
End Software Patents (2007) - praveenscience
http://endsoftpatents.org/
======
craigsmansion
Let's not pussyfoot around then. Let's enforce software patents rigorously,
_and do it retroactively_.

Now we can make it easy on ourselves and cut a single cheque of what amounts
to basically _all the value in the world_ to Don Knuth. I'm sure he can pass
various bits on to the other stake holders.

Congratulations:

\- The technology company you work for is now out of business, you're jobless.

\- Don Knuth is now Emperor of the planet.

...

which sounds like a pretty good state of affairs, really. Satire isn't
supposed to end up like that.

However, bottom line remains: no one who would be a real stakeholder in the
field is in favour of software patents. Software is mathematical; again, no
experts have ever argued software isn't mathematics, almost by definition.

~~~
Tomte
Knuth did invent many algorithms, but it's still a miniscule part of his
oeuvre.

Knuth is so fundamental to computer science, because he sighted, assessed,
categorized and published the main body of the field. That's curation, not
invention.

------
zmmmmm
I think its possible to have a good software patent. However in my quite long
experience in the software industry, I quite literally have never seen a
software idea that was actually patented and which convincely passed the
"skilled in the art" novelty test. Nearly everything I have seen would be
logically thought of by someone even moderately skilled in the art if
presented with the same requirements. So I think the conclusion is, even if
there are a few "good apples" if the barrel is full of 98% "bad apples", you
really should throw out the whole barrel.

~~~
GoblinSlayer
Maybe apply some simple formal criterion, like if function is implemented in
under 100kloc, then it's trivial and invalidates the patent.

~~~
greyfade
I think it's fair to say that LoC is perhaps the least relevant metric it is
possible to imagine.

Languages differ in expressive power in ways that effectively mean that
200kLoC in one language is trivial to implement in a few thousand lines in
another. Even within one language, two implementations of the same effective
feature can be devised with similarly large differences in line count, if one
prioritizes brevity over efficiency.

A simple criterion like this would be laughably useless and abused to absurd
degrees.

~~~
GoblinSlayer
I don't mean that 200kloc implementation proves non-triviality, I mean 100kloc
implementation proves triviality. Also efficiency is achieved by
implementation of specific algorithm, not by code formatting.

------
WilliamEdward
I think the patent system is broken, not software patents.

Patent trolling is blatant abuse, and none of these loopholes ever get fixed
because patenting is a one hundred year old legal concept that hasn't been
touched in decades.

Why not create a better system? To patent your idea it should have to be non-
obvious; therefore pinch-to-zoom wouldn't be patentable. To patent your idea
it would have to take a significant amount of work to implement. Maybe certain
'types' of ideas cant be used to litigate for financial compensation.

Really theres so many ways the system could be better but i don't see the need
to throw it out. People like having their ideas protected and valued. The
concept is there, it's just been corrupted by corporate greed.

~~~
saberdancer
It's important to allow protection for ideas/products/software/drugs that take
a large amount of investment to develop. If you spent 10 years and millions
developing a better video compression algorithm, why there should not be a way
for you to offer it to market, but at the same time have it protected against
copying.

Similar problem occurs in biotech, if you developed a drug and proved it helps
cure a disease, usually it is trivially simple to create the same drug
(generics). This means that without a patent, companies would lose part of the
incentive to innovate.

However, if your patent is simple, it's an idea like pinch to zoom that
realistically didn't need millions in research to develop, then that patent
should not be granted as the purpose of the patent is not return on investment
from research.

~~~
TheAceOfHearts
One of my big problems with file format patents is that historically they've
been abused and used to place artificial restrictions on the user. There
should be playback and encoding exceptions for personal non-commercial use, or
at the give the user an option to export / convert their media into a standard
format.

Have people forgotten the terrible user experience with media file formats in
the 90s and 00s? You had to download a bunch of codecs and fiddle around with
different programs in order to watch a video. The details on this point are a
bit fuzzy, but I also remember having to needlessly jump through hoops in
order to encode some audio files for my MP3 player. Fast-forward to the
current year: now I can use ffmpeg for conversions and either mpv or VLC for
playback, providing a vastly superior user experience. This is only possible
because the developers of these tools have opted to completely disregard
software patents.

------
derekp7
I'd be happy with and end to low quality patents (i.e., doing "X" but on the
internet). Basically, any patent that an average software developer would
violate just in their normal course of work (without prior knowledge of the
specifics of a given patent, but possibly with knowledge of the problem to be
solved). Of course, patent law has this covered already with the "non obvious
to those skilled in the art", but this seems to have no meaning anymore.

~~~
welder
> Basically, any patent that an average software developer would violate just
> in their normal course of work

By definition that's every software patent, given the same problem to solve.

Donate:
[http://endsoftwarepatents.org/donate](http://endsoftwarepatents.org/donate)

~~~
derekp7
What about ones like the RSA patent? From what I understand, the requirements
were laid out ages ago, but it wasn't known if any algorithm could meet those
requirements until the RSA algorithm was developed.

Of course, RSA is just math, and patent law already forbids patents on math
(but somehow unless it is math related to computers). But that was just the
first example off the top of my head of algorithms that took a bit of work to
develop (just like many other encryption algorithms, or ML algorithms, etc).

------
deogeo
An argument that's rarely made: Almost everyone whose work would be protected
by software patents, is fervently opposed to them. Except patent lawyers and
multinationals. That should tell you everything on whether they're a good
idea.

~~~
CalChris
Ask Larry Page if he is _fervently_ opposed to software patents.

[https://patents.google.com/patent/US6285999B1/en](https://patents.google.com/patent/US6285999B1/en)

~~~
NeedMoreTea
It's years since it was _his_ work.

Now it's protecting the turf of the large corporate, from any whiff of
competition by fair means and foul.

~~~
CalChris
About 20 years. In fact it expired on June 2 and you’re free to use it. You
are free to use the work that he was incented to do. His work is now our work.

------
gohbgl
Everything they listed is also true for non-software patents. End all patents.

~~~
egdod
This is the only intellectually honest case for ending software patents.

Methods have been patentable for as long as we've had a patent system--why
should they become unpatentable because they're machine-implemented?

~~~
kemitchell
Perhaps methods should become unpatentable when implemented by machine because
the cost-benefit of the patent bargain in current context no longer advances
the public policy behind patent law.

~~~
gohbgl
As far as I know there is no evidence that the patent system as a whole is a
net benefit to society. The negative effects are clearly visible like the
formation of oligopolies, litigation costs, licensing costs and so on. So
unless one can present data that the positives outweigh the negatives the
whole system should be abolished. As a practical matter it might be much
easier to end software patents than it is to end all patents.

~~~
rayiner
I mean adoption by nearly every legal system in the world is a pretty good
indicator. You’d think developing economies would be trying to unchain their
competitiveness by getting rid of patents, but as China outgrows its phase of
stealing technology and starts the phase of developing original technology,
it’s developing its patent law and providing for enforcement.

~~~
fulafel
Developing economies get pressured to implement western style IPR regimes as
part of trade negotiations, to the point of getting draft legislation written
by foreign powers.

See: [https://www.grain.org/article/entries/399-information-
feudal...](https://www.grain.org/article/entries/399-information-feudalism-
who-owns-the-knowledge-economy)

(whole book:
[https://www.anu.edu.au/fellows/pdrahos/books/Information%20F...](https://www.anu.edu.au/fellows/pdrahos/books/Information%20Feudalism.pdf))

------
WalterBright
It's interesting to consider that the US industrial revolution got its start
by stealing patented ideas from Britain.

------
solinent
Software occupies an interesting boundary between engineering and mathematics.
Software patents for trivial things typically do not exist, it is just a
misreading of the patent--they start very generally and end up in specifics.
As long as you change some of the particulars, you are allowed to file for a
new patent.

Just because innovation happened without software patents does not mean that
higher quality innovations can not exist with patents. I know of algorithms
which give certain companies an edge in their flagship international products.
If these algorithms were able to be patented globally, it would be a large
benefit to the entire industry. Since China is part of this market, the
company does not patent this algorithm and instead keeps it as a trade secret.

I think in this case it would be better if the algorithm was patented.

We need to distinguish this case where the patent is truly non-trivial and
would not be able to be re-created without great expense. It's very difficult
to evaluate this, especially for those who aren't experienced.

Honestly, I don't think "end of all software patents" is the solution here.
Imagine if NNs were developed completely as a trade secret.

~~~
rayiner
Imagine if the secret sauce that makes Apple’s trackpads the best had been
patented and disclosed. It’d be out of patent soon and we could have Windows
laptops with decent trackpads.

~~~
comex
As it is, at least Windows laptops can try to replicate that secret sauce. Or
just reverse engineer it: we're talking about software patents, and pretty
much all of Apple's software is available unencrypted in binary form and can
thus be reverse engineered by those with the right skills.

The idea that Apple would have a goverment-enforced monopoly on good trackpads
for _20 years_ sounds like a far, far worse outcome to me. If it were 5 years
or less, maybe...

~~~
jacques_chester
IIRC Bezos argued that software patents should have 9 years protection, which
seems like a good compromise to me.

------
eof
Software should be copyrighted not patented. I don’t think it’s any more
complicated than that.

~~~
pnw_hazor
Patents are about protecting how something works.

Copyright doesn't do that at all.

~~~
eof
That’s not true. Copyright of source code would protect your invention.

However if someone else wrote their own code to do the same thing, it would
not be protected, which is the point.

~~~
pnw_hazor
It protects the code not the invention. Rewrite from C to java and you get
around copyright.

With respect to patents, inventions are about how you do something. Whether it
is written in java or C is irrelevant. Similarly, for gadget patents, the
material it is manufactured out of doesn't matter.

~~~
eof
Perhaps that’s an edge case not well covered? Is my copyrighted English work
not covered if someone translates it to another language?

~~~
jcranmer
Translation is one of the canonical examples of derivatives works [1], and one
of the rights implied by copyright is the right to control the production of
derivative works.

The question of rewriting a library in a different programming language has
never been litigated, to my knowledge, so there's no precedent as to whether
or not it would violate copyright. The customary practice is to assume that
the code produced by anyone who has seen the original source code would
qualify as a derivative work, and therefore to rely on a clean-room
implementation, where one group inspects the source code and builds a spec
that a second group uses to implement the replacement.

In the absence of legal precedent, the customary practice tends to be accorded
legal preference, so it's reasonably likely that a court would rule that
somebody who looks at a C implementation and produces a Java implementation
without any intermediaries would constitute a derivative work and therefore be
in violation of copyright if not properly authorized by the copyright owner.

[1] It's literally the first example given in the US law.

------
zoobab
In the US, the Alice supreme court decision killed most of them. But the USPTO
changed its own rules to keep going.

IBM and al are pushing for a law to restore them (the STRONGER patent act).

EPO ignore the law and the courts to keep granting them. And european courts
gonna be replaced by puppy captive Unitary Patent Courts.

------
siphor
i get a large majority of software patents should not exist, but are there no
software ideas that are truly patentable?

what makes a "physical" patent you consider valid different from a software
patent?

I know there is some difference, it's hard to formalize though.

Say someone spent years building a compression algorithm 10x better than
everyone else's in some novel way and then tried to capitalize on it. And then
google just copied the idea and put this guys company out of business. Isn't
that bad?

~~~
chrismcb
No, there are no software ideas that are truly patentable, because ideas area
not patentable. Code is copyrighted. Algorithms shouldn't be. If you spent
developing a better compression, then sell the software, but don't release the
algorithm.

Some of the problems with software patents is "on a computer" or "on a server"
just aren't novel enough. In fact, that is the problem with most patents, they
aren't novel enough.

~~~
egdod
> ideas area not patentable

Totally wrong. Ideas are exactly what is protected by patents.

~~~
wiggles_md
Patents protect inventions, not ideas.
[https://www.legalzoom.com/articles/can-you-patent-an-
idea](https://www.legalzoom.com/articles/can-you-patent-an-idea)

~~~
egdod
What’s an “invention”? It’s not a particular physical embodiment.

------
lidHanteyk
Well, yes. Software is clearly not eligible for patent protection.

~~~
dymk
“Clearly”? The current state of affairs indicates it’s anything but.

~~~
User23
Premise 1: Legally pure mathematical objects cannot be patented.

Premise 2: Algorithms are pure mathematical objects.

Tentative conclusion 1: Algorithms cannot be patented.

Premise 3: Hahaha, lawyers don't know math but they do know billable hours.

Firm conclusion: See figure 1[1].

[1] [https://www.dourish.com/goodies/see-
figure-1.html](https://www.dourish.com/goodies/see-figure-1.html)

~~~
pron
This is often repeated but wrong, because this is not how patents work.

You could present _any_ patent as a discovery of a "pure" fact about physics
or mathematics: a particular configuration of physical objects would behave in
this particular way according to the laws of physics, or, a certain abstract
dynamical system described by this formula (i.e. algorithm) has these
properties. The thing is, the patent doesn't protect the _discovery_ or the
knowledge or the fact itself. Even with a patent, anyone is free to study the
design/algorithm, teach it, write about it, print it on a T-shirt etc.; in
fact, patents are _meant_ to help spread the knowledge they contain -- in
exchange for a certain protection. What the patent protects is the
exploitation of the discovery in some physical product for certain ends, i.e.
not the fact about the universe/mathematics, but its practical implementation.
So in this respect software patents and, say, mechanical patents are exactly
the same: a monopoly is granted for some years on the _practical exploitation_
of certain physical/chemical/biological/mathematical facts in certain ways and
for certain means.

~~~
lidHanteyk
Sure. So, an algorithm isn't patentable. But a particular encoding of that
algorithm might be patentable by your logic? However, copyright, not patent
rights, protect encoded algorithms!

There are many possible programs, but only some are useful. In this sense,
patents might protect only those useful programs, and not the useless
programs. However, you'd have to write new law to cover this case.

Laws written before the advent of information theory are missing fundamental
truths of mathematics. In this case, given that patent law already knows about
mathematics, surely patent law is prepared to yield.

~~~
pron
> So, an algorithm isn't patentable. But a particular encoding of that
> algorithm might be patentable by your logic? However, copyright, not patent
> rights, protect encoded algorithms!

No, an algorithm _is_ very much patentable (and _not_ copyrightable, while a
program is copyrightable but not patentable), it's just that the patent does
not _protect_ the notion or knowledge or mathematical fact of the algorithm --
in fact, it very much makes it public -- it's just gives a monopoly for
_exploiting_ the algorithm for some business benefit.

> Laws written before the advent of information theory are missing fundamental
> truths of mathematics. In this case, given that patent law already knows
> about mathematics, surely patent law is prepared to yield.

As I said, this reasoning is irrelevant. _Every_ patent is some "truth" of
physics, chemistry or mathematics, but the truth is not what's being granted a
monopoly. Everyone is free to know it or teach it. Rather, it is its
implementation for profit that's protected. Moreover, because I believe that
in the US patents apply to physical inventions, the language of software
always describes some computing device computing an algorithm. It seems that
technically everyone is allowed to perform the algorithm by hand, even to
exploit it for profit.

Software patents are therefore not different in principle than any other kind
of patent, but they are different in practice, simply because of how they've
come to be used.

------
dang
A small thread from 2009:
[https://news.ycombinator.com/item?id=492233](https://news.ycombinator.com/item?id=492233)

------
chris5745
If software patents were “ended”, what would replace them? Trade secrets?
Everything out in the open under a use license?

~~~
deogeo
No need to speculate - the EU, Russia, India, South Africa, and New Zealand
have no patents on pure software - I'm sure there are other places too.

~~~
chris5745
So what do software inventors in these countries do with their inventions?

Edit - It seems to me that there’s clamoring about software patents without
suggestions for alternatives. Were software patents always disallowed in these
countries? If not, what was the overall effect of “ending” them? Was there
innovation and business activity, before and after?

Edit2 -
[https://patents.google.com/patent/RU2470358C2/en](https://patents.google.com/patent/RU2470358C2/en)

~~~
deogeo
> software inventors

Are those the companies that force patented technology, to the exclusion of
free alternatives, into widely used standards, so that they can charge
everyone that wants to read a FAT32 filesystem?

The ones that patent an idea, not method, like one-click buying, or minigames
in loading screens?

The ones that have some overly broad, unreadable patent, that would be
invalidated in court due to countless prior art, but use it to extort
businesses for amounts too small to make litigation worthwhile?

Or is this some mythical inventor, that creates something actually useful, and
licenses it to others at fair prices? Something that improves the state of the
art, but bizarrely does not rely on any prior patents in that area (otherwise
existing companies could simply block the use of the new method)? _And_ this
someone isn't already employed at some company where the invention was made
during the normal course of R&D (because otherwise, you already have your
answer as to what software inventors do - write software/do R&D for existing
companies that need it).

How many such people are there? Enough to justify the enormous headache of
software patents?

------
aledalgrande
Curios: how many investors still consider software patents as a pro/asset for
a startup?

~~~
2_listerine_pls
Curious: Would you spend millions of dollars in research if your know it will
be copied and you won't be able to make a dime back?

~~~
aledalgrande
What startup spends millions of dollars in research? And if the patentable is
so easy to copy, it should not be patentable.

~~~
wiggles_md
Startups in medtech, biotech, or advanced materials, among others.

~~~
aledalgrande
We are talking about software patents here.

~~~
2_listerine_pls
Do researchers work for free?

------
GoblinSlayer
This:
[http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_...](http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_Purpose_Computer)

Software patents are a hack, they are really against the patent law. The
patent law requires an invention of new hardware, which software obviously
doesn't.

------
whatfreewords
Patent documents can be very useful, particularly in areas where the patent is
unenforceable.

My team found the what3words patent very useful in reverse engineering the
what3words geocoding system, and have open-sourced our results:
[https://whatfreewords.org/](https://whatfreewords.org/)

~~~
fncypants
I’m curious as to why you think the patent is unenforceable?

------
whatshisface
If I invented a new process for producing an expensive drug, it could probably
be implemented as a program for a robot arm. Would that method be impossible
for me to patent if software patents were banned?

~~~
dboreham
You should try that on the Supreme Court. Oh, wait...

------
techsin101
It should be outlawed because burden to find out if someone has copyrighted
this solution is too much

------
kingofpee
Seems like nothing changed since 2007 with the approach towards software
patents

------
Animats
We've paid a high price for letting the anti-patent faction kill the value of
patents.

\- VCs used to be about finding someone with a new technology and a patent,
then funding them to commercialize it. Now they're about buying market share,
losing money on every sale and making it up in volume. When VCs funded real
technology, from about 1970 to 2000, they made money as a class. Now they lose
money as a class.

\- Everything is a trade secret now. When patents were strong, you could
disclose how things worked. With weak patents, NDAs are a bigger deal than
ever. Right to repair suffers. Companies use unmarked components to inhibit
reverse engineering.

\- Trade secret law has criminal provisions, which patent law does not. You
can go to jail for supposedly stealing your employer's technology, even if you
just went to work for a competitor. Like Sergey_Aleynikov, and possibly
Anthony Levandowski.

\- Most of the fuss was about business method patents, but those were
prohibited years ago. That's a dead issue.

\- Patents are for 20 years, then it's public domain. Trade secrets are
forever.

The "America Invents Act" made it hard to maintain a patent. Now you can face
repeated challenges in post-grant proceedings.

China now has tougher patent laws than the US does. In China, you can
routinely get injunctions to shut down an infringer.

[1]
[https://en.wikipedia.org/wiki/Sergey_Aleynikov](https://en.wikipedia.org/wiki/Sergey_Aleynikov)

