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End Software Patents (2007) (endsoftpatents.org)
226 points by praveenscience 34 days ago | hide | past | web | favorite | 198 comments



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.


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.


I'm a stakeholder in the field, I'm in favour of software patents in general with allowance for the need for ongoing reform and improvement.

Unless I'm not a real stakeholder. What's the definition of that?


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.


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


LOC requirements are easy to abuse and LOC != amount of originality


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.


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.


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.


Patents are supposed to be not obvious. Pinch to zoom it's an idea and shouldn't be patentable. The process of how you pinch to zoom is a different story though. The amount of work required shouldn't be an issue.


Even then, I think the "process of pinch to zoom" is mostly about emulating nature and should be considered under the same idea as that you should not be able to patent a biological process. And if you say "well how you emulate is patentable" then I will say, there are only 2 choices:

- there is only one way to implement it: then it is just an embodiment of the idea and shouldn't be patentable

- there are multiple ways to implement it: then there is no point patenting them because somebody will just do it a different way and you have no protection ... except ... copyrights which are already what everyone uses for software.


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.


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.


Right, except for you software example, which in the case of video compression is purely math (which is discoverable, not patentable). It would be illogical to allow that patent.


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.


> 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


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).


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.


It depends on the kind of software. Patents protect capital intensive innovation that’s hard to figure out but easy to copy once you figure it out. That doesn’t describe most software. But it describes a lot of things that are software. I spent an entire summer working on network formation algorithms for cognitive radios. Aside from Matlab simulations I didn’t even write any code. My employer applied for a lot of patents on what was basically software (though commercially it’d be embedded on a baseband processor and you could put it in hardware if you wanted). If you’re a company that paid a room full of PHDs tens of millions of dollars over many years to write code, and could throw the code away and it’d still be worthwhile as long as you had the spec, then that’s the sort of thing where patent protection makes sense. Most software developers have no experience with such work however.

Intellectual property is a thing that exists. Somehow Apple’s Ax processors are several times faster than the best Qualcomm can do. That’s intellectual property. Given that, I’m not sure it makes sense to divide up patentability based on whether it’s software or something else.

(At the same time, I’d probably say that nothing bad would happen if we simply banned advertising. Since my paycheck never depended on ads I have to admit I don’t really get why it’s necessary, beyond the abstract intellectual arguments. People’s world views are limited by their direct experience.)


That sounds like it should not be pantentable.

At the core of the argument, software engineering is applied math. Math is not patentable. Software patents are workarounds around the fact that math is not patentable. Yes, the work is valuable, but it should not be patentable.

Here are USPTO's guidelines https://www.uspto.gov/web/offices/pac/mpep/s2106.html


All engineering is just “applied math.” It’s the “applied part” that makes it patentable. (You cannot patent an algorithm. You can patent a method of getting getting radios to aggregate into networks. Or a method of wayfinding for a self driving car. Or a method of indexing and ranking web pages.)


Why?

The purpose of a patent is to grant a monopoly for an invention that would not be obvious to someone skilled in the art.

These business methods should not enjoy patent protection that prevents someone from independently discovering and implementing same solution. There is a finite number of ways to efficiently implement wayfinding for a self-driving car.


Funny you mention wayfinding algorithms: There had been decades of progress in that regard without a single patent, only the last decade (since big business got in the game), the rules have suddenly changed.


I’m pretty sure the CMU folks have been parenting their stuff The whole time: https://www.cs.cmu.edu/~tjochem/nhaa/ralph.html


Many universities obtain patents on research outcomes as a matter of policy.


Hardware engineering works with matter which is not subjective and so it can't be handled by pure imagination as opposed to math and software.


You can turn any software into an equivalent piece of hardware, which meets the non-subjective matter test you're proposing.

Similarly, I can convert any hardware into a software model of it, which makes it into pure imagination.


You can't convert hardware into software model, the software model is necessarily an imperfect idealization, created deductively even, which thus doesn't necessarily work IRL, because fundamentally it's imagination.


I spent a long time writing advanced code as part of a PhD as well. It relied heavily on existing FOSS code and patent-free work, and would never have been possible if I had had to seek permission for each patentable element used.

There is hardly any field where you can improve the state of the art, without stepping on dozens of patents. Of course you can ignore those patents if you don't care about making any money off your work. But if that's the case, you don't need patents in the first place.


YMMV. Unpopular opinion: I don’t really like open source. I like patents and copyrights because they’re property rights you can use as the basis for markets. Markets are good. It’s hard to build markets with open source. Open source has resulted in a world where you can’t make money just selling software, you have to lock people into ecosystems and services to monetize your work. Symbian used to sell you an OS in return for a cash payment. That was it. Now, you get Android for “free” but only by turning your customers into the product. Same thing with web standards. With video coding standards, you just pay some money and you get the necessary patent licenses. But web standards are “free.” In practice that means just two companies (Apple and Google) get to control the standard by fiat. Is this better?


> Open source has resulted in a world where you can’t make money just selling software, you have to lock people into ecosystems and services to monetize your work.

Microsoft made a lot of money selling Windows and their Office suite precisely by locking people into their ecosystem.

You say you like markets, yet you don't like others offering goods at a lower price (free software), but you do like government-enforced monopolies on ideas (patents, and even copyright). If we're diving things into 'market' and 'not market', shouldn't you categorize them in the exact opposite way as you did?

> Now, you get Android for “free” but only by turning your customers into the product.

You also get linux for free, or you can pay for Windows and still be made into the product. The only way I can see someone arriving at your position is to selectively pay attention only to cases where free software with anti-consumer features crowded out straight-forward proprietary software, and ignore cases where free software turned out good (compilers, linux, firefox, text editors, libre office, lineageOS, VLC, etc. etc. etc.)


Lots of companies use open source wrong. Treat open source like an industry standard[1] and it is very possible to release products built upon open source.

Every product Apple sells incorporates various standards, including open source. The key is to use open source to reduce the barrier to participating in a market and then add value on top of open source to make a profit.

[1]: https://www.nist.gov/standardsgov/what-we-do/federal-policy-...


>It’s hard to build markets with open source.

Only if you can't create something valuable. But if it's not valuable, then it's not your property, it's worthless.

>Now, you get Android for “free” but only by turning your customers into the product.

Paid services still turn the customers into the product, e.g. Windows. Also Android is not open source.

>get to control the standard by fiat

Commercial dealers have a long track record of anticompetitive practices. It's the whole reason why antimonopoly law was written.


fix: Android is cancer because it's a proprietary walled garden. Cancer is enforced through walled garden, and walled garden is enforced through closed source. Old tale holds true: proprietary software harms the customer and Android is a vivid example of it.


Patents don't give you markets either, they give the base patent holder control over the entire ecosystem.


I like both patents and open source because there's a difference between innovation and infrastructure. If I bust my ass in my garage innovating my stealth widget then I'd like to protect that. But I live in the 21st century and I use LLVM, Linux, ... developing said widget. So I like both. I doubt I could get my widget off the ground without open source infrastructure but I'm incented to move the bar with my widget. This is a good thing.


You are allowed to file patents that are novel extensions of an existing patent. You might not be able to use it because of the original patent, but you can absolutely file one.


> You might not be able to use it because of the original patent, but you can absolutely file one.

That is precisely my point.


Your argument was that it's "impossible" to improve the state of the art due to existing patents. I explained that it's possible. Are we agreeing or have I missed something?


My argument was that while you can improve the state of the art, rarely do software patents incentivize you to do so.


Why don't they?


Just because you have spent a whole summer figuring something out doesn't mean you should have long lasting government protected monopoly to use it. The problem with software patents is that it's very likely other people would come up with similar solutions if they spent time on the problem. There is no reason to give the monopoly to the one first around the post. This is especially true for things that took a few months and very little capital to figure out.


Did you mean patent trolls?

At least some multinationals would benefit from software patents going away, since they are often used defensively.


In some countries, ideas aren't patentable, just products are.

Software might have some kind of protection, even how you design your DB is protected, but you can't forbid someone to make a similar software that does the same thing.


I’d argue software should be patentable, but not copyrightable. Patents last up to 15 years, copyrights last life + 70 years.

Software is engineering, not art. It should be protected like technology, not art.


I very strongly disagree. If I spend years to develop software and someone copied the code and sells it then I think it will be almost universally perceived as unfair enrichment by others. If I come up with a clever solution to do voice calls and then another person comes up with the same solution in their app then it's tough luck but there aren't many people who would feel it's unfair. After all we both based our work on existing knowledge and our ingenuity unlike in the previous case where people copying didn't do any work themselves.

There is strong moral argument for copyright, a sentiment most people at least in Western culture agree with: you shouldn't be able to take work of others without doing any yourself.


The problem is that patenting a kind of screw is not the same as patenting an algorithm or field of computer science. Software uses many more kinds algorithms than any physical product uses screws. It's impossible to avoid minefields for any reasonably large project.

Let's not forget that for quite a few years, asymmetric cryptography was patented and you couldn't implement any kind of cryptosystem that used it. God knows what the state of cryptography would be today if we didn't have our equivalent of a "dark age" thanks to fears over patent litigation.


> multinationals

What is that supposed to tell me?


Ask Larry Page if he is fervently opposed to software patents.

https://patents.google.com/patent/US6285999B1/en


Patents are behind a kind of shell game played with the investor class: investors like to think they own "assets". So entrepreneurs have over time decided to play a game where patents are treated as assets. They tell the investors that they own these nice valuable assets called patents. Both sides probably know the whole thing is BS, but they play along.

In this context, _nobody_ is going to stand up and call BS on the game. Certainly not Larry.

Senior engineers in BigTechCo get paid bonuses for patent filings so they're unlikely to speak up for fear of those bonuses.

I feel a bit nervous posting this to be honest, but hey..


>multinationals

Also the nature of patents incentivizes you to claim patents even if you fundamentally disagree with the patent system, if you want to continue doing business. Otherwise a troll or competitor could try to shut you down


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.


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.


Google only uses their patents defensively when sued for patent infringment. A world without patents would result in the same result for them but with less overhead.

In this landscape where it's almost impossible to build products without stepping on patents, the only way to defend a large company against being bled to the bone by patent lawsuits is to have a deep warchest of patents to file countersuits, basically just MAD for software.


The alternative is being defenceless when a patent troll comes around. Hate the game not the players.

I'd be 100% for ending software patents. We already ban patents on mathematics.


Why not ban all patents altogether?


Because that's a silly idea?

Because people will horde their inventions to themselves and reduce the rate of progression of civilisation?


> Because people will horde their inventions to themselves and reduce the rate of progression of civilisation?

I bet someone else who isn't silly like that will rediscover likely within twenty years of the hypothetical hoarder.

Also, you can hoard it under the current regime anyway:

> WD-40's formula is a trade secret, and has not changed over the years, according to historian Iris Engstrand. To avoid disclosing its composition, the product was not patented in 1953, and the window of opportunity for patenting it has long since closed.

https://en.wikipedia.org/wiki/WD-40


Within 20 years, sure. But extrapolate that for any invention which has significant commercial value, and you've got a problem. This why patents exist in the first place.


> Within 20 years, sure. But extrapolate that for any invention which has significant commercial value, and you've got a problem. This why patents exist in the first place.

I didn't think of that. I don't think the situation is quite so cut and dry though.

Imagine how many patents like one click [1][2] we can avoid if there simply was no patent.

I am not convinced that patents have an overwhelmingly positive effect on society at this point in history. We have to consider that communication (both one to one and one to many) is a lot cheaper today than even two hundred years ago.

I think reasonable people should push for an end to all patents.

[1] https://en.wikipedia.org/wiki/1-Click [2] https://patents.google.com/patent/US5960411A/en


I already said I wanted to get rid of software patents, so we're in agreement with one click.


What is your basis for this claim? Was there a survey?


Just the impression I got from the general developer community, and articles such as https://www.infoworld.com/article/2619609/why-software-paten...


The exposure to the patent system for most developers is seeing egregious examples being used by patent trolls. Then there's the confusion between design patents and utility patents. So yes, I would say most folks find them distasteful, for the same reason that most folks overestimate crime rates.


Most developers I know (at least the senior ones) are named inventors on several patents so I doubt your theory that engineers don't understand the space.


Most developers I know are not named inventors on any patents.

It's not so much about understanding the space, it's about the mental availability of examples used to estimate the general state of the world.

People who watch TV news regularly overestimate the crime rate. Why? Because TV media focuses on the dramatic and attention-grabbing -- "if it bleeds, it leads". No effort is made to present a statistically valid sample of reality. Nobody is publishing "little old lady walks home safely for two thousandth time".

Similarly for patents. There are millions. Which ones get press? It's not a perfectly random sample, what we see is the absurd and outrageous examples, ones which deserve criticism and anger. But if you base your estimate of the entire system on examples chosen specifically because they will arouse anger, then you have an inaccurate estimate. Because "patent for neat idea lives quiet life until expiry" or "patent amicably licensed on reasonable terms" or "patent application invalidated by prior art during examination" don't make it to the front page of HN.


>Almost everyone whose work would be protected by software patents, is fervently opposed to them.

Please provide some kind of basis to this claim.


>Please provide some kind of basis to this claim.

Well...I think all the basis is likely to be anecdotal unless someone performs a survey.

One data point: I've been doing this stuff for decades and I have never had reason to _read_ a patent filing. That has to indicate something, no? If they were so "inventive" wouldn't we need to read them to find out about new inventions. The only patents I've read were a) ones where I was the named inventor (even then I didn't understand them) and b) where I was employed as an expert by lawyers fighting trolls in litigation.


This exactly. The point of patents is to encourage people to publish their research, but I've literally never heard of anyone reading through software patents to get ideas. The entire putative reason for their existence is basically mythical.

Furthermore, our company lawyer would probably choke me if he caught me reading patents, as then we'd be subject to much higher damages if we were ever claimed to be infringing something.


>I've been doing this stuff for decades and I have never had reason to _read_ a patent filing

Knowing of a software patent exposes you to willful infringement, and you'd need a lawyer to understand what the bloody hell most software patents are even claiming to patent.


I'd venture to guess you've read several "white papers" or even academic papers describing inventions claimed by patents.


I'll repeat my other comment: Just the general impression I got from the developer community, and articles such as https://www.infoworld.com/article/2619609/why-software-paten...


I like software patents. Made tens of thousands off of them, and then used those same patents at another company when the first company forced a cross lic agreement. First company ultimately lost millions and didn’t realize why. But, their lawyers probably got a bonus.


I don't understand this story at all.


jmpman developed some tech at BigCo A. Their lawyers filed patents for that tech, naming jmpman as the inventor. jmpman got bonuses from BigCo A for those filings (typically O($10k)/patent). jmpman then moved to BigCo B, continuing to work on same tech. Meanwhile BigCo A demanded that BigCo B enter into a patent cross-license agreement, presumably with the goal to gain free-of-charge licenses to use BigCo B's patent portfolio. BigCo B agreed. Result was that while BigCo A thought they had made a sweet deal, in fact they licensed foc the tech jmpman had previously developed to BigCo B which went on to make $$$ exploiting it. If they hadn't pulled the cross license stunt, BigCo A would have made $$$ in royalties form B's use of jmpman's tech.

But, this is why historically patents were not a big deal: all tech companies (this is before software patents were even allowed, so we're talking hardware patents) all entered into cross licensing agreements and everyone used each other's inventions mostly without royalties paid.


Glad someone understands me.... nice summary.


> Except patent lawyers and multinationals. That should tell you everything on whether they're a good idea.

I know you're implying "no, it's a bad idea". But doesn't the involvement of the individuals who do patent law as their sole job qualify them to know more about it then "almost everyone"?


If 'it' is patent law, then yes. If 'it' is software development, then no.

Do we want to encourage the development of patent law, or of software?


Patent law is pretty well-developed at this point. And patent lawyers typically have degrees and relevant experience in the field they focus on. So most software patent lawyers know as much about software as you or I do.


> ... most software patent lawyers know as much about software as you or I do.

Please provide evidence.


Passing the patent bar requires a baseline of technical knowledge. I don’t know that a patent attorney, agent, or examiner knows “as much about software” as you or GP, but it would be wrong to believe they are ignorant on the subject. https://en.m.wikipedia.org/wiki/USPTO_registration_examinati...


I've worked with several. Computer science degrees, publications, time working at Microsoft and IBM, etc. All of them were as qualified or more qualified than I am.

As it happens one of them left his law firm and founded a software company.


> most software patent lawyers know as much about software as you or I do.

> I've worked with several

To be fair, that's not a compelling answer. Given the outrageous cases that are publicized, I can understand how there is an incentive to NOT know (or act as if) in an exploitative manner. According to a razor, it's less likely that the competence is a standard or relevant.


What would make it a compelling answer?

I have noted elsewhere that the outrageous examples are publicised because they are outrageous, but that doesn't make them a valid statistical sample of all software patents.

Patent lawyers need to understand the material well enough to draft the claims and perform clearance searches. If they can't do that then they are sailing towards failing their fiduciary duty; a lawyer anxious to hold onto their bar membership would refer you to another one with a speciality in the field.

If I go to a criminal lawyer and ask for tax help, they will refer me to a tax lawyer. If I go to a chemical engineering patent lawyer to talk about a compression algorithm, they will refer me to a patent lawyer who specialises in software and computing.


You can be an expert in anything. Someone being an expert in torture doesn't mean non-experts can't say torture is a bad idea overall.

> who do patent law as their sole job

Then they have all the incentives to keep patents alive.


And as a software engineer I have a strong incentive for copyright to exist. That doesn't disqualify me from holding opinions about it.


I think it's a bit different. Your job wouldn't disappear if copyright disappeared. You may need to change your approach in business, but on a technical level, things stay almost the same. We were pretty much in that situation in some European countries in early 90s. (at least from enforcement point of view - lots of pirated software sold at marketplaces in the open) People still created software.


If there was a way to bet on this, I would wager the net present value of my income for the next 30 years on it and expect to double my money.


It'd be extremely foolish for any advanced economy to give up on intellectual property, including software patents. Which is why it's not going to happen.


Everything I've ever read on the subject says that China is far and away the greatest infringer of IP. American companies have almost zero capacity to prosecute infringement claims in China, but Chinese companies operating in America have no particular barrier to suing.

Frankly, I'm amazed that American companies haven't banded together to call for the end of software patents to erase that enormous and expensive trade deficit.


IP infringement is one half of the coin, industrial espionage the other.

Historically, some of the very earliest documented cases of industrial espionage were performed against China by european powers. - The US is not innocent in that regard either, but probably much better at hiding their activity. We needed Edward Snowden to substantiate what people in the industry here in Germany had been suspecting for decades [0]: I've heard of numerous cases where german companies are developing new tech, and shortly before or after release an american company with close ties to the government releases an equal product.

[0] https://www.spiegel.de/international/germany/german-intellig...


It's unlikely that China will remain so in the long run, as their own R&D output continues to rise.


Foolish for the companies currently on top, yes. Not necessarily foolish for consumers, that are harmed by competition being stifled by patents.


By itself, knowledge is a public good. It's not excludable (I can't block non-payers from getting it) and it's not rivalrous (your use doesn't reduce its value for someone else).

Public goods are chronically undersupplied in a normal market situation. Providing them imposes a cost on the provider, but because the good is non-excludable you're relying on the goodness of consumers to pay for it. Some will, some won't, but the net amount recovered will be less than it would be otherwise.

So what do we do about the undersupply of public goods? There are a variety of options. Taking knowledge as a particular example, one option is the patent system, which grants a temporary legal monopoly on the claims in the patent. It creates an artificial excludability that allows the provider of the knowledge to recover more of the cost of providing it. Overall that should raise the production of knowledge.

But, you say, that reduces competition. And sometimes it will. But many ideas can be substituted and so the competitors will patent different things. In fact the monopoly of the competitor gives them an incentive to find new ideas that the competitor hasn't found yet, an incentive which was weaker in the original situation.

The alternative is provision through a central supplier, typically: government. But it turns out that the costs of developing knowledge still remain, so how are they paid for? Taxes, essentially. Generally speaking the costs work out to be about the same, but become differently distributed. Instead of knowledge being created by active, incentivised parties who can then get a return from those who value the knowledge most, the incidence of cost falls on everyone.

Someone who doesn't value that knowledge gets ripped off, and someone who values it very highly gets subsidised.

That said: pure research almost always needs to be publicly subsidised because, by very sensible policy, the laws of nature can't be patented. And representatives passing public budgets can give consideration to which public goods ought to be subsidised, beyond the cold light of economics, as a principle of fairness or morality or furthering humankind.

But most knowledge is not pure research. So either we pay for it with taxes, or we pay for it with patents, or we pay for it by getting less common knowledge. Nothing comes for free. Not even ideas.


A very nice, very theoretical answer. But how are software patents actually used in practice? As drivers of innovation, or as a way to use not-too-clever-but-essential ideas as a moat to keep out competitors?


Absolutely as a moat, that's what makes them valuable. The point is that the moat becomes a public good once the patent expires. The moats would exist without patents, but there would be less total knowledge and less competition for an indefinite period, rather than a fixed one.

That greed is a motivation for obtaining a patent doesn't make them bad, any more than my decision to care about my wages makes me bad. Greed will exist either way, the question is how best to direct it towards maximising the total good.


> moat becomes a public good once the patent expires

I have heard this argument a lot of times, but I don't see how it applies to software patents in particular. At one of the previous jobs, I was doing some research, and there were lots of useful inputs: conference/journal papers, technical reports, thesises, and so on. The only exception are software patents -- I have never learned anything from them.


Since we're take anecdotes as the standad: I've done research and read patents too. I found clever ideas in all of them.


In all of them? I doubt it. I can believe that some software patent somewhere have a clever idea that is not described elsewhere -- but I still have to find such patent.

Let's take for exa/mple first google hit for "software patent", which for me is https://patents.google.com/patent/US6353926B1/en "Software update notification". In my opinion, it is completely useless.

- It has nothing particularly innovative. It describes a specific Windows update mechanism in needless details -- while it is a solid design, most engineers, given the same problem, would come up with similar design. I know I did, and I did not know anything about OSD, CDF or windows update subsystem at all.

- It does not present information clearly. The text is hard to read and needlessly complicated. There are better sources of information about this topic -- I am sure there is a MSDN article and a dozen of blog posts which describe this much better.

- It did not even motivate the inventor! I am almost sure that whatever motivation Microsoft had for promoting Open Software Description standard, it was not to get this patent.

So what good is this patent? As far as I can see, there is no public benefit at all. The only value is for Microsoft, so they can threaten others and stifle competition.


> Public goods are chronically undersupplied in a normal market situation.

We already have strong intellectual property protections, and yet you still claim we have an undersupply of those kinds of public goods?

Is there a lack of software being produced?

Is there a lack of books? Of blogs?

If the right software algorithms or the right books or blog posts aren't being written, isn't it because we've broken culture to discourage sharing? Every good idea that generates the next great algorithm or the next amazing book or blog post is sparked mostly by other people's work. Standing on the shoulders of giants and all that.

What we've done is to discourage free exchange of ideas and writings, without actually preventing it (piracy is still commonplace, just not in polite company).

Western society has fetishized the ownership of practical ideas (inventions), as well as words and pictures and sounds, despite no evidence that it actually helps promote progress.

IP creation is high-risk even with current IP protections. Reward (for labor) is highly variable. Most work ends up not being worth much. So the reluctance of most people to toil to invent something is due to not having the financial security (financial independence or a secure job) to do that. Most people who aren't famous can't live on a book advance, and there's no model for advances on not-yet-patented inventions. IP protection does not remove those barriers.

> In fact the monopoly of the competitor gives them an incentive to find new ideas that the competitor hasn't found yet, an incentive which was weaker in the original situation.

In the software patent world, when that happens, the competitor typically isn't inventing new groundbreaking ideas as a result of being forced to; they're hacking around the patent in very obvious ways, sometimes resorting to sub-par alternatives. Why? to avoid paying a ridiculous patent license fee which the patent holder is using as a moat rather than the original intention of recouping whatever sales they'd lose to their competitor.

Companies like Apple and Amazon, if they don't get to wage cold wars against their competitors for things like 1-click or whichever corner or symbol you use to get your phone to do something, would soldier on and continue selling mobile devices. Not only would it not make any difference to anyone, but it would increase interoperability since companies would be more likely to reuse familiar design patterns.

Here's a pure algorithm-design case study on the horrible effects of patents even by non-trolls: h.265 patents discouraged and slowed down mass adoption and prompted a bunch of major companies to waste a lot of time developing a marginally superior but much less efficient alternative in AV1. And for what? What poor starving coder wouldn't have developed h.265 except for the piles of gold bars they received for their effort? Wait... they did get piles of gold bars, didn't they?


> We already have strong intellectual property protections, and yet you still claim we have an undersupply of those kinds of public goods?

Normal market situation here refers to a competitive market without government intervention. Copyright, trademarks and patents are all government interventions. These greatly improve the attractiveness of creating software and publishing books.

> Every good idea that generates the next great algorithm or the next amazing book or blog post is sparked mostly by other people's work. Standing on the shoulders of giants and all that.

This is what I mean by knowledge being a public good. When it is shared, it becomes more valuable to society as a whole. But if sharing it is a burden with no prospect of profiting, less sharing will occur. Everyone wants to have a fire service, for example, but unless there is some mechanism to ensure everyone chips in, fire services will be undersupplied.

> What we've done is to discourage free exchange of ideas and writings

Patents are public. Trademarks are public. Copyrighted works are submitted to national libraries.

It's harder and more expensive to get unpatented work. I can download any patent from the USPTO free. If I want to read a paper published by the ACM or IEEE then there is a good chance I'll have to pay for it.

> In the software patent world, when that happens, the competitor typically isn't inventing new groundbreaking ideas as a result of being forced to; they're hacking around the patent in very obvious ways, sometimes resorting to sub-par alternatives.

And sometimes they will come up with better alternatives. But without having the patent being public, they wouldn't have anywhere to begin, because the details are completely secret. Patent coverage can last for 20 years, but the concepts and possibilities it can create start from the instant the application is first published. Whereas a company sitting on the idea for 20 years doesn't spark anything. For anyone. At all.


Note that international patent law isn't national patent law. Sure, it's possible to have your patent valid in multiple areas. But e.g. Chinese patent practice isn't quite in line with EU or US patent law.

Secondly: patents are inherently a form of publishing your ip. The "giving away" part is enforced by laws, but the whole concept of patents is to make knowledge publicly available. Typically, "giving away" is only restricted to commercial uses - anyone who duplicates the patented invention for personal use is fine. You may argue that that is foolish for an advanced economy, but that is what most of them do.


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


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?


>why should they become unpatentable because they're machine-implemented?

The machines, computers, are so widespread and accessible that a huge number of people are making such new methods constantly. The patent system hinges on a patent office that can reasonably assess novelty and obviousness. With software that's impossible.

I'm not saying that non-software patents are necessarily great, just that there's a clear distinction between a patent system that handles 19th century steam engines and a patent system that purports to handle software in an age of ubiquitous computers.

This is one of several intellectually honest cases for ending software patents that don't necessarily end all patents.


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.


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.


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.


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...

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


the list is incomplete. they list the active downsides, but they don't list the benefits of patents that don't apply to software, such as: patents protect your investment into the development of the patent. if you need to spend 5 years of research before you got a patentable result, then patents are an incentive to make that research. i can't imagine any software patent that took that much effort to develop.


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


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.


> If these algorithms were able to be patented globally, it would be a large benefit to the entire industry.

How so? The company is under no obligation to allow others to use the algorithm, and now it can sue anyone who uses it, even if they arrived at a similar solution independently. And by the time the patent expires, there may be a better solution, or the problem the algorithm solves might not even be relevant anymore.


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.


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...


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


Exactly, the whole point of patents is to avoid trade secrets. Trade secrets create much worse monopolies than the existing patent system could ever create, since their length is indeterminate. It's also hard to evaluate the ethics of a product directly without knowing its machinery.


> since their length is indeterminate

in the software world 20 years is almost as bad. by the time the patent expires the patented algorithm may no longer be relevant


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


Patents are about protecting how something works.

Copyright doesn't do that at all.


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.


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.


> Rewrite from C to java and you get around copyright.

This is incorrect. Translations, in either natural or computer languages, qualify as derivative works under copyright law.


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


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.


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.


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?


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.


Every patent is composed of ideas, based on a description of something that can be made by humans, thought of by a human.


> ideas area not patentable

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


Patents protect inventions, not ideas. https://www.legalzoom.com/articles/can-you-patent-an-idea


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


the "on a computer" days are long past. And, soon the remainder of those crap computer-related patents from the early days will expire anyway if they haven't been invalidated already.


A long time ago I was vehemently against all software patents. But as I thought about it more, I ran into the same problem you did: where is the boundary between a clear "machine" patent versus a software patent, especially if you look at modern microprocessors that rely heavily on microcode.

My resolution to the conundrum is this: software should be patentable, but we should recognize that the bar for a software patent is much higher. It is much, much easier to iterate on several ideas and concepts in software than it is in hardware: I can try five approaches in a day in software, but building five prototype machines may take several months.

As an example of something that might make the bar, I'd submit PageRank. It's easy to say that it's merely taking the eigenvalue of the Internet, so therefore it's not patentable. But the novelty and creativity is not in figuring out how to take the eigenvalue, but recognizing that the result of this operation is tremendously useful in the problem of searching the internet. The combination of the algorithm and the use it is put to is the basis of the patent--for prior art here, note that drug patents do not patent the molecule itself, or the process of manufacturing the molecule, but using the molecule to treat the condition.


The thing is, you don't need to build a machine to patent the design. You just need to design it. So you can still try five approaches a day for a hardware invention as you do for software.

I generally agree that picking the right line is hard and that nobody will ever be happy.


There used to be a requirement that you had a prototype in order to obtain a patent. I wouldn't mind going back to that requirement.


Restoring that requirement across the board would have a profound negative impact on the biotech (and likely I would guess, advanced materials) sectors. Think of, for example, discovering a useful small molecule, and wishing to build a moat around it while you do the med chem work for a lead compound.


You have to at least build the compound to do the assay to actually find out that it's useful.


What you describe is the current practice. What I am trying to suggest is that it is reasonable to be able to use a Markush claim for obvious related compounds.


Maybe, but it's not very tractable to have thousands of prototypes being delivered to the USPTO each day. The point of the patent is to provide all the information required to completely recreate the invention and explain how it works.


> Isn't that bad?

Yes. You don't invent or build math; you discover it. It's nature.

Patenting DNA is also silly for similar reasons.


You do however build software. Even with DNA, if you manually assemble a sequence, is it not something you've built? DNA imo is special not because of being something you discover, but because it's an integral part of everyone and the process by which sequences occur naturally is too random to guarantee that a sequence will remain unique.

Software on the other hand, is still the product of a thinking mind, so it should be given proper protections as intellectual property. However, the standard for the patent needs to be much higher than it is right now (presumably because those determining the uniqueness of the idea aren't all that experienced or up to date with the industry the idea relates to).

Either that or a better way for people to contest the validity of patents.


> Even with DNA, if you manually assemble a sequence, is it not something you've built?

That’s not what DNA patents are. People are patenting genes that they find in nature. No invention at all, nothing created.


One still could be able to license the software while keeping it closed source until one decides to let people use it freely.


Presumably in a world without patents a monopoly like google wouldn’t exist.


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

The investment. When you do process development or manufacturing the outlays for research and development are infinitely larger. You need a pilot plant, prototypes, testing, and soon you have spent tens of millions that you need to recover. In software you pay the salaries of a team of programmers. The investment in research that needs to be recovered before you can turn a profit is infinitely smaller, in software you have a government-protected money printing machine. Trade secrets work well enough.


Patents are not granted according to development cost or profit potential.


That is the problem. You have people patenting the problem space, and then they just squat there, preventing innovation. Imagine NMR processing. One company patents fast fourier transform, the other patents entropy maximization. Everyone else gets to pay licenses. The power of government has been suborned for private profit with no public benefit.


You can't patent a problem space. You can get patents on innovations in a problem space.

Several patents from several inventors can be directed to solving the same exact problem. It is the 'how' that matters not the 'what'


Patents are a tradeoff between granting a monopoly (generally negative) and creating a public good (generally positive). They're time limited for that reason.

If you find the patent valuable enough to license, you have the advantage that you have a description of the idea sufficiently detailed that you can recreate it after paying the license. The patent owner gets a return for their very chancy investment (well-prepared patents are expensive). After 20 years everyone can use it for free.

The alternative is that nobody shares anything with anyone. You still wind up with monopolies on ideas, but no incentive for anyone to convert their ideas into a public good after a fixed term.


> The alternative is that nobody shares anything with anyone.

Open Source software demonstrates otherwise.

Also interesting, several major companies in existence today (including a well known chocolate manufacturer) were started when their home country decided patents weren't useful, so stopped using them.


> Open Source software demonstrates otherwise.

Major opensource projects are predominantly developed by fulltime professionals working for companies that obtain patents as a matter of policy.

We have an example of what the world was like before patents: the guild system. It didn't appreciably advance technology.


Also, innovation is encouraged by forcing inventors to discover different ways to solve the same problem if licensing a patent is not an option.


Knowledge would still spread as people change jobs etc. Your view of knowledge seem very company based, but the know-how resides in the people and they move around.


Know-how is not the same as particular inventions. Besides which, confidentiality agreements would be much more aggressively enforced than they are now, to the point that they would make it unattractive to hire someone who's worked for a direct competitor.


Know-how may not be the same as inventions, but it is also not a super relevant distinction. This is because know-how begets invention, as it leads to knowing what tools are available for solving problems, and also to knowing what problems needs solving. Removing patents would change some economics around, but in the end it will not change the primary driver towards improvement, which is that people want better and/or cheaper stuff. Companies don't need any other incentives to improve the stuff they do - if they don't, the customers will desert them.

Confidentiality agreements for employees and former employees that doesn't actually give the employees something in exchange for that confidentiality, is not legal in my jurisdiction.


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


If you think there's anything clear about the demarcation between patentable vs unpatentable subject matter, you haven't read the caselaw. It's an unintelligible mess.


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


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


The USPTO disagrees.

"Although the Supreme Court has not delimited the precise contours of the abstract idea exception, it is clear from the body of judicial precedent that software and business methods are not excluded categories of subject matter."

https://www.uspto.gov/web/offices/pac/mpep/s2106.html


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.


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.


> 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.


Algorithms can apply to much more than just software though. The process to make a given drug, or a specialized manufacturing process is still just an algorithm. Doing so at scale requires specialized tools, but so too for software patents.


Cooking recipes are algorithms too. Why aren't those patentable?


They are, its just stupid hard to do so.

IE: Fast Food Franchise "Secret Recipes"

https://www.uspto.gov/custom-page/inventors-eye-advice-1


> Premise 2: Algorithms are pure mathematical objects.

Algorithms can actually produce a real physical result, whereas mathematics exists beyond pen and paper.

Algorithms that we (programmers) construct usually aren't done in terms of Turing machines or the lambda calculus. Therefore they're not purely mathematical.

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

A patent lawyer I worked with had a mechannical engineering degree. I'm fairly sure he knew some math that I didn't.


> Algorithms can actually produce a real physical result, whereas mathematics exists beyond pen and paper

You are confusing the algorithm, which is an abstract procedure with no physical existence, with the set of possible processes that can implement it.

> Algorithms that we (programmers) construct usually aren't done in terms of Turing machines or the lambda calculus. Therefore they're not purely mathematical

Sloppy math is still math. Any program that an interpreter or compiler will accept is a mathematical object. If it weren't, it couldn't be parsed. That said, it is possible for a mathematical statement to be undefined, ambiguous, or erroneous.


What is the hidden premise that precludes the alternative conclusion—that “pure mathematical objects” ought to be patentable?


The text of the law.



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


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.


The EU law on software patents is not that different from US law in practice. Computer programs are not patentable as such, but “computer implemented inventions” are patentable. In the US the Alice interpretation of Section 101 has a similar effect. Say you develop software that does object detection for LIDAR. You can’t patent the code itself. But if the code has an “inventive step,” you can patent the technical aspects of the object detection method.


French courts have already said they don't agree with the EPO practice to go around the law using "as such".

But the EPO keep polluting France with software patents.


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


> 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?


We don't consider 99% of them patentable. They're a technique, a style, an algorithm. No more an invention than a simple method for doing arithmetic.

Software can rarely come under a patent in the EU, but there is a very high bar to reach first. It's not my field so I'll avoid trying to explain where that bar is.


It is upon you, who think there is a need to replace them with anything, to motivate why. As far as I'm concerned, patents don't solve a problem and is therefore harmful.


What software inventors? All I see are people standing on the shoulders of giants claiming the next six feet as their own.


Make products and sell them


Sell support


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


I’m sure many (even those who are philosophically opposed to patents) do. It’s an unfortunate fact that things that are bad aren’t necessarily unprofitable. Which is why we need to take the option to get software patents off the table, the market isn’t going to do this on its own.


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?


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


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


We are talking about software patents here.


Do researchers work for free?


This: http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_...

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.


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/


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


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?


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


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


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


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




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