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Told to remove blog posts describing patented algorithm (sites.google.com)
429 points by willvarfar on July 8, 2010 | hide | past | favorite | 147 comments

IAAPL (I am a patent lawyer), but I am at the very beginning of my career. Anyway, non-lawyers often are too credulous when they get nastygrams from the other side. Don't believe everything they say to you! It's amazing what non-lawyers will believe and do just because they get a mean-sounding email.

That being said, one of the fundamentally unfair things about the legal system is how expensive trials are. Even if the other side here has no case, they might be able to haul you into court and run up expenses for you. Maybe you can become a cause celebre of the anti-software patent blogosphere?

Welcome to HN. I hope you'll stick around and share what interesting tidbits you are able from cases you take on. Your fresh perspective will be highly welcome.

It is a shame that the patent system is essentially inaccessible to the "little guy" without becoming a celebrity charity case or piquing the interest of someone like the EFF. Here's hoping that you can do much in your coming career to remedy this.

Do you find it unusual the letter was sent by the CTO and not the legal representative of the company?

No, that does not strike me as unusual. In a small company, people are forced to wear many hats. Matters like this can usually be "resolved" through a few emails or a phone call. If the CTO were to call his outside counsel and direct her to write the nastygram, outside counsel would charge $300+/hr. to do so.

If they go to court and he does win the case wouldn't the cost of his lawyers be paid by the loosing side, so, he in that case would not lose anything and perhaps might even be awarded nominal damages if the other side pursued the case friviously.

This depends on many factors. 1) What country the lawsuit takes place in. Unfortch I only know US law. Here in the US, the factfinder (a lawyer word for either the judge or the jury) can order legal costs to the winning party under certain circumstances, but those are rare. I have heard anecdotally that in Britain legal fees are always paid by the losing side.

Hmmm, yes, how do the courts in the Netherlands do this? That wouldn't be true in the US but I gather very few if any other countries follow our model (http://en.wikipedia.org/wiki/American_rule).

Oh dear. I can see the open-source and pirate communities coming down on these guys like a ton of bricks. I wouldn't be surprised to see a CDDB-style distributed database and server and accompanying mobile apps up by the end of next week. Shazam's CTO may well have been better off turning a blind eye.

It's got all the elements hackers love: software patents, an underdog, free speech and an interesting technical problem.

I doubt anything will happen. Stories with similar elements don't usually end with an underdog victory [1]. If the software was already released, people could create "I'm mirroring the Shazam code, come and get me Shazam!" blog posts. The news cycle would have been well-fed, and might have generated enough hype to cause the Shazam CTO to learn to leave the issue untouched.

However, now someone must develop the code. It'll take time. When it is done there will only be passing interest in the whole issue. This is interesting enough that it'll get some action on blogs over the next week, but I don't see this becoming a long-term win for the original author. Just Shazam and the blogs.

[1] One example is "How I Got Sued by Facebook". http://petewarden.typepad.com/searchbrowser/2010/04/how-i-go... . It combines elements hackers love: the rights to your information, an underdog, free speech, and an interesting technical problem (indexing all of Facebook). But no public databases of Facebook user data sprung up as a result.

The reason for that is that people who have capabilities of doing that know that its not a good thing. The data can be used for re identification attacks against user privacy.

Alistair Cockburn (agile authority and creator of Crystal methodologies) comented about this on twitter ( http://twitter.com/TotherAlistair/status/18053308892 ): Simply putting Shazam code on a website wouldn't be patent infringement (AFAIK) because the patent itself does that and is public reading.

Hasn't MusicBrainz.org being doing this in the Open Source for a long time? At least longer than I personally remember knowing about Shazam at all. All of their code is some variant of GPL.

AFAIK, MusicBrainz just relies on metadata associated with a music file and its length. It doesn't actually derive an audio fingerprint from the music, like Shazam does.

Great example of the problem with software patents. Landmark has a method for music-matching. They would love to be the only one having access to that technology. The confusion starts where the patent system is meant to only protect how their particular implementation matches music and not the concept of music matching at all. They on the other hand argue, that the method described by the author is similar to what they have patented - after all, it uses the same fundamental CS concepts such as hash-table lookups etc...

As other mentioned, the idea with patents was to offer people a limited time monopoly on their innovations in exchange for publishing them so others could use/enhance these ideas instead of reinventing the wheel over and over. I have not seen one instance where this works out for software...

This is quite amusing to me personally. I am named as the inventor of a patent which makes claims that appear practically identical to the Landmark one (mine is owned by Macrovision, for whom I used to work). I wonder how many times the damn thing has been patented!

The problem is with the (utterly broken IMO) US legal system (that unfortunately tends to "colonize" more and more foreign legal systems). Because they have a patent, they can efficiently scare away many hobbyists or commercial developers who could compete with them with litigation costs.

>Landmark has a method for music-matching.

No they have a patent the idea of music-matching, not the implementation.

I could have a patent on the idea of a car that defies gravity - and you pay up when you actually invent a flying car.

This is not how it works. In the patent application you have to describe how your invention works.

In software patents, the implementation is described in such general terms that a lot of the time, any implementation can be said to use the method described in the patent. This is my biggest problem with software patents: once you abstract your solution enough, it isn't of much use to anybody, hence the value of the patent to the general public is null while it still allows you to block out competitors that want to find a solution to the same/similar problem although your patent is of no help to them actually solving the problem.

It is this skewed relationship that drives me crazy. Licensing a software patent only allows you to come up with your own solution a lot of the time, it does not save you the development cost.

If you license a patent for some industrial process it saves you huge amounts of research cost so licensing the patent is actually attractive.

Software should only be patentable if the patent provides actual value in solving the problem it claims to solve. Since useable software implementation are so specific, this may rule out patenting software at all.

Microsoft is currently suing Apple over the page turn on the iPad's ebook reader. They have a patent on the idea of using a page turning gesture to go to the next page in a book on a computer, together with the idea of showing a page is turning.

No code, no description of how to render it - just the idea of taking an everyday action (turning over a page) and using it to do the same thing on a computer


Not in the US, although implementation patents are easier to defend you can write very broad patents.

You can have a business method patent, eg look at the prices charged by various retailers and buy the lowest one, or even a patent on the plot of a novel. Both of these have been patented in the US.

Your 'invention' no longer has to be workable for it to be patented nor do you have to demonstrate a working implementation.

That's the issue with a lot of software patents on things like H264 - the patent can simply be on the concept of compressing video, you don't have to invent a particular encoding scheme.

But the law was not intended to work that way. This is why bilski has gone so far. They were trying to do exactly what you describe and they probably won't get the patent in the end. The supreme court will probably find some way to not revolutionize patents by making the decision so specific that only this case will be affected.

The supreme court decided to let people fight it out in court.

What this means is that patents only work for cartels of large companies forming a patent pool to keep a technology (eg. H264) to themselves and patent trolls who have no other business so can't be violating any other patents.

For anyone else - even if you have a patent on a real invention, and can afford to defend it in court, you are likely to be violating dozens of the large company's patents (how could you know) and so are going to lose.

they have a patent the idea of music-matching, not the implementation.

This is indeed the exact opposite of how the patent system is supposed to work. But it is none-the-less a description of how the patent system is more and more winding up working.

This is the outcome that patent trolls hope for. And this has been going on even before software patents. Look up the story about Feynman and the nuclear airplane.

I loved this story when I read it in "Surely you are Joking..." It is exactly how it still works at large Tech-Corps. Number of Patents filed is a metric the PHBs love to use in order to determine the innovativeness of departments and there is a nice bonus for submitting your ideas to the patent-process. Middle management is running around asking people whether they could think of anything they could submit because that will make the department look good - and there you go... loads of BS-patents and I bet you that Dollar that this is exactly how he Microsoft page-turn-gesture-thing became a patent.

No you couldn't.

Indeed, with enough magical legal verbiage and enough slightly unrelated drawing, you could. It probably would not be a valid patent, or maybe only valid on some not too interesting point, but validity does not really matters for patent holder playing cold war with their portfolio...

This is nonsense. Publishing the details of a process cannot violate a patent. The patent system was created specifically to enable the public to see and discuss the latest state of the art. Are these clowns going to try sending take-down notices to the patent office's web-site next??

(Besides, algorithms cannot be patented in the EU, so it is impossible that this code violates any patent.)

I think they were going for "encouraging infringement of a patent". Which publishing certainly does do; though if that was the sole ingredient, the patent office would also be guilty (as you say).

Right. It's hard to see how publishing source code in and of itself constitutes a make or use action, so they could go for "inducing infringement". As I understand it, you would need to have an infringer for that to be true.

Algorithms can be(and is being)patented in the EU. It is the software you cannot patent.

You can patent software. I used to examine and grant software patents on behalf of the UKPO (now UKIPO) Comptroller (sic).

The UK practice had substantially changed since I left (after Macrossan, http://en.wikipedia.org/wiki/Aerotel_v_Telco_and_Macrossan%2...), the UK Patents Act has harmonising terms such that various sections are interpreted to match EPC articles. In the EU software patents were ruled out "as such" and traditionally the loophole was that as long as a "technical effect" (beyond that expected from mere computerisation) was demonstrated in the application of a patent then the software patent was allowed.

Generally the EPC and UKIPO treatments have differed as software patents were actually ruled out "per se" in UK Patents Act 1977 S1(1)(d) referencing 1(2)(c) and UK has been stricter in interpreting this (see Macrossan).

UK law also states that [pure] business methods and mathematical algorithms are unpatentable (again Section 1; see examiners manual - http://www.ipo.gov.uk/practice-sec-001.pdf) amongst other things.

However historical quirks meant that compression algos were allowed in certain areas (imaging) that wouldn't be allowed unless they were couched in the right way (that's my interpretation, I couldn't understand why they were granted).

The Macrossan tests are spelt out clearly in the above Patent Examiner's manual link as is the UK practice (but this can be amended by court decisions).

http://en.wikipedia.org/wiki/Software_patents_under_the_Euro... and the corresponding UK page appear to be thorough treatments for those that wish to read more.

Wait a minute: what is the difference between an algorithm and a piece of software? I don't see any.

Generally speaking, an "algorithm" can be implemented in many different ways. A "piece of software" is a specific implementation. In patent terminology, a specific implementation is an embodiment of an invention.

Implementations can vary in trivial ways (eg. different variable names), substantial ways (eg. different languages), in representation choices (eg. a graph as a list of arcs; as a matrix of connections; as pointers/references from data structure to data structure; using "pointers" that are indices into an array etc); in execution choices (recursive; iterative; immutable; mutable); in a million details that are non-significant for the algorithm. Ask two people to implement Dijkstra's algorithm; they're unlikely to produce identical code. (Although, when marking at uni, assignments were often strikingly similar - not always due to cheating, since one of them was almost identical to code I'd written, and no one had seen it. There are often only a few obvious ways to approach a problem and convention dictates the other decisions. But I digress.)

At last. This is starting to make some sense. Thank you.

Now, there still a problem. Hcho said that while programs could not be patented, algorithms could. So, imagine you patent some algorithm, and later I write and commercially use a program that implements that algorithm.

How the hell could my particular use of your algorithm not infringe your patent? Yet it is my understanding that it doesn't, on the grounds that software is somewhat immune from patent infringement.

Either I missed something, or something is amiss.

Your program would infringe my patent.

I think Hcho meant that when you draft the patent, you draft it in terms of an algorithm - though I also think he was speaking tongue in cheek. You could draft a patent that was specifically of one particular implementation, but it wouldn't give you much protection. Sometimes, people will describe the algorithm, and also supply a particular implementation (to prove that it really works). A long time ago, it was actually a requirement to supply a working model with each patent, and there's a museum of them somewhere.

Aside: Actually, pure algorithms aren't patentable, because they are too abstract. For a software patent to be valid, it has to be inventive (non-obvious to one skilled in its field) with respect to the state-of-the-art (at that time it was invented). Bilski, the recent (US) patent case, held that you have to assess this inventiveness of the algorithm and its application to a problem as a whole. It's not enough to apply an algorithm in an obvious way (no amount of "post-solution activity" helps, if it's not inventive). I think this distinction of algorithm vs application is similar to product vs market. An algorithm is a solution, but it's not patentable unless it is a solution to a problem - and that taken together, is not obvious.

A famous patent law case (whose name escapes me) involved a well-known chemical that was patented as a fertilizer. It wasn't previously realized that it could be used as a fertilizer - this was a non-obvious application of a known thing.

OK, I'm sure that was more than you wanted.

There's a massive difference. Here, let me show you:


    Algorithm Maximum
      Input: Two numbers M and N.
      Output: The largest number of M and N.
      if M > N, then return M
      else return N

    // Returns the largest of m and n.
    int Maximum(int m, int n) {
      if (m > n) return n;
      else return n;
There. Clear?

I'm writing a compiler right now that can compile your algorithm into x86 instructions.

Does your algorithm automatically become software at the time of completion of my compiler?

Or does it become software only when its compiled down to machine code?

:( I was being silly and ironic. I was actually trying to show that there is no difference at all.

Ah the bug in the software makes the difference. Clever, I didn't see that first.

Oops. But yes, that is the only difference.

The only difference I see is that your Algorithm is written in a programming language that doesn't have an implementation. Yet. If I write one, that difference will go. Therefore this is not an intrinsic difference. It does not count.

Do you have something more substantial?

Meta: funny how this comment is doing karma oscillation (so far: + - - + -). But I would've like people tell me why 3 of them thought I have "crossed the line".

>There's a massive difference.

I'm pretty sure Deestan is being facetious here.

Thank you!

Maybe I should add a sarcasm tag or something in the future.

Sorry I didn't see it.

Anyway, I think we have a "sarcasm bias". Meaning, when I mean a sarcasm, it's obvious and anyone who doesn't see it is an idiot; and when you mean a sarcasm, you'd better put the sarcasm tag, or we can't perceive your tone, you idiot.

(Just to be sure: The tone here is sarcastic, but I think the bias I speak of is real.)

Alas, the sarcasm which is tagged as sarcasm is no longer sarcasm.

I must request that you do not ship, deploy or post the code presented in your post ...

Patent Trolls LLC

You should work at the european parliament :)

BTW, you should get carefull since the above piece of software is probably copyrighted in the US, with other patents pending for the rest of the know universe. Oh wait, can you hear the patent police knocking at your door ? Too late mate.

Update: I was being sarcastic.

Wow, someone can easily write a compiler/interpreter for your Algorithm

It is a very lame example, IMO.

Algorithm: I found a quicker way of sorting integers.Patentable. Software: I wrote a program that sorts integers. Unpatentable.

I think the problem is a lot of people are trying to patent "sorting integers", period, and its very difficult for a layman to tell the difference between these three.

(I assume that your "way" involve the use of a computer, and that your "program" is "quicker".)

Now, I'd like you to explain to me how your way of sorting integers is not a program. Or how your program is not a way of sorting integer.

No matter how I squeeze my brain, I still fail to see a difference between an algorithm and a program. To me, that's only different labels for the same thing.

The idea of using a computer program to sort integers is not patentable. A way to sort integers quicker is patentable.

For a real lif example: http://en.wikipedia.org/wiki/T_258/03

Let me repeat: by "A way to sort integers quicker", you mean an algorithm, right? Something that we naturally implement on general purpose computers, right? In other words, you mean a program in a programming language for which no implementation exist yet, right? If I'm reading you wrong, please tell me where and how.

I don't see any actual difference between a program and an algorithm. If you do, please define both, and show me that those definitions aren't equivalent.

Now, if there isn't any actual difference, I wonder how regulators managed to forge a legal one. That would be silly. Anyway, if they did make a legal difference, I'd love to have specific references.

Programs may or may not be implemenations of algorithms. Not every program is an algorithm. I suspect in this day and age of frameworks, libraries and all, a big majority of code is void of any algorithmic work.

So, this is not an algorithm:

   1. Parse HTTP Headers into map of header -> value
   2. Check to see if "Cookie" exists in map
   3. If it does, and it's value is X load record X
      from database table N
   4. Otherwise, insert a new record in table N and
      create a "Set-Cookie" header in the response
Is this a sexy algorithm? Not at all, but is it still an algorithm? Yes. An algorithm is just a set of things that make up a process.

It is an algorithm, you could have patented it if it wasn't prior art. The more trivial your algorithm, the more the chances it's prior art.

Because you are not a lawyer. What makes sense to an engineer has nothing to do with the law.

[Citation needed]


What patentese means by inventive technical step is changes to or creation of algorithms.

"schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" are excluded from patentability by the European Patent Convention Article 52, paragraph 2.

Let me replace the quatation marks for you:

"schemes, rules and methods for performing mental acts, playing games or doing business," and programs for computers;

This how the patent lawyers interpret this clause. Companies I worked for pays £xxxx to their employees for patents. I've sat in some of the commitees which decides a patent is worth pursuing. My experience is the inventive step almost always involves some tweaking in existing algorithms.

I think that the argument used is that an algorithm can be implemented in hardware, at which point it is no longer a "program for a computer" and thus avoids that clause.

This doesn't work before the UKPO (aka UKIPO) as any software application can be implemented in hardware. It might meet the letter of the law as drafted but avoids the intention.

I'm not a lawyer, but it seems to me that he is looking at this backwards.

If his goal is not to actually implement the algorithm, but just to discuss or understand it, he can use the lawyers to his advantage. He's already received the two US patent numbers, which contain published (and freely publishable) text describing the algorithm in great detail. And, since the lawyers are interested in the international implications, it should be simple for them to provide a list of (or better yet, the full text of) all international patents granted or applied for.

My point is not that software patents (or patents in general) are good or bad or harmful or useful. My point is that, for better or worse, a patent represents an exchange-- the inventor is granted a limited-time monopoly on the implementation of an innovation in exchange for publication of the details.

"Landmark also requests that in the future you do not ship, deploy or post any portions or versions of this code in its current state or in any modified state."

Here, the lawyer is demanding that he not discuss the method whose "publicness" is the public good supposedly given in exchange for the patent.

didn't the Dutch lawyer say he could get fined? If it's your nuts on the block, would you have the guts to stand up to them?

I'm not sure but the lawyer doesn't explicitly say that it will be a 'fine'. The translation is a bit off but actually he says that the lawsuit will deal around a substantial amount of money.

No, he just gave the usual advice: if you don't comply and they decide to litigate, it could become an expensive affair, just because you are forced to defend yourself.

He should find a different lawyer.

What do you think a different lawyer would say/do? Mr Engelfriet is perhaps the most respected Dutch lawyer on intellectual property and other digital rights, it is not just somebody.


cant we just copy it and post it on a shady website such as 4chan or something. And then use site like Metaoptimizee.com/qa/ which is a machine learning Q&A website to publicize it!

This illustrates one of the major problems with patent law: uncertainty. Nobody, including the pros, can tell the poster whether the Shazam claim is legitimate or not. Therefore, under the threat of untold financial penalties, real or not, Shazam can simply bully whoever they want.

Although I know nothing about European patent law and almost nothing about US law, here is the relevant US code:

"Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent," (emphasis added). [1].

It seems to me the issue would be whether writing the code for patented software constitutes "making" it. Who knows. The patent system is such a joke.

[1] http://www.law.cornell.edu/uscode/usc_sec_35_00000271----000...

>it seems to me the issue would be whether writing the code for patented software constitutes "making" it.

That's the problem with software patents. The patent must be published - that the whole point. But in software writing down the algorithm is also making an implementation. It's like the pornography laws that defined looking at an image on a computer screen = producing an image and therefore equivalent to being present when the act took place.

If you have US patent numbers, you can get the related European patents either from either http://ep.espacenet.com or http://www.patentlens.net. For example, http://www.patentlens.net/patentlens/patents.html?patnums=US... shows related patents for one of the two US patents mentioned.

Patents cannot be used to prevent someone publishing research, source code, explaining how things work, etc. Infringement happens when the patented matter becomes part of commercial product, is being used commercially or sold. Not by publishing either textual description or source code. An example of this is x264 codec which is perfectly legal (to distribute and work on) even in countries that happily allow patenting everything under the sun. The infringement happens when it becomes used as part of the product or service.

Patent system's primary 'deal' with the inventor is "time-limited monopoly in return for a disclosure of how you did it".

Leaving aside the question on patentability of software and algorithms, I am sure talking to FFII, EFF and similar organizations might help gathering traction for a proper pushback.

Publishing doesn't violate a patent, but it doesn't require commercial activity - building your own device, or writing your own software, for your own use constitutes a violation.

The LAME MP3 encoder uses technology covered by patents. The LAME developers distribute the code in source code form only. The developers say that it is legal to distribute the code because the source code is a description of the patent and not a working implementation of the patent. See last question at http://lame.sourceforge.net/tech-FAQ.txt for more info.

Assholes. I am living in Ukraine, and I am willing to host any patent-infringing code or documents on my Ukrainian servers.

One take-away from this is this, though:

When it comes to patents - the fact that your software is non-commercial, or that you invented it independently without knowing about the patents does not matter.

Unless you can prove you created the infringing work before the original patent applicants did, in which case you can invalidate and/or take over the patent, patent rights are fairly absolute, and have nothing to do with derivative works or anything like that (which is why software patents suck so much....)

Patents are granted via application, and apply unilaterally, regardless of how the infringing works were created. The only defences in general against patent infringement are a)your product does not actually infringe on the patent because it's different enough and b)attacking the validity of the patent itself.

Contrast with Copyright, which is granted automatically, and independent creation of similar works (even identical) is permissible, as long as they were truly independent and not copying each other.

(This is why clean-room reverse-engineering techniques, where one group revere engineers the software and documents it's function, and a completely separate group who's never seen the original work writes new code to those specifications) work for software when it comes to copyright, but not against patents.

Even if you could prove such a thing it's still very expensive to do so.

I was wondering how to contribute with my bit of pressure. I'm a regular Shazam user, and was thinking of sending them an email telling that I don't want to make business with companies that deal with bullies like Landmark Digital Services, that I'm uninstalling their app (even though I paid for it) and will be campaigning against it among my friends.

But then I thought Shazam might just be another victim of this messed up patent system. On the other hand, they're making profit out of it and favouring and legitimating Landmark Digital Services on the way.

What do you think?

According to this comment http://news.ycombinator.com/item?id=1497450 Shazam sold the patents to Landmark, which the parent of the linked comment pointed out is owned by BMI. Shazam deserves any flack it gets and more if those are true.

Okay, so I am not a lawyer, but I don't get it. One of the most know audio matching systems is from Kalker and Haitsma, published 2002. http://citeseerx.ist.psu.edu/viewdoc/download?doi=

I'm no lawyer but my advice would be to object to the patents in your jurisdiction (and the US, if possible) by writing to the appropriate local patent offices. State that their work isn't novel as it's remarkably similar to your own. If your work is based on "public domain" knowledge (for example techniques that have been previously published in a book, or on the web), it is important that you refer to those.

I'd also speak to a different IP lawyer, one who is familiar with software patents. You shouldn't have to pay for an initial consultation.

EDIT: You could also speak to your local EFF. They'd have better advice.

Reminds me of when I accidentally violated a software patent in less then an hour. http://forum.doom9.org/showthread.php?t=139913

You didn't do it in less than an hour, you did it with your whole careers worth of knowledge acquisition + 1 hour of implementation.

If as you say your steps were a priori obvious and trivially implemented and were at the time that the relevant patent was applied for (or relevant invention made in the US) then the patent is very weak and a citation against it should be easy to find.

What appears to be the case is that professionals working in the field for a substantial time were not able to solve the problem easily (eg 2Bdecided's comments).

In short you should give yourself more credit.

TIL: AVIsynth is a script based video editor.

Its not Shazam who are making the fuss though, its Landmark (http://www.landmarkdigital.com/about) who are owned by BMI (the record company - RIAA?)

Shazam sold them the patents.

I'm not a lawyer and I may be wrong but can't we use the patent vagueness against itself in a sort of "patent aikido" defense.

It's seems like it would be trivially easy to release this source code given the way the patent is described.

This source code does pattern matching for audio, sound and music. I looked at the patents in question. They only discuss this method for use with "audio files", "audio samples", "sounds", and "music".

However the patent doesn't cover other types of waveforms with changing frequency and amplitude.

With that in mind, couldn't you just change the language used to describe what you code does so that in now describes other types of waveforms that are NOT sound, music and audio?

It seems to me that patent lawyers can either patent the implementation or they can patent the application of their implementation. Simply changing the application of the implementation you coded in a weekend would mean that the patents cited no longer apply to the code he wants to publish.

Also, if these lawyers have never seen the code in question. How are they going to know you released it if it somehow gets released anonymously?

This is so depressing.

I have to say, the replies from engineers who have spent some time figuring out how the patent system works have been enlightening and interesting to read.

But none of this matters unless a well funded group (maybe the EFF, maybe some businesses who want to challenge this patent) decides to pick up the cause and fight. There is no way a programmer who coded something in a weekend and put it on his blog is going to be able to go up against a well funded patent holder.

The merits are irrelevant, seriously irrelevant.

This is what depresses me so much about the US legal system. While the law around software patents is absurd, the problem isn't really that software patents exist per se (1), it's that stupid patents are granted and that it is brutally expensive in terms of time and money to fight them.

(1) I do consider software patents to be a failed experiment. Sometimes the implementation is so bad that we can say "tried it, didn't work" even if in theory it could have been done better.

You know, what's kind of interesting about this whole thing is that it sounds like a case could be made that Shazam themselves are infringing copyrights on the songs in their database. After all, in order to make the database of hashes, they had to make a temporary, unauthorised copy of each song recording.

Similarly, the client-side software makes an unauthorised copy of the music as it records it from the environment to do the test. This seems like it could be contributory infringement on the part of the software writers.

Does anyone know if the record companies ever tried to go after them on these grounds?

I still wish some congresscritter would pass a law simply stating "if you can copyright the implementation, then you can't patent it"

The problem here is that it's too easy to make and use a software invention once you have a sufficiently detailed description of it (source code). An analogous situation would be the invention of a new homemade bread. A detailed recipe of the bread in a cookbook would make it very easy for anyone to make use of the invention and very hard for the inventor to stop infringement. In such a case, the law must take sides: either it protects the public's right to share information over the right of the inventor to benefit from his invention, or vice versa.

It seems to me that the law sides with the public by forcing the inventor to choose between patent and copyright. If the inventor chooses patent, his invention has protection, but the public is free to share information about it. Indeed, to obtain a patent, the inventor must fully disclose the best way he knows to make and use the invention. On the other, hand, if the inventor chooses copyright, his particular expression is protected, the public is not free to share it (republish it), but the underlying ideas behind his invention are not protected.

So for instance, a musician could patent his unique method of strumming a guitar and he could copyright his music recordings and explanations of his strumming method, but has no way of preventing public discussion generally of his strumming method. His invention does not mean that there can be no more learning and innovation in the field of guitar strumming.

Similarly, a software maker can copyright his expression (source and object code) of his work, and patent the use of his work, but he cannot (should not) prevent public discussion of his work generally.

To hold otherwise would mean that intellectual property (IP) holders could stop all learning and progress in the areas in which they hold their IP. But the purpose of IP is exactly opposite. The US Constitution says that Congress shall have power "To promote the Progress of Science and useful Arts by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (US Const., Art. 1, Sec. 8, Cl. 8)

IANAL, but I would hazard that you are wrong on nearly all points. There are very specific rules on the form of a patent application. It used to be/may still be that you had to include stylized drawings of a machine that accomplished the function. Ten thousand pages of code wouldn't cut it. Generally the patent is abstracted from the actual machine. A couple of the problems with software patents is that the abstraction is too great and the claims are too broad. It's the claims that trip up future developers.

The musician example is pretty much bogus, because method patents have been pretty much disallowed, though there is a movement to get them accepted. Method/process patents would bring all innovation to its knees.

Also a misconception about copyright. You can have a copyright without publishing the code, although if you publish it without a copyright, it may be in the public domain. Code copyright is used as a defense against duplication, not innovation.

> Similarly.. Yes indeed.

Irritating. The patent tradeoff is disclosure in exchange for monopoly, and Landmark's pretending the disclosure part doesn't have to exist.

You could always link to the patents, since they describe the process in so much more detail.

Andrew Tridgell's talk on patent defense could be useful for him to read: http://news.swpat.org/2010/03/transcript-tridgell-patents/

lots of companies send nastygrams like this even if they have no intention of following through with legal action. it costs them nothing (except reputation on HN) and there's a good chance the recipient will get scared and give in without a fight.

there are important issues on the line here and it makes me sad that so many people feel like they need to walk away because of the possible legal expenses.

i know it's easy for me to say this as i've never been sued myself, but for once, just once, i'd like to see someone fight back against something that is so clearly wrong.

Letters say nothing about description, the CEO only wants the code out.

BTW I thought there are no software patent laws in EU or EU member states. Just USA and Japan were on the road to insanity some time ago.

Read the last letter. It says clearly that his description of the algorithm in the blogpost is in violation of the patent laws.

"While we trust your good intentions, yes, we would like you to refrain from releasing the code at all and to remove the blogpost explaining the algorithm."

It doesn't say directly the description is a problem. IMHO it's the whole blogpost, because it contains code.

dude that guy is surely bullshitting Description of an invention is actually the purpose of the patent! Patent is there to allow other to get knowledge about your invention while protecting your "Commercial" interests!

I'm pretty sure you could release the code copyright and the code to the FSF, and let it go. I think it's important to struggle against software patents, now more than ever!

"why are they targetting me and not the already published implementation of Dan?"

Probably because Dan didn't title his article Creating Shazam in Java

Patent +applications+ cannot be infringed.

WTF Just write at end your implementation:

License: Research Purpose Only

Any patented invention can be used for research pupose!

To quote from wikipedia: A patent being an exclusionary right does not, however, necessarily give the owner of the patent the right to exploit the patent.[13] For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.[13] If an inventor takes an existing, patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement.

Add few new features

> Add few new features

Or devise some novel features that would allow this marvelous invention to interoperate with existing software!

Then patent the combination and fuck them with it. >:D

>Any patented invention can be used for research pupose!

This is a grey area under the EPC - research is allowed but commercial use is not.

Consider: If the invention is a measuring device used in a particular area of research then that doesn't mean you can rip off the invention and claim it is for research purposes.

Generally I'd say if you built the invention just so you can use it then that's commercial.

welcome to the inane world of software patents

Remember Paul Graham's words: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general." http://paulgraham.com/softwarepatents.html

I made up my mind, and currently, I think the whole patent system should be abolished.

Some may think we should be safe if software patents are abolished, but we're not. Make a bit of Arduino based hardware that happen to infringe a patent, and you're screwed. In short, patents are hampering the rise of Free Hardware, just like it does Free Software.

It is past time we examine the effects of patents rigorously, or listen to people who have.

"Remember Paul Graham's words:"? Seriously? This messiah thing has got to stop.

I used the argument of authority to get some attention. Ironically, when I first read his essay I was very sceptical. I hope my quote didn't directly trigger the up-votes, and that people actually read my last two paragraphs.

How would you encourage the development of new pharmaceuticals (the process of which costs vast, vast sums of money and can take decades) if, as soon as the new drug is done, anyone can come and just copy the formula?

I'm not pro-patents on everything, but pharmaceuticals is a case where the patent bargain seems to produce benefits in terms of drugs that otherwise might not be developed.

Your argument assumes that you need some kind of artificial encouragement to make the development of pharmaceuticals thrive.

Against Intellectual Monopoly[1], shows rather strong empirical evidence to the contrary: drug development thrived before patents arrived, and didn't accelerate after. They may even have slowed down.

Your argument is appealing, but most probably wrong.

[1]: http://levine.sscnet.ucla.edu/general/intellectual/againstfi...

I'm willing to accept I'm wrong, but could you answer my point so I know exactly how it is that I am? In particular, exactly how is it that the large upfront R&D costs I mentioned would not be a problem in a patent-free world?

Also, I wasn't assuming any kind of 'artificial encouragement'. I was talking about firms spending hundreds of millions of dollars researching drugs, and wanting to earn that back (and, obviously, more) through patent protection. There's nothing artificial about the kind of encouragement that comes from wanting to recoup hundreds of millions of dollars.

I didn't address that point because that point is irrelevant. I am not interested in the well being of a particular pharmaceutical firm. I am interested in the well being of the whole field. And I suspect, so are you.

It looks like you think that for pharmaceutical to thrive, it needs corporation to be "encouraged" to invest lots of money. You also seem to think that patents are a major provider of that encouragement. If so, the introduction of the patent system should have accelerated innovation.

Empirical evidence shows that it didn't.

I see only 2 explanations: either patents are not an effective encouragement (compared to already existing ones), or their disadvantages nullifies the additional encouragement.

Please just explain how it is that you think we would get new, expensive-to-develop drugs, if there were no guarantee of a limited monopoly for the inventor.

Forget the abstract arguments about corporations being "encouraged" or whatever you think I think. Just tell me how it would work.

If it helps, imagine that you run a pharmaceutical firm, and you have the choice to spend hundreds of millions of dollars researching a drug which, once perfected by your researchers, is not owned in any sense (even temporarily) by you, but rather immediately becomes a generic commodity worth fractions of a cent per unit, and which cannot possibly earn you back the money you spent developing it. In that situation, would you start the research? And if not, where will the new drugs come from?

> Just tell me how it would work.

Ha ha, that's the beauty of it: I don't know. I just know it works. I know it from a source[1] which I consider reliable. And that source presented empirical observations which strongly support my view.

You keep talking about how it would work, doing what's amounts to a thought experiment. That's valuable, but not nearly as good as actual observations in assessing how the world works.

From the dawn of humanity, the Sun has been observed to rise from a direction and set to a roughly opposite direction. Why? How? For a very long time, no one knew. But only a fool would contradict that observation just because what he thinks of the sun doesn't fit what everybody sees.

In short, when your view of the world doesn't fit the observations, update your view of the world.

Now, I see very few ways in which you could still disagree with me: (1) You think I misreported my source. (2) You don't trust my source. (3) You know of very strong evidence which support your view and not mine. So which it is?

[1]: Against Intellectual Monopoly

Alright, if you don't know how it would work, but you do know how it does work, tell me how it does work.

What countries are you talking about, what years, what drugs? How did the companies cover the cost of research? What was in it for them? Why did they do it?

I am perfectly willing to amend my views but so far you have done nothing but say you have evidence. Show me! I don't have time to read your source but I am happy to read what you quote as relevant.

> I am happy to read what you quote as relevant.

Ah, now we're talking. So, chapter 9, page 247 http://levine.sscnet.ucla.edu/papers/imbookfinal09.pdf

""" You may wonder why we are offering all these details about specific countries, patenting of chemical processes, and pharmaceutical products. For a very simple reason: if patents were a necessary requirement for pharmaceutical innovation as claimed by their supporters, the large historical and cross country variations in the patent protection of medical products should have had a dramatic impact on national pharmaceutical industries. In particular, at least between 1850 and 1980, most drugs and medical products should have been invented and produced in the United States and the United Kingdom, and very little if anything in continental Europe. Further, countries such as Italy, Switzerland and, to a lesser extent, Germany, should have been the laggards of the pharmaceutical industry until recently. Instead the opposite was true for longer than a century."""

I fear you would have to read "all these details about specific countries" if you want anything more substantial. That's 7 pages (from 241 to 247).

Interesting, but not very convincing. The argument concerns historical periods when the costs of research were not nearly as high as they are now. As your own source rightly points out:

"the total cost of bringing a new drug to market [is] around $800 million, in year 2000 dollars... [T]his figure suggests a spectacular increase in the cost of innovating. This increase is due, mostly, to the capitalization of the longer and more expensive clinical trials the FDA requires."

It may well be that patents were not always necessary for drug development. It is lazy thinking to conclude from this that they are not necessary now.

> It is lazy thinking to conclude from this that they are not necessary now.

Correct. We may want to test for that, if at all possible. Also, if we manage to reduce the costs of clinical trials, we may make that point moot. But in the end, I fear we will have to set priorities, and make compromises. I just hope that it will be based on rational judgements, instead of political stances alone.

Simple explanation: patents and the FDA represent barriers to entry for new competitors. Costs going up just means more money spent within the industry, and more profit to be taken later. Costs (and profits) going up are a consequence of patents and regulation, not the other way around. Remove patents and regulation and watch costs plummet.

Well, we could remove patents, but removing (or lightening) regulation may be a bit more tricky: you wouldn't want Big Pharma to release something that's more a poison than a medication.

And how has regulation changed this? What extra laws do we need in place to make sure companies don't kill people other than "dont kill people"?

> And how has regulation changed this?

I don't know. Nor am I aware of any study which shows regulation's effects, or lack thereof. I'm just saying that if regulation has benefits, they should be compared to the drawbacks before we forfeit them. If it has no benefit, of course get rid of it.

Anyway, as I said, I don't know a thing about pharmaceutical regulations. If you do, a few pointers would be welcome.

Somebody mentioned having prizes for the drug developer. This would especially help medication where there wouldn't be much profit incentive but would do lots of good (e.g. Malaria).

> If so, the introduction of the patent system should have accelerated innovation.

This assumes that the cost of developing drugs has remained constant, of course.

I don't see much point in encuraging the development of new pharamaceuticals.

Not that I don't like being healthy, but the new pharamaceuticals are just stuff that makes you not die, rather than cure the disease and it is developed only because the patent on the old stuff is on the verge on running out.

A better way would be by removing all the nonessential regulation that makes such medicine so bloody expensive in the first place.

You're absolutely right, obviously.

And I'm sure that if your children developed some terrible illness, you wouldn't want to use any pharmaceuticals to keep them alive longer, because - as you say - the disease might get them in the end anyway.

"Stuff that makes you not die" is, as you point out, obviously worthless to everyone.

You are forgetting that pharmaceutics business earns vast, vast, vast sums of money.

I'm not forgetting that at all. Of course they make enormous profits. But they would make no profits if they did not have a temporary monopoly on the drugs they invent, because others would sell it for cost price (next to nil) and they would never, ever recoup the money they spent developing the drug.

My point isn't that pharma companies don't make money. It's that if you took away patent protection, they wouldn't invest in new drugs, because they would never earn anything on those investments.

Hey, did you read me? New drugs are invented even when there is no patents around! Necessary investments are made even when there is no patent system! Introducing patents does not benefit pharmaceutical innovation. It has been observed empirically, in the real world.

Your point here is wrong. Unless you can tell why the empirical evidence I speak of is inconclusive or non-existent, I suggest you accept it.

You just keep saying "it has been observed empirically".

Name the drugs.

edit: Also, explain (as I keep asking you to) how it is that the companies are to earn back the money spent on the R&D investments, if there are no patents. You say there is plenty of empirical evidence. Tell me how it is done.

Reference for outsiders: my only substantial argument so far is the quote in this comment: http://news.ycombinator.com/item?id=1497246

I agree.

Since you're a bit new:

Devoid-of-content comments typically get downvoted. Your agreement could more easily (and more influentially) have been shown by clicking the "up" arrow next to loup-vaillant's comment. Higher-voted comments bubble up and lower ones fall, they're not sorted chronologically.

It's really only the threat of legal action that matters. Who wants to deal with lawyers, legal expenses, and energy spent defending your position, even if you are right?

It's too bad such anti-innovative behavior is even legal.

If the suing company loses, they forfeit their right to do business in the country they filed in. Sounds reasonable. It would at least stop this penny ante bullshit.

The basic technique they are using, to generate a Fourier transform and distinctive signature from a segment of music, and look it up in a hash, is completely obvious. It should not be patentable. The gory details of their algorithm might be patent worthy (although I don't like patents at all). But Roy did not use their algorithm, he invented something similar. Greedy trolls, hate.

It might be a nice idea to integrate music identification with CDDB I think.

Google has a similar system that they are using to prevent the use of copyright music in youtube clips (and they also have patents for their method). I suppose many other systems exist to do the same things. Roy should publish his code. Death to trolls.

Create a Fake Email address and post it on a Posterous blog. And then we will take care that it is found out for perpetuity! Also we can try to destroy his page rank by making reference to his name!

Any way you are currently on second page of Google Search! Better Post it on a .in Indian Web Address Patent laws in india do not allow software patents + no one gives a shit about C&D!

Please some can someone with good knowledge of proxies and etc post it one 4Chan or Posterous or similar site and then post it as Question on http://metaoptimize.com/qa/

Which will get the word out to practitioners in this field ! I currently cant do that since i am on a *.edu ip

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