup-master-of-the-court-and-java/)

My question to you is simple - How can we address these root causes?

The current patent system and review system was not designed for software and
is clearly failing to adapt to the current environment and pace. USPTO is
granting patents at an ever increasing rate. We quite literally are in such a
broken state that I would wager that every piece of software being sold today
is infringing on some patent. How long until that structure completely halts
the development of any innovation at all?

Too big of an issue to ignore. Thanks for listening.

------
dfc
Recently someone posted a link to change.org petitioning the EFF to take a
tougher stand on patents:

 _Petition the EFF to Oppose Software Patents_ \--
<http://news.ycombinator.com/item?id=4134873>

------
law
I appreciate their efforts, but I disagree with a couple of their points.
First, their use of the term 'troll' automatically imbues the reader with a
sense of the type of person from whom this effort attempts to protect
innovators: people whose single business purpose is the collection and
enforcement of patents. That's simply a small, yet quite vocal, subset of the
majority of people who benefit from patent law, and who should be entitled to
protect their inventions.

With that in mind, I completely agree with limiting the term of software
patents. In fact, I agree with limiting the terms of patents, generally; not
inventions are the same, and technological innovation across various sectors
does not progress at the same rate. Pharmaceutical patents, for example,
typically aren't enforced until FDA approval occurs (which is sometimes up to
15 years later, giving them only 5 years to recoup the often immense
investment in the research leading to the drug!).

The second point is awful: why should someone with a bona fide claim in patent
infringement have to pay when the court rules against their favor in something
that's an arguable question of law? Claim construction is done by the court;
that is, the judge is the one who decides what claims in a patent mean. If the
judge's decision goes against what you reasonably believed to be a correct
construction of the claims and the defendant then prevails on a motion to
dismiss, but you appeal, and the Court of Appeals for the Federal Circuit
reverses, but then the defendant appeals and it goes to the Supreme Court,
which agrees with the original judge and by dint of their judgment creates new
law? Shouldn't both parties have to pay their respective attorneys' fees here?
Of course. Oh, you mean cases of vexatious or malicious litigation, which are
effectively extortion? Call the bar association of the lawyers involved, and
file an ethics complaint. Patent trolls can be kept in line with ethics
complaints.

I disagree with 3, because it violates due process unless there are
significant changes to the Patent Act. Keep in mind: there's a major
difference between sufficiency of disclosure and _actually_ practicing an
invention. Patent law has never required an inventor to actually produce or
manufacture their invention, because it understands that sometimes, this is
impossible. In software cases, what happens if you've imagined a beautifully
complex system that's novel and non-obvious, but the software, skills, time,
etc. required to bring it to fruition preclude you from doing so for whatever
reason? What if you instead wish to license the invention to someone who can
produce or manufacture the software? This provision would perpetuate corporate
oligopolies by entitling those with the resources to reap the benefits of
patent protection. We cannot allow this to happen.

That brings me to independent inventions: I'm on the fence about this.
Copyright law has something similar to this, but patent law doesn't, and I'm
not really sure why. My only idea is that during the inventive process, you
will always be looking to prior art, and a reasonably prudent person would
likely discover the patented subject matter during this process. Of course,
this doesn't address the concern with an 'ignorant inventor' independently
inventing something patented. Here's the issue: issued patents are published,
and the public is 'on notice' that this invention is no longer in the public
domain. Of course, there are more than 7 million patents, of which maybe 2
million or so are active. While possible, it's just not the best use of
someone's time to ensure that they're not infringing on someone else's
invention. But it's also unfair to the inventor who took the steps to patent
their invention if this 'independent inventor' is allowed to reap the benefits
of something taken out of the public domain with notice given. I guess the
problem we have is that notice isn't 'effective', and that falls onto the
patent office: they need a better categorization system. This is a problem
with the executive branch, rather than the legislative or judicial.

Finally, I just want to talk about the sixth point, that someone shouldn't be
allowed to collect 'millions' for a 'tiny infringement.' To me, this
discredited the entire post, because it unnecessarily muddies the water with
regard to liability. Patent infringement does not lead to treble damages
(which I guess they fear), but willful patent infringement does. When an
inventor sends you a cease and desist letter and you continue to practice the
invention knowing that you're infringing, then you're liable for enhanced
damages. But, you have to continue practicing the invention in willful
disregard to the patent--it's a jury question.

In short, the patent system IS in need of reform to take into account the
mutability of technological advancement. However, let's not jump to
conclusions and pollute the Patent Act with exceptions to a technology that
appears on its face to be an exception; we need to find and eradicate the root
cause of the perceived injustices.

~~~
reader5000
I think independent invention is really key to the whole issue. If a
particular problem is solved in a similar way by multiple independent parties,
then the solution on its face should be unpatentable due to obviousness.
Independent invention should always be permissible evidence in overturning any
extant patents.

The whole idea of a patent is "but for my ingenuity and investment you never
could have solved this technological problem. Therefore you must pay me to use
my solution."

If it is not the case that nobody could have solved the problem but the patent
holder, then the patent is invalid.

~~~
law
That's a very good point, but recall that the standard is the hypothetical
person who is presumed to have known the relevant art at the time of the
invention. From KSR, we know that it's this person who's the baseline for
determining which, if any, inferences or creative steps are obvious.

If a person NOT falling within this definition were to independently arrive at
an invention and could have arrived at the same invention prior to the
issuance of that invention's patent, then there's an issue. KSR states: "a
person of ordinary skill in the art is also a person of ordinary creativity,
not an automaton." It follows that a hyper-creative, one-of-a-kind person who
proves that he or she independently arrived at the invention would not be this
hypothetical person. Although obvious to a genius in the art, it was non-
obvious to a person having ordinary skill in the art. That's where I disagree
with your reasoning.

EDIT: This is not to say that the genius in the art should be out-of-luck. He
or she should be entitled to continue practicing the invention, but the patent
itself shouldn't be invalidated. This should be evaluated on a case-by-case
basis and treated as an exception to the general rule.

------
reader5000
I think this is a good set of reforms to investigate, but I think a real
problem is simply the PTO issuing bad patents, a large percentage in the realm
of software, for the past decade or so. By "bad" I mean failing a basic
novelty/obviousness analysis.

I think it's more of an issue in software because software developers are
essentially producing tens of "inventions" a day, every day, any of which are
potentially infringing due to poor PTO operation. Whereas in something like
chemical engineering a patent might affect maybe a few hundred other well-
capitalized firms at a single point in their process, in software for any
given app/developer potentially multiple patents are implicated in the course
of a normal day's work.

A lot of patent trolls seem to be exploiting "we got here first nya nya"
patents. That is, they patent solutions to problems that the market has not
deemed significant enough to solve yet (like in app purchasing, before the
iphone). When the market does move and encounters these problems, the
straightforward solution(s) are developed, and then in swoops the patent
troll.

The PTO just needs to become more sensitive to the unique industry that is
software development: the high natural rate of invention, the high likelihood
for multiple independent similar solutions to problems, the fact that a
problem hasn't been solved yet doesnt mean the first submitted solution should
nor can be patented, etc.

I think if a patent holder can show "but for my solution, you never would have
solved this problem in a reasonably efficient manner" then sure, let's protect
his IP. Determining when that condition is true is obviously difficult, but
the current PTO strategy of giving the benefit of the doubt to the patent
applicant has proven a bad bet.

------
agravier
I say, at that point, let the FSF "reform" software patents.

------
rubberband
This seems like a good first step.

I never understood why people think we should try and abolish software
patents. We can't. Period. There's too much money in them. We can attempt to
reform or reshape them so they are less destructive, but crying for total
abolition seems to be akin to attempting to abolish the IRS. It might make
sense in a perfect world, but it will never, ever happen.

~~~
slowpoke
_> There's too much money in them._

This is not an argument. I'm pretty sure there was a lot of money in the slave
markets as well. Didn't stop the US from abolishing it, though.

------
padobson
If we're going to be moderate about this, the source code should need to be
public and open sourced after the term of the patent expires.

~~~
JackC
I think that's probably covered by this: "Patent applicants should be required
to provide an example of running software code for each claim in the patent
and tell the Patent Office which claims are covered by which lines of that
code."

The reference implementation in the patent itself would almost certainly be
public domain once the patent expired.

------
sneak
It is already against the rules to patent an algorithm, as they are considered
mathematics and thus unpatentable.

The reform we need is just better application of the existing patent rules.

~~~
SkyMarshal
Anyone know the legal distinction between an algorithm, which is not
patentable, and a business method/process, which apparently is?

I wonder if a viable legal strategy could be to have the definition of the
former extended to the latter in some way.

------
forgottenpaswrd
Most important of all, if you want a patent, provide working code.

