edited to add "software".
"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying."
So I agree; coding around patents is difficult given that they tend to be so hard to read and understand.
The claims in particular are indeed technical and difficult for a lay person to readily understand. But the background, the prior art and the description of the implementation are not. Background and prior art are a summary of the technical context and I have never had any difficulty reading or understanding this section. The description may be rather long winded as it has to detail how to implement the invention so that it may be implemented from the description by someone skilled in the art, but it isn't legalese and should certainly be understood by the inventor! The lawyer can't write this by him/herself.
I can certainly sympathize with those who can't follow the claims (although I have found it to be perfectly possible with determined effort), but I simply fail to understand how a lawyer turns it into something "I can't understand any more." Find alien and unfamiliar - yes. But incomprehensible?
As part of that arrangement, it seems like we ought to require that the disclosure be in English, not merely in a tongue that shares some English words and syntax.
Alternatively, you could say that the point of "legalese" is to define and convey ideas more explicitly than they can be defined and conveyed in English. Try writing a contract in "Plain English" - it will necessarily be full of ambiguity and uncertainty, which defeats the purpose of having a written contract.
Similarly, although programmers don't write code in "Plain English" I don't think we should begrudge them the right to keep using obfuscatory programming languages - even if it keeps the bastards employed.
I also believe that, by defining one's terms clearly, it should be possible to write unambiguous plain English contracts. Additionally, an English-parsable legalese needn't necessarily lead to an unambiguous interpretation when parsed as English, so long as it is unambiguous when parsed as legalese, and most of the meaning is retained when parsed as English.
If you don't know about the patent, then you're only liable for 1X the amount.
Moral of the story: don't read patents, you can only get into trouble. If you get sued after the fact, then you can change your code to work around it.
Ironic, given one of the original primary reasons for the patent system.
For a worse horror story, just take a look at Farnsworth trouble with RCA about the TV patents.
OTOH it does still preclude John from being presented with a problem and then doing someone quite ingenious to do a great solution that seems actually quite "novel", to learn that someone else did it years before.
But for patents, if you follow logical steps from a given problem then you shouldn't be granted a patent.
In fact the way patents should work is that the patent officer spends a week trying to solve said problem themselves. And only after that attempt, read the actual patent. If they're struck with, "Ahh... yes, good idea, wouldn't have thought of it mysefl" then its potentially patentable. But if the patent officer says, "Yeah, that was my second attempt." or "that's largely derivative of my general line of logic in my other attempts" then it shoudln't be patentable.
Does that really sound at all scalable (or even reasonable) to you?
I imagine that many of the proposals that move through the patent office are highly contextual and may be simple ideas wrapped up in daunting language. It seems reasonable that it would take far more than a week to even get your arms around some of the problems themselves, let alone the solutions.
Besides, if patent officers were such able critics, wouldn't they be more useful as engineers?
Basically the argument, which I find quite compelling on one level, is that truly obvious stuff is known and citable. Very simply novel inventions can seem obvious once they are presented to you. I found this a lot examining patents - they would often seem obvious but nonetheless be absent entirely from the prior art.
However, to answer some of the proposed solutions there is also the aspect of presentation of the invention to the public domain. That is, even if it were possible for an engineer ("the notional skilled man in the art") to create a close enough solution if they are set to work on a problem this does not provide a reason not to provide some form of patent protection.
The deal is that for disclosure of a workable, industrially applicable invention that a limited monopoly is granted. The monopoly does not only reward but also encourages. Whether others could solve a problem is not necessarily relevant to rewarding those who have addressed it and solved it. Do you see. You want to motivate progress in the relevant arts by rewarding those who solve problems in those arts by the sweat of their brow.
Re ability of patent officers: a judge can watch ice skating and tell you if the people fall over, if their toe-step is dramatic interpretation of the music or them tripping, if their Salchow is wobbly, if their outfits breech regulations, etc., but possibly barely ice skate themselves.
That said in the UK at least there is a good deal of art-specific expertise so much so that the patent office makes a substantial income hiring their examiners out to large companies to do "commercial searches". Mind you when we assessed international searches for the US ones were nearly always useless and had to be re-done (WO patents entering the national phase would sometimes have pre-existing examinations by foreign examiners, usually US or EPO).
>"more useful as engineers"
I don't think people stop being engineers because they become patent officers. That said they probably would be more use to the human race using their skills in a more directly constructive way but this assumes a lot about the world that just isn't going to happen. When there's no greed and everyone works for the greater good then we'll have no need for patent officers.
When a suit is filed, an engineer is given the problem and told to build clean-room implementations. If he gets it in under a month, it's obvious and overturned. If he gets it in a day, it's extremely obvious and the plaintiff is fined three times the asking damages. If he gets it in under an hour, thirty times.
This disincentivizes completely bogus patent claims, and should bring the total rate down to something manageable.
When the proposal is submitted, the engineer attempts the recreation. If he fails, the patent office pays him. If he succeeds, the attempted patenter pays for a month of his salary. If he succeeds in under a day, the patenter pays a year.
This gets up-front examination, but weakens the incentive to hire good engineers and doesn't guarantee to make trolling unprofitable.
Once something is patented, the idea is out there for others to hear about (not just because they can read the patent; the original inventors can now talk about it, too). And ideas that get out into the wild tend to spread.
On the other hand, after all these years of having patents on obvious things granted, it might be no bad thing to try throwing out some genuinely inventive patents instead for a change :-).
(My own preference: either do away with software patents completely, or substantially shorten their term. [EDITED to add: the latter probably only makes sense if you can greatly reduce the latency between initial filing and granting. Which would be a good thing anyway, for all patents.])
Then spend more than a week on it. I didn't use a week as "cap", but rather a starting point. If it takes a month, sure then spend a month. You'll get no arguments from me. Especially since patents regularly take 5+ years to get approved.
A year has 52 weeks (plus one or two days), if 2 of these weeks are vacations, 50 weeks remain. Therefore 1000 / 50 = 20.
The sheer volume makes it clear that the vast majority of patent applications are for trivial stuff. The system is broken, it's that simple.
Or think of it this way, a mobile phone: it could have novel programming, novel chips, novel screen design, hinge, case plastic, button return springs that last longer, easier to use touchscreen, stronger glass, more flexible, brighter, etc., any of these things might give it the market advantage. How many other things do you use each day, each of them could potentially be improved and that improvement be registered in a patent.
The parent spoke of applications for patents anyway. Granted patents in the US are apparently about 40% of this.
> In fact the way patents should work is that the patent officer spends a week trying to solve said problem themselves.
Does that really sound at all scalable (or even reasonable) to you?
So clearly you were saying that a week is too much time to spend on a patent. OK.
But in a week you can't understand the problem, much less a solution. So you seem to be saying that having a system where examiners approve patents they don't understand is preferred. I say that if the examiner can't understand the solution, much less the problem, then the patent is rejected. This will really get people to focus on writing clear patents, rather than the legalese that passes for a patent today.
But lets get to numbers. There are not 500 examiners. There are more than 6,000. So at one week per patent it's now less than two years per patent. That's actually about on par with the time today. That's extremely reaonable. And I'd argue that making patents more expensive, with less protection time, you'd reduce the number of SW patents, and thus probably can turnaround SW patents more quickly.
And to me that is one of the many problems with (software) patents: it relies on an inherently biased, subjective process to determine whether this objective, rigorous piece of thought is worthy of a monopoly.
And also recall with patents you are guaranteed another appeal to a different body if ever sued, the courts, where you can invalidate a patent. And if MS wins the i4i case the burden of proof will be even lower. And note, there is legislation going through congress right now to make it harder to win a suit, and also expands patent reexamination.
My point? The patent examiner is an important first step, but a patent that clearly has no legs should be defeatable -- if not now, in the near future.
The conclusion that you should be reaching is software patents are simply not a viable mechanism, period. In other words, even if you like the idea of patents in theory, in practice they do not work because we will never have enough patent examiners with the necessary expertise much less time to make valid decisions on patent applications.
Not so. I'm not defending the current system, just trying to demonstrate that your suggestion isn't feasible.
> There are not 500 examiners. There are more than 6,000.
Edit: found the data on Wikipedia: http://en.wikipedia.org/wiki/United_States_Patent_and_Tradem...
The real problem with software patents is not that the rules (including non-obviousness constraint) are flawed, but rather that the execution of those rules is flawed. Fix the right thing please.
I can't stand the idea that I might be in my shop/lab, working with metal/wood/plastic/chemicals, and develop something independently which later causes me to get sued. Abolish all patents.
Programmers on the other hand can indeed pop open an editor, spend a few minutes with Ruby on Rails implementing "a standard business procedure, but on the Internet!", and violate a patent. Or multiple patents. In fact, the very fact that we have patent trolls that can run around and sue business after business after business for the same patent, while the businesses have no evidence that shows they have communicated with each other about the patented subject, ought to be proof positive that the patent is obvious and shouldn't be patentable.
An amazing number of patents that actually are being litigated really are "X, but on a computer!" or some variant thereof ("X, but on a network device!" is one the company I work for has gotten hit with). I'm not exaggerating, for all the verbiage and diagrams this really is a reasonable summary of many of them.
Your metaphor fails, because what is not a realistic risk for people working in shops or labs is a perfectly reasonable risk for a hobby programmer, let alone a pro.
Perhaps programmers are overreacting because of all the bad ones and there is a core of goodness deep down in there, but I'm willing to find out the hard way.
It's a big world and there are a lot of smart people in it. History is full of examples of multiple people independently inventing/discovering the same thing.
May I also observe it isn't me making a normative claim that such things that are easily re-constructed by anyone should not be patented. It is descriptive, right in the legal definition of patent; it should be not obvious to one skilled in the art. Again, the very fact such a clause is necessary is evidence that there is a set of things obvious to one skilled in the art that exists, or why bring it up?
So we need something to get around the problem of 'see new thing - figure it out - declare it obvious - sue to overturn patent'. Maybe the proposed first-to-file requirement will help that by taking the patent office out of the history-investigation business and just acting as a recording service, letting the parties fight out their dispute in court; I hope so. But it's hard to come up with some catch-all definition of what constitutes 'obviousness' because that will always be open to both honest and mercenary dispute.
"should" is the problem with that argument. Just as "all bugs are shallow to the right eyes", all machines are obvious to a fair number of people.
> In fact, the very fact that we have patent trolls that can run around and sue business after business after business for the same patent, while the businesses have no evidence that shows they have communicated with each other about the patented subject, ought to be proof positive that the patent is obvious and shouldn't be patentable.
No, that's not "proof positive" of anything, any more than AG Bell's race to the patent office "proves" that telephony was "obvious".
> Perhaps programmers are overreacting
because the intertubes provide a great forum for overreacting. After all, overracting and porn are internet's the dominant uses.
Whether the person suing is or isn't a patent troll is irrelevant to your argument. You are basically arguing that if lots of people have done something without colluding it must be obvious. Not so.
I recommend this piece on hindsight bias. It is an extremely well documented fact that things rapidly become obvious after the fact.
Begin with field "Foo". Originally, a Foo-ist researched the creation of an improved Foo-er after twenty years of painstaking manual research and patented said device. All well and good and the situation "had nothing to do with computers" originally (hah!).
But then, someone else creates a "numerically controlled foo-ing maching" - an NCF. With an NCF hooked-up to a conventional PC, proper software and a careful look at the improved fooer, you can duplicate the twenty years of painstaking manual research. You've "stolen" the patent as fully as if you duplicated the original machine but your "theft" is entirely in terms of software. And it can very subtle: It might be algorithm is obvious but the constants used took twenty years of research to discover/optimize (I've done scientific programming where discovering the optimality of a simple number was our achievement for the week).
Note the "scare quote" here. I use steal/theft advisedly.
The situation of a numerically controlled machines basically cries out that you must either abolish all patents or make valiant effort to extend patents somehow to software. And while I like the idea of abolishing all patents, I also know that all existing patents together are a huge mass of value and abolish the patent system would entail a huge shock to the economic system and the professional/scientific world and thus a large number of power entities stand against either abolish patents and by extension abolishing software patents since by the arguments above, these amount to the same thing.
- Keep it as a trade secret. You get one source for a product, and less innovation.
- Publish it and suffer the consequences of the big companies copying it and making profit on your work.
Let's take the funny example of Amzon vs B&N on the one-click system. Do you think Amazon would not use the one click system if it were unpatenable? In the case of modern software patents, keeping it a secret is equivalent to not using it all. Since you invented it in the first place, I find this outcome to be excessively unlikely.
You are also suffering under the misconception that a lone programmer or programming pair would be incapable of standing up to big markets with a software invention. If his invention is really worth it's muster, he can come out with a profitable product that blows big companies out of the water. I've seen it happen before.
Patents are (theoretically) a pragmatic compromise between 1) the benefits to society of having people publish their ideas, and 2) the drawbacks to society of giving someone a time limited monopoly on the exploitation of the idea.
For software I believe the drawbacks in general far outweigh the benefits. There might be examples of "nobody else would have thought of this within the patent period" inventions, but they are rare enough that it does not make sense to have special laws for those cases.
In the physical "better mousetrap" world the issue is different. The situation is similar to the Hacker News startup world in that ideas are plenty. However, the cost of productizing the ideas is high, and there is less of a first mover advantage, access to distribution channels is more important. So patents in the "better mousetrap" world protects not the idea, but the investment of turning the idea into a product. The drawbacks of patents here are also smaller, as you rarely build unrelated products upon the "better mousetrap", so the cost of a monopoly often stays limited to the specific market. Patents here might be a good compromise.
In medicine there is a similar situation in that many ideas are "free" from public funded research, but useless without the very expensive clinical trials. The patents basically protects the investment in clinical trials, and no so much original research. However the cost of patents is huge. People die because they can't afford patented medicine (which include initial cost for the clinical tests, marginal cost, distributed cost of failed products, and profit), even though they could easily afford the marginal cost alone. It would be good to get rid of patents here, but they must be replaced with another system to cover the cost of the clinical tests.
The argument you're making is basically that the system right now is broken, so we should just throw it out. I do agree that it's broken, but I argue that fixing the system is a better solution than throwing it out.
Do you honestly believe there is such a problem with sharing innovation in the software industry, that we need government intervention to encourage sharing?
if you have ever worked for a software company that has a competent legal department, you know that you must stay away from patents. under no circumstances are you allowed to communicate that you have looked at any given patent or even acknowledge the existence of a patent.
patents are treated with more fear than toxic waste in IPR sensitive businesses.
besides, if you don't publish and you do something clever, how long do you think it would take for the competition to figure out what you were doing? or for people in academia to publish something on it? or for some independent blogger with too much time on his or her hands?
I wish people would consider reality rather than some make-believe world that does not exist when thinking about patents. so much time, money and intellectual energy is wasted on this nonsense. not to mention that it is clogging up the courts with absolutely pointless legal battles.
we, as a society, have better things to do.
Let's take what I often here cited as one of the best software patents (personally, I think it is the worst.. but that's another story), RSA. Did that patent really prevent others from using/profiting on it? Hardly (although in most cases the "profiting off of" thing is a stretch, unless the explicit purpose of their product was cryptographic in nature.
Now, what if they had kept it a trade secret? Just look at their RC4. They kept it a secret and got a few years of exclusivity but eventually we all got the algorithm, because that's just how software works.
20 year exclusivity contracts are waaaay too long. I think the trade secrets route where "you have it until others figure it out" is far more fair and workable.
Also, hardly any secret can be kept for as long as a patent lasts.
Conversely a software idea can be thought up in a few minutes and implemented in the same. In app purchases isn't exactly a clever idea or something that was revelatory. It was simple software evolution.
The bottom line is that patents are patents. It's inconsistent to be against one type and not another. I understand why patents exist, but I also agree with the Carmack statement above.
(1) This is clearly not true. I know someone who patented an idea relating to battery management hardware that occurred to him as he was describing a problem to me. It was novel and "not apparent to a similarly skilled person.. etc." But it didn't take any more investment than pen and paper to think through the concept.
Edit: Since people aren't convinced of my postulate that all algorithms are mathematical equations, here's a proof sketch:
All programs can be rewritten to be expressed in Haskell. All Haskell functions can be expressed as equations in the typed lambda calculus. The lambda calculus and its variants are all subsets of mathematical equations. Therefore, all programs can be expressed as mathematical equations.
That said, this argument is a bit of a non-starter: software is mathematics, sure, but mathematics are not patentable by legislation (at least in the U.S.). Legislation is easy to change, and it likely will be when people finally accept the "mathematics = software" argument.
Seriously, though, the legal issue arises from the fact that the patent is not (or rather should not be) granted for a pure mathematical abstraction, but for a product which applies such abstractions to some novel purpose. Mathematical discoveries are not considered properly patentable because mathematics is held to be part of nature's bounty - a highly debateable philosophical proposition, but there it is. But being able to describe a thing in mathematical terms does not equate to that thing being a mathematical statement and therefore unpatentable.
Let's consider the steam engine, for example. The interplay of pressure, volume, and temperature can be modeled with very simple mathematics, as can the mechanics of a drive train to convert the motion of a piston into work by turning a wheel. You could write down all the math necessary to accurately model a steam engine or indeed a train in a few pages. Likewise, we could argue that that the giant boiler on wheels that constitutes a train is no more than a restatement of those same mathematics, along with a few supplementary remarks about the properties of the materials used to express the primary equations of the system (eg the tensile strength of iron, the viscosity of the lubricating oil and so forth). This is true enough in a philosophical sense, but talk is cheap. Building a working steam engine is a lot harder than coming along afterwards and observing that its characteristics could be reformulated as a mathematical statement.
Now software is different, insofar as we can take the source code or even the object code and convert it back to a set of mathematical equations with considerably greater ease. But again, it's not the underlying mathematical statements for which a patent is (ideally) sought: it's for the black-box implementation that allows someone with zero knowledge of the underlying math to make use of the invention. If you rely on the philosophical argument that all code is inherently an agglomeration of mathematical statements, then you must agree that, say, Farmville or Pac Man are in fact part of nature's bounty as well, due to their mathematical foundation as computer programs. That's an argument which would be extremely hard to sell, either in court or to the general public, and with good reason - most people consider the development of a computer game to be a creative effort rather than something that was sitting about waiting to be discovered like the law of gravity.
One could say that Pac Man was in fact sitting around in 'the space of all possible games yet to be implemented,' but then again one could put someone in prison and say that freedom is a state of mind too, or kill a person and argue that it doesn't really matter because they're still alive in the past. These are interesting philosophical avenues to explore, but only on a voluntary basis. Courts are a reflection of the society in which they operate, and theoretical arguments like this which take no account of pragmatic considerations usually go badly for the proponent.
But let's say that you argue there's an important principle at stake here, and get the court to agree about the fundamentally mathematical nature of computers and the programs that run on them. How then do we deal with the fact that board games are patentable? After all, a board game is just a set of tokens and some rules for manipulating them, whose utility lies in its capacity to entertain or edify the players. If we outlawed software patents tomorrow, then couldn't patent trolls simply switch to patenting 'games' in which their algorithms are presented as rule systems? True, few people would fancy playing Super Bubble Sort or Mem Cache Plus all night, but patents are not granted on the basis of popularity.
Again, I'm not out to defend software patents - I'm just bringing up these arguments to point out why 'programs = math, therefore software patents = invalid' isn't the irrefutable legal argument that so many people seem to think it is. Where to draw the line of what can be patented is a much trickier question than it may at first appear, and if our approach to this Gordian knot is to get rid of the patent system altogether, then one needs to address the problems that predated its creation.
The neat part about mathematics is that your approval, or anyones approval for that matter, is not necessary. If the proofs are solid, it holds. If you want to properly "disagree", demonstrated rigorously why the proofs are flawed.
"If it were that simple to overturn software patents it would have happened years ago."
You assume that the people in the position to make decisions are competent.
Not at all; there's a large volume of patent litigation, and it's reasonable to assume that at least some of the decision makers are competent to evaluate such elementary arguments. Your argument requires universal incompetence by litigators and/or decision-makers.
Incompetent and or comprimised. Yes.
Seeing as we're talking about lawyers and politicians here, I don't think this is all to stunning.
On the other hand, the numerous proofs that software is math are fairly trivial for anyone with a modest background in mathematics.
It's the modeling of physical systems that its patented, not the physical object itself. Those patents usually protect the inventor from people creating any number of variations on their exact design because it's the approach to solving a particular problem that is being patented.
I think there are a lot of people who take an absolute position against software patents and end up going through all sorts of contortions to differentiate between why ideas in the physical realm should be protected and ideas in the software realm should not.
That said, I certainly agree that most software patents are far too obvious and not deserving of any sort of protection. The challenge, of course, is how to fix the system to afford protections to real innovators and not to those who simply connect the dots.
Algorithms are mathematical equations. They cannot be patented.
I know the mantra. I just don't buy it. Math provides the building blocks used to produce creative (and sometimes very innovative) solutions to problems in the form of software. Material properties and laws of physics similarly provide the building blocks used to produce creative solutions to problems in the form of physical devices or mechanisms.
Just because the basic building blocks used to formulate an innovation aren't patentable, it doesn't necessarily follow that the innovation itself shouldn't be patentable if it's truly innovative and worth protecting (which most software patents certainly aren't, but some undoubtedly are).
That leaves the patentability of math. Man I wish I had a time machine so I could go back in time and convince Pythagorous to patent his little triangle formula in the context of architecture. I could make a killing.
However, if I independently develop a piece of software or an algorithm, there is a very strong chance that it took me the exact same amount of time and effort as the person who originally solved it.
In the former case, it makes sense to enforce a patent, as copying their design directly eases my ability to go to market with something.
In the latter case, it doesn't make sense, as I now have to pay someone else, despite having done the work.
Note that I see copyright, intellectual property, and patents as completely different things. If I'm using someone else's code/libs, then obviously, I feel it is worth the ability to enforce. However, that already exists without the patent system.
These two instances are completely different. What about the hardware engineer who independently developed a piece of hardware? It would take him around the same amount of effort to create it as the original. Just like the software engineer who cribbed an existing design would have to do much less work than the original.
0% of the differences in effort have to do with physical vs software, and 100% to do with what references you have available to you before you get started.
You have 10 minutes, give me an implementation of something that improves upon H.264 by 30%.
It might be by analogy, a technique from a different domain, from similarity with something you did with lego blocks when you were 9 years old, from a mishearing when discussing something with a fellow developer, from ignorance of the known techniques in a particular area and trying to solve it from first principles, etc. You do need some familiarity and experience in the domain in order to recognize the utility of the novel technique. It might happen once to you, but it's unlikely to happen 9 times.
More importantly, it's also probably going to occur to someone else, sooner or later. New discoveries tend to be repeated, that's a common theme in the history of scientific and mathematical development. By advocating patents for these things, you suggest the mere chance of coming first means you get a government-granted right to extort from other people.
> a software idea can be thought up in a few minutes and implemented in the same.
This is only true for trivial pieces of software. I agree with you that trivial pieces of software should not be patentable. But you're saying that no piece of software should be patentable, regardless of how complex or innovative it is, and there I strongly disagree.
You both agree that there is major variation in how much "effort" goes into producing patentable work. Your problem is you want a very clear-cut definition specifying what is patentable, and since effort is hard to measure, you'd rather just throw out all patents. You assume this would be better than the current situation (which, I think, takes the other extreme - most things are patentable).
But why do you think the way you suggest is better? Just because the current system sucks?
(Forgive me if I misrepresented your argument).
Half of the tech industry with respect to software is finding something someone else is doing, and building on that but making it better.
I think that software should only be protected by copyright if the source code is placed in escrow and made available when the company goes belly-up or when the (strictly limited) copyright period expires.
I think that the patent system needs to be thoroughly reformed so as to do a better job of covering software, hardware, and a blend of the two. John Carmack's example is compelling but if patents were handled properly the odds of such a thing occurring would be as remote as the odds of doing the same thing in your backyard workshop with a lathe.
No. The difference is that PHYSICAL TANGIBLE things exist in the "analog" realm have infinite possibilities. Things that exist in the digital realm have a finite number of possibilities, and if you limit yourself to a particular subset of things you can even possibly do (such as those things which are implemented in computer programming languages), the odds go up greatly. If I tell someone to build a table leg on a lathe, there would probably be many variations between skilled builders. If I tell someone to make an efficient file store (or in patent speak "digital storage"), lots of people would probably come up with something similar...but that's patented: http://www.google.com/patents?q=digital+storage&btnG=Sea...
1. The length can be infinitely long, therefore the number of possibilities can be infinitely long.
2. For all practical purposes the space is so large it is infinite. How many possible permutations of 1s and 0s can you get in a 1024 KB program. Many.
3. If we go into the more practical example you raised I doubt there is much difference between the variance in resulting table legs and digital storage applications. If anything, I would say there would be more variation in the software, simply because the high cost of iteration and experimentation (and stricter physical constraints) have narrowed the design space of table legs, in a way which is much less apparent in software.
I'm not a fan of software patents. To be honest, I wish we didn't need a patent system at all. But since we don't live in the Star Trek universe and world communism turns out not to be the economic panacea that its creators hoped, we need something to protect the rights of inventors. Same thing with copyright - before it came into being, artists and writers had to rely either on fickle patronage or else hope to make some money on their first sales run because after that it was a free-for-all. Although I hate the way IP law and institutions have swung towards the opposite extreme and are now damaging to consumers and the general cause of innovation, those rules exist to solve a genuine economic problem.
It would be easier to overturn software patents if there were some alternative proposal to reliably secure the fruits of innovation to the inventor. If that task is left to the market, then a) there's abundant evidence that profit will win over ethics, and consumers won't know or care and b) people whose time is best spent innovating will have to spend more effort on marketing and monetizing their IP and fending off competitors, which is inefficient for solo inventors or small firms. So is spending a lot of time on patent work, admittedly, but a patent is a more reliable shield against having one's invention ripped off.
Coding is a creative process - I write pages of code each day and every single line and idea I use in there might be covered by a patent of which I haven't heard yet. How is that supposed to work? We don't have patents for writing, music, painting, etc. although you could use the same arguments about original work and the danger of people ripping it off (we do have copyright!).
Would you still be in favour of abolishment, and if so why?
Basically, you can't prove 1 person did not read it. But, you can be positive 100 people did not read it. Now clearly this depends on the number of people working on the problem. So, while 100 is excessive in most fields, somewhere around 3-10 is probably a good lower bound.
Every time I stare at that patent submission form I can't help but to imagine somebody doing a cool thing which does something similar, getting squashed by a lawyer.
I've a couple of those forms which I filled, but never submitted.
So while, yes "the same applies", the cost/benefit ratio of the two situations is totally different.
In practice, they're used by large companies to prevent lone programmers or small companies from breaking in to the markets they dominate. I do not consider this to be desirable.
They're more trouble than they're worth.
What really needs to be cheaper and easier is getting invalid patents overturned.
I still think the software patent system as it stands now needs serious reform but you know, that saying about a broken clock and all.
Isn't this what "free market" is all about? You can't have both.
I don't think this is a pro/against free market. Free markets rely on some definition of property rights. This is about making those definitions.
The distinction is important, because if it is the latter we just heed to lobby the right people. If it is the former, we just don't have enough money.
There needs to be a fast, cheap, reliable method by which small businesses can determine whether they are affected by anyone else's patent rights, and if so, by whose and to what extent. This way they can enter useful negotiations and adjust or abandon their plans as appropriate if patents are involved, or they can build their business free of unknown liability otherwise.
Given that I can see no viable means of ever constructing such a system, I don't see how patents or any similar legal tools will ever be anything but a tool for those with vast resources to crush competitors with few resources through means other than fair competition in the market.
But there are also some pretty deep stuff that seems less obvious, my favourite example is MP3. I'm no expert in the field, but it does not seem at all obvious to me to compress music like that, and it seems to be the result of a real invention process.
It's clearly in everybody's interest that they publish their codec as widely as possible, rather than make a broke-by-design binary-only distribution. Why should they not be allowed the same protection as, say, Volkswagen inventing a new fuel pump?
However, there are a lot of very smart people who invent formats and don't patent them. For instance the JPEG format is clever in a very similar way to the MP3 format. In this instance the format was created by companies with an interest in a great format for their devices - cameras for example.
MP3 (well, a lossy music codec of some kind) could have been created by a similar group trying to make music players interoperable. It might have even been created by open-source advocates. Think Ogg-Vorbis, for instance.
I don't think that we'd live in a world with less cool formats if patents were abolished (yay!). If a format is required to solve a problem, it will be created. Open protocols without patents should be encouraged.
Theoretically, it's possible, but in theory communism would work if everyone just did their best to make it work. Reality is different.
There are obvious and simple ways the patent system could be improved. For example, drug patents already are treated specially, in that they expire quickly--perhaps a similar system could be applied to software patents. Or, exemptions could be made for implementations of patented software that exist for reasons of interoperability or compatibility. Another option would be to enshrine into law the promises companies make not to sue. (As in, the company is not allowed to renege on their covenant not to sue--this is actually probably not really possible from a legal standpoint, but I'm not an expert.)
It is clear what the majority opinion here is, but I see well formulated comments supporting the minority opinion being voted down. If you think their arguments are wrong, don't vote them down. Instead, vote up the comments that explains why they are wrong.
That said, it's obvious that the current system is broken; there are many patents which do not seem to do anything new, and simultaneously the cost of applying for patents deters the group for whom they are most important -- small innovators who are unable to commercialize their inventions.
The system needs to be fixed, not thrown out.
I don't think it should be possible to patent an equation, but I'm perfectly find with people patenting (subject to non-obviousness, lack of prior art, etc.) ways of using an equation to do something useful.
If patents had existed when Scipione del Ferro discovered how to solve cubics, I would have no problem with him receiving a patent on his method -- but because patents did not exist, he never published his method (he kept it as a "trade secret") and it wasn't revealed until 19 years after he died.
I think the court's decision in Gottschalk v. Benson demonstrates a level of understanding of computers typical of members of the general public in the early 1970s -- i.e., almost none at all. To say that a process carried out via software is different from a process carried out in hardware (or even more absurdly, that buying a $5 CPU transforms a process from "unpatentable software" to "patentable machine") makes no more sense than the flood of "do X over the internet" patents; hardware or software or wetware, internet or telephone network or messengers riding horses, a process is a process regardless of the components it's built on top of.
(The same "(computers|internet) are magical so we need to treat them differently" thinking also results in politicians passing silly laws concerning things like "harrassing someone via the internet" where the pre-existing laws are entirely sufficient.)
I had an inkling feeling that the software/mathematics argument is not compelling (not because software isn't mathematics, but because the practicality of invention and patent render it different in practice), but couldn't articulate it.
I still think that software patents have turned out to be dangerously unproductive in practice and so would rather see them abolished entirely than in their current form, but I think I more fully understand my position now. Thanks, Colin, for participating in this little Socratic dialog.
I absolutely agree with you here. The current state is a horrible mess. Where I differ from most people here is in my belief that software patents aren't inherently a bad idea but that the problems are merely with their current implementation (and thus I'd like to see them fixed rather than abolished).
Are you a software developer? Do you understand that often times, there is only a few logical ways of doing something?
Yes, I'm quite aware that some problems only have a few feasible solutions.
Patents are a method to protect significant costs cost of an invention (to incentivize research).
Having an idea for an algorithm is does not represent a great cost and it is not in the interest of society to grant a monopoly).
I'm working at the moment, so can't refer to the book; if anyone else has it handy, please supply said quote. :D
We all roll our eyes and go "Damn these patents! DAMN THEM!"
But then I think of the purpose of the patent system in general: to protect and encourage innovation. I think of the research scientists coming up with approaches to genuinely unique and interesting problems and yes, I want them protected from getting rail-roaded by larger software firms.
I've discussed this with a patent attorney before and his feeling is that software patents are generally a good thing, but there has to be ONE change that would do away with most of the bullshit patents: proof of implementation.
Right now, apparently, I can patent the 40-click checkout process and sue Amazon when they implement it... but I never need to implement it, release it or use it in production. I just need to think of the idea and I can patent it.
I imagine a lot of these IP-only firms wouldn't have such a strong grip on stupid garbage patents if it required them to show working implementations.
I believe this is the same way with patents in manufacturing. Someone correct me if I'm wrong, but I think you need to produce the mechanical process you are patenting and at least show it is viable before patenting it?
Whether that is true or not, requiring that of patenters would go a long way of making the work more worthwhile and not just a bunch of lawyers sitting in a room with a few engineers, waving their hands around all day until they invent and patent the use of desk chairs.
Oh, you can't patent a perpetual motion machine, but you can patent an improvement to a process without showing that you can implement the whole process.
Suppose that I come up with an improvement in making steel in massive amounts. Do you really think that I shouldn't be allowed to patent it without building a large steel mill? (Two interesting cases are the lone "nut" and a university researcher.)
That requirement was abolished (in the US, at least) in 1880. I've been told that the USPTO still asks for working models when people try to patent perpetual motion machines, but I don't know if this is true.
Yes - many silly patents are being filed for unreasonable reasons (fight patent wars, get a bonus, etc.) But making a distinction based on only on way of implementation is just as silly.
You might have a better idea than the last guy, but chances are your idea overlaps with his a little. If your new idea has some similarities with an exiting patented idea, implementing it could be risky. If engineers did a patent search for every idea they had, they would find some overlap with existing patents every single time. Nothing would ever get created. The true evil of patents is that they actually stifle, rather than promote, innovation. The effect of patents is opposite their intent.
Just because someone beat me to the patent office legally means I'm not permitted think up the same idea and use my computer to do the same. It's not even about copying, I'm legally limited in what I'm permitted to think up and do.
As we've seen, software patents stifle creativity and innovation; reward those with money rather than creative energy and ideas.
Software patents strikes me as signaling for geeks, or the techno-libertarian-esque streak that is pretty common in the community at any rate. Is it an important issue? Well, yeah, I'd love to see it addressed. Someday. Maybe after flag burning.
There are many, many issues used for signaling that I feel about similarly.
I'm not just flag burning here. Privacy might be a better issue to put into the "tribal affiliation" buckets as I have heard of few real instances where privacy actually harmed a real person (I'm talking about stuff like google tracking your searches). As a developer, there is a real chance you will get sued over patents, and if you do there will be real damage done.
Maybe you're right that being against software patents is generally a tribal signal that says "I'm a hacker" or "computer-type".
When I logged into the comment thread, I was thinking the exact same sort of thing. "Well Duh"
The Hacker News audience is somewhere near 100% the exact demographic that you'd expect to be generally against software patents.
It's like logging on to a Twilight fan-board and asking "Are vampires Awesome?"
The communications pools in particular are worrisome -- the licensors in the pools used to be manufacturers who happened to hold patents and used these pools to encourage widespread adoption but the increasing involvement of holding companies and pool packagers is turning licensing into a primary business, which is overall bad news.
And this harm is ignored by almost everyone (at least somebody else in this thread pointed it out) including "geeks" the focus is on specific examples of patents being abused).
If you come up with something new, and write it up clearly enough, it can go into The Book. You get royalties for X number of years (maybe 5? idk). Everyone uses this as a resource. Perhaps there's ARIA-like licensing (where a cafe pays a standard rate to play any music they like), for usages based on how many people use it (so a small software shop pays a small annual fee, and google pays huge fees) - or more likely the owner sets the price. Like an app-store for algorithms. After X years, it becomes free.
The patent system is nothing like this. I'm not sure it's even technically possible, though certainly textbooks get written and some of them are excellent (perhaps with financial motivation, you could employ people like David Flanagan writing up algorithms).
Having such a Book would being programming much closer to an engineering discipline. It would also make contributing to the Book a badge of professional honour, and not disparaged as patents are today. Really, anyone who invents a new and useful approach should be lauded - but the patent system has strayed far from this.
Software patents are when someone picks up a screwdriver and says "I'm going to use this to pry the lid off the paint can. No one else can do that now, ever again."
Patent system simply does not serve it's purpose (which ws to motivate inventors to publish they ideas, so they could be later reused) as patents are intentionally written as to be unreadable and uninformative. And this happens not only in "software" or "business method" ones.
But here's a more pragmatic argument.
The current patent system exists to provide financial incentive to bring the number of inventors in an untouched area from 0 to 1.
It is completely broken wherever it brings the number of innovators in an emerging area from 50 to 1.
The first case is probably true in any industry with high startup costs and unproven technology. The second case is true of software and services on the still young, still evolving internet, with low technological barriers to entry and fertile soil as far as the eyes can see.
If we want to see what innovators are really capable of, we'll get rid of software patents and watch them duke it out in the market.
Should I be able to patent this technology? Should I just release it? If I just release it, wouldn't a large company patent aspects of it and sue me for infringement (it costs $ to prove prior art).
At the very least, wouldn't a patent give me the option to open source the technology without the risk of aforementioned large company coming after me? And if said company does come after me, would it not give me a chance to buddy up with another "large" company?
If you publish your code, it becomes prior art. It doesn't cost much to stand up in court and say "uh, look guys, this code you're suing me over was published before you applied for your patent", and the case would be thrown out immediately.
In practice I doubt it would ever get that far: If there's one thing patent lawyers pay attention to, it's dates, and lawyers hate looking like idiots.
Of course, they did back down once the facts were explained to them so you're right at least that far.
* a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring
a record search means utilizing a search key to access the linked list
the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed
* a means – utilizing the record search means – for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list
Switzerland continued in the German tradition until recent years, and had a flourishing pharmaceutical industry, despite the lack of patents.
EDIT: IMHO I think patents can be good, but in some cases (especially software) it is too hard to draw a line between what's patentable and what's not. It is also highly subjective, market dependent, and far reaching in it's implications on preventing innovation if not done right.
Patents are designed to encourage and accelerate creativity and innovation, today they do exactly the opposite. They should go away.
I would support some kind of software patents for truly novel inventions. However so many software patents that I see are almost insultingly obvious, even when you place them in context of their time.
So, yes to software patents if:
1. Shorter time period - 20 years was based on an industrial era time frame for physical manufacture and distribution
2. Much higher threshold for obviousness. Companies should have to declare problems they are applying for patents for publicly and fund a bounty for members of the public or any challenging organization to win by submitting solutions. Only when third parties fail to suggest the methods in the claims should something become patentable.
Let's shorten the length for software patents. For the duration that it is valid, the patent office simply acts as a custodian of the code, ensuring that it works and certifying that it is novel. The patent office should maintain (or contract a company like GitHub to maintain) the repository of pending public domain source.
And once the patent expires, the source is released into the public domain, still under source control.
We can also strengthen prior art rejection of bad patents.
Finally, give enforcement more teeth, but narrow the scope to match more closely what is checked into the repository.
A system like this is more in the spirit of what a patent is: a temporary monopoly with a public-domain disclosure of the idea at the end of term.
People hear about patent trials but not when startups get their business model copied or stolen by bigger companies. They don't make any noise when they are smashed like moskitos. In one story I've hear of first hand witness from the bad guy side was that they didn't simply trick them into explaining their secret sauce recepie, they also phone the bank and their investors to stop fnancing them. They where big enough to do that. If they had pattented their method for mobile phone geolocalsation in 1999 in absence of gps at the time, things would have probbly run differently.
Patent troll is bad, but when it is for the initial idea of it, that is protecting its inventor during the process of creating the business around it, then I think it's fair.
Maybe 20 yeas is s bit long consdeing computing technology evolution.
Bottom line: patents exist to foster innovation both for creators and users of ideas. Software patents do not accomplish this goal, and they are beyond redemption.
There was a story not long ago about how somebody had patented doubly linked lists (or maybe how to traverse a double linked list, I can't remember the details, but it was just as obvious).
The issue seems to pop up every couple of years. Each time, abolition of software patents seems closer and closer, but never quite gets there.
I'm glad that software is unpatentable here in Costa Rica (as far as I know). I hope we never get infected by this detestable legal concept. As someone who develops software for international markets, though, I'm afraid I'm not immune to this issue, even if software patents are locally unenforceable in my case. I hope developers in other countries (the U.S. in particular) will care enough about this issue to organize and seek reform. Please, do what it takes to convince or hire legislators to remove or drastically reform this misguided legal concept!
IMO the fundamental problem with software patents is that the bar for a "patentable invention" is far too low.
Abolishing software patents isn't feasible for me. What about the firmware embedded in many current hardware devices. Where would you draw the line ?
If you abolish patents this really would disadvantage start-ups as large corporations could easily copy any good invention before the start-up has reached critical mass.
I feel conflicted about having my name on several software patents - on account of working for (or co-founding) companies that needed defensive IP. Had I not been on the receiving end of a ridiculous software patent lawsuit while I was working at a startup, I would never have filed any patents when I started my own company. If the startup I worked for had not been acquired before they lost said lawsuit, it would have killed the company, destroying some amazing innovation and killing a couple of hundred jobs.
As things stand, even folks who oppose software patents don't really have an option but to file patents of their own unless they want to risk being sued into oblivion with no bargaining chips of their own.
Independent invention should negate infringement issues. In fact, in some cases (invention from an even less extensive background) should cause patent re-assignment.
The current system (and all changes proposed so far) also fail to address the US constitutional mandate of causing progress. The current system doesn't.
I believe people game the patent system by trying to be as general as possible when creating patents.
I believe this stifles progress, I believe stifling progress is wrong, I believe stifling progress hurts us as a country in a time when we can not afford it.
What if a patent's definition changed over it's life time based upon what the company is actually using it for?
I think this would solve a couple problems.
1) It would force the company to actively invest in "idea's" that they own if they are actually makers and not scammers. (Yeah!!, progress continues)
2) It would open up the patent system to redefining the shelf life of patents.
We could call this new system "Shit or get off the pot!" patents.
So I say make the patent expiration period 30 months. This gives you substantial lead time, yet prevents issues like people fearing Apple's multitouch patents years after they've gotten the patent.
Plus it really takes patent trolls off the table, since these patents will have likely expired before they can get them. And it also takes off the table acquiring companies for IP.
For a competitor, it adds layers of unproductive expenditures (legal work), pressures competitors into piling up their own stock of patents as leverage, thus creating patents whose creative accomplishment is the application for an patent. It creates a legal mine-field of patents, more legal insecurities, making an industry unattractive to enter.
(software) patents mean more waste of money, less competition, less innovation and are turning a free-market into a oligarchy-game, where participation is impossible without being part of the big players.
But, they still suck less than the alternative, a world in which programmers are prevented from doing the right thing, innovation and start-ups require a willingness to dare a legal minefield blindfolded, big companies have unanswerable bludgeons against little companies, and unproductive trolls get to charge productive people for using ideas they couldn't comprehend, let alone create or use.
Tear it down. Replace it with nothing.
Simple and cost-effective. This would be far more efficient than having the uninformed at the patent office make decision from position of ignorance.
Edit: my point is that I am a bit surprised by a relatively long time HN member asking question about issue that seems pretty much to be settled down in this community.
This procedure puts the burden on the claimant, not on some random guy who happens to figure out an idea. It also does not require much work until there is an actual conflict.
I think that the principle of patents is okay. Invest time and money developing an idea, with a guarantee of exclusivity on executing on that idea in the marketplace for a period of time. It encourages a level of risk taking for "getting there first".
Software patents aren't any different in many respects because somebody has to go through the time and effort to actually come up with the idea.
The problem that software patents face is that, while many of the ideas are new and innovative to non-software people, software people tend to groan about seemingly obvious amalgamation of common software techniques into another idea. But really, most patents (non-software) are the same:
Cooking an egg with an electric heater http://www.google.com/patents?id=RgcEAAAAEBAJ&printsec=a...
Glasses for a chicken http://www.google.com/patents?id=M5BGAAAAEBAJ&printsec=a...
Making water hot with the sun http://www.google.com/patents?id=YBwrAAAAEBAJ&printsec=a...
Resoling a shoe http://www.google.com/patents?id=895CAAAAEBAJ&printsec=a...
Keeping paper dry http://www.google.com/patents?id=7IBqAAAAEBAJ&printsec=a...
That was 60 seconds of searching the patent database of common sense ideas. Clearly obviousness is not much of a threshold in patents, software or otherwise.
Perhaps a better way to think of software patents is not "obvious ideas" but "soon to be obvious ideas". In my experience, most software patents become blindingly obvious after the fact, but if they were so obvious beforehand, somebody would have:
a) implemented it into a working system (prior art)
b) patented it themselves first
Our principle problem is that the world of software moves breathtakingly fast, and keeping soon-to-be-obvious ideas locked away for a long time can seem ridiculous. But make no mistake, even implementing some obvious ideas can be the investment of millions of dollars in R&D.
For example, a system integrator I know of had an IR&D program that spent $130 million dollars just in the R&D phase for what amounts to off-the-shelf software, installed on a few VMs, on rackmounted servers, in a large plastic shippable box with a few perl scripts and cron jobs hacked together to shuttle data between the COTS software and an Oracle database running in one of the VMs. Obvious? Perhaps. But nobody had gone through the trouble to actually do it, and spending that kind of overhead was a significant risk.
Should they own this idea for the next decade or so? Probably not, but how about the next 12-24 months? At least long enough so that they get a head start against competitors who didn't get there first.
I do think the patent system is need of serious reform w/r to getting rid of patents with prior art. Fighting a bad patent can be more expensive than getting one in the first place. And software patents are too frequently granted in cases where there is obvious prior art, common algorithms for example.
If we really want to fight software patents of obvious ideas, or permutations of obvious ideas, perhaps somebody should write a tool that simply combine every obvious idea in software into some greater system, then documents it all thus creating prior art that stops all of these so called bad patents...and then patent the "prior art permuter". In other words, if the ideas are obvious, a piece of software that does this should be buildable. I call this the "obviousness of software patents theorem".
Patents are an artificial system forced upon us with the hope that they accelerate innovation. Just as you said, the hope there is that it encourages someone to take the risk of making something new with the hope of massive exclusive rewards.
The problem with that hope is that it ignores how innovation happens. There is no reclusive mad scientist working in some dank basement on the next-best-great-thing. That's childish.
Innovation happens through collaboration. You take someone else's work and you build upon it. Bit by bit, people build the next-best-thing.
The current patent system tries to take this into account by creating a lifespan of 20 years or so. But for those 20 years ... you are stifling the potential innovation that can happen by incorporating that new-best-thing into the next-best-thing.
This is even worse for software! A new paradigm arises (Internet, AJAX, Geolocation, etc.), a new set of algorithms become necessary to make things work. These paradigm shifts take years, not decades. As a consequence, innovation is limited to those who created the initial algorithms, since they're the only ones who can build on the most basic work.
Imagine Google created the algorithm/API for getting geolocation from the browser and built it into Chrome, then patented it. Nobody else would be able to do it. Obvious invention you say? Not as obvious as Amazon's one-click-to-buy button. The worst part in this example is simply that while Google may have invented it, there is an almost certain chance that Mozilla/Apple/Microsoft would have been able to make it better within weeks. We are missing out on that kind of innovation for patented software.
Today, Startup can sue, alleging patent violation, but most startups don't have the cash on hand for an extended patent battle anyways.
That's a very interesting point(s). Again, arguing from a devil's advocate POV. People who are generally against software patents commonly make the claim that it stifles the innovation of the single person, sitting in the their dank basement working on the next-best-great-thing (see other comments in this topic for examples, including a rather brilliant quote by Carmack).
In terms of collaboration, sure, patentable ideas/software often exist due to collaborative team efforts, just like patentable physical widgets like industrial egg fryers. But that team is generally paid for by one company and the patent is then assigned to that company.
There really appears to be a few major issues that I see with the present system:
1) Patents are transferable
2) Patents aren't researched enough against prior art before reward
3) Patent length is too long
4) Fighting bad patents is expensive and overly hard, even when armed with tons of prior art
5) Patents don't necessarily need an extant physical or implemented example to be granted.
6) Patents can be granted without the intention of implementation.
I think for real patent reform to work, these 6 points need to be addressed to keep the concept of patents (risk in exchange for exclusivity) a workable model:
1) Patents shouldn't be transferable -- this eliminates patent trolls
2) The Patent Office needs to be properly funded and given enough time to properly research patents before grant.
3) Patents (like copyright) needs to be shorter and dependent on the effort required to create the patent in the first place. For example, software patents should probably only survive 12-18 months. That gives the owner a risk/exclusivity that's long enough and if the idea proves valuable, opens it up for others to use (and improve the economy as a whole) within a reasonable time. In other words, this recognizes that risk doesn't just end at the grant of a patent. Actually doing something with the patent is important.
4) Appealing bad patents should be relatively simple and swift.
5) You should actually be able to demonstrate something that's patented.
6) If you don't use the patent in a business use-case, you lose it. A bit like Trademark.
Just some random ideas.
Suppose somebody invents a device but lacks the facilities to mass-produce them (building by hand is probably too expensive to make for a viable product). Rule (1) bars the inventor from selling the patent to somebody who has these facilities, so it appears necessary to arrange a licensing deal with a manufacturer (I expect selling a license to manufacture is still allowed and would count as a business use of the patent). How long does the inventor have to make such a deal before those who do have the right production facilities can simply ignore the patent and produce/sell the invention without compensating the inventor?
Licensing of a patent by the original assignee for specific use of for immediate manufacture makes sense to me.
It seems to be fairly common that somebody already did (a) but chose to forgo (b).
spent $130 million dollars just in the R&D phase for what amounts to…. Obvious? Perhaps. But nobody had gone through the trouble to actually do it, and spending that kind of overhead was a significant risk.
How much of that was it actually necessary to spend just to come up with the concept? Evaluation of the available COTS components, writing the perl scripts and cron jobs, management overhead, etc. are costs a competitor would have to incur as well, which makes them not part of the cost a patent is meant to compensate for. The fact that nobody had done it before does not necessarily mean nobody was clever enough -- just that nobody who was clever enough had had the problem this product was meant to solve, and being a solution to a novel problem does not make it patentably non-obvious.
In other words, if the ideas are obvious, a piece of software that does this should be buildable.
I don't think a computer program is likely to cover everything that would count as obvious.
"A person of ordinary skill is also a person of ordinary creativity, not an automaton." - SCOTUS opinion on KSR v. Teleflex
This is probably about as long as it would take for a competitor to write the necessary code and do the necessary testing anyway, so it seems that the reward of being first to market with good code is enough compensation for the risk involved.
I was thinking about a similar system, wherein hardware and software components are treated like building blocks. You throw some (or all) known blocks into a bag, and randomly draw n blocks and come up with a way they can be used together. You then start applying random domains to the same building blocks (e.g. security, gaming, manufacturing, automobiles) to prove that moving an existing invention to a new domain should be obvious.
I am really kind of sad that I'll be getting some for my new company; it's a waste of $100k, time, etc., but it is the prudent thing to do.
I'm curious though: what do people see as being the alternative?