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Poll: Do you support software patents?
429 points by robryan on May 16, 2011 | hide | past | web | favorite | 303 comments
Given the amount of recent (and ongoing) controversy about software patents it is interesting to see how the hacker news community, those who are generally doers, feel about them.
All software patents abolished
3417 points
For a much shorter period
349 points
Only when the company active makes use of them
157 points
Support current system with other changes
109 points
No new software patents
59 points
Support current system
24 points

I can't stand the idea that I might be at my computer, working with code, and develop something independently which later causes me to get sued. Abolish all software patents.

edited to add "software".

This John Carmack quote is relevant and shares your sentiments:

"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."


Except it's even worse than that: usually patent trolls haven't even written the code to solve the problem. Working code is not required to be granted a patent.

And not only you might accidentally break patents - you might not even be able to figure out if you break patents at all without paying a lawyer to translate the patent specifications. Maybe it's just because I'm no native english speaker, but I often don't get patent texts. Coding around patents is like walking blindfolded through a minefield.

I'm a native English speaker and I don't generally understand patent texts. In fact, I've filed quite a few patents and have always been amazed that I give something readable to a lawyer to write up and they turn it into something that I can't understand any more. The idea that a patent is the medium through which an author shares their invention with the world is rather perverse.

So I agree; coding around patents is difficult given that they tend to be so hard to read and understand.

I have seen quite a few people who have filed patents state that they don't understand their own patents and (as a general statement) I find this puzzling. A patent has 3 main sections (a) background and prior art (b) description of the invention and (c) the claims.

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?

Yet the only things that matters are the claims.

You have to understand, though, that legalese isn't English. It may look like English, and even work like English in ways, but its not English. Saying that legalese and English ought to be equivalent because they share words and syntax is like saying C++ and Java ought to be equivalent because they share keywords and syntax.

For patents in particular, though, a big part of the justification is that they constitute a disclosure of the invention to other practitioners in the field. It's a quid pro quo: we grant you a limited term of protection, in return for you divulging the details.

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.

English? Hah. I'm against the whole patent charade but if we're going to grant them, the inventors should be forced to disclose the entire goddamn source code, development infrastructure, and version control repository which proves that they've actually invented something and not just handwaved in the direction of an idea.

This is presently true, but shouldn't it be possible to define a legalese that can be parsed as English as well?

Yes, but the fact that it's impossible is considered a feature, not a bug, by those who use it -- it keeps the bastards employed.

That's one way to look at it.

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.

The argument for specific languages for programmers is stronger because programs are intended to be interpreted by machines. I would be perfectly happy with a legalese that is opaque to the layman if it could be fully parsed and implemented by a machine.

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.

I'm guilty too. I have some patents granted and I don't even know what it is about base on the description written by lawyers.

One could argue that you shouldn't code around patents in the first go round. Because if you demonstrate that you knew about the patent and then proceeded to infringe on it, you could be liable for 3X the amount.

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.

Yup. The quasi-official policy at some places I've worked is that engineers are not to browse the patent database, for exactly that reason.

Ironic, given one of the original primary reasons for the patent system.

I'm not sure if that really lowers your overall risk. Finding out afterward that you accidentally broke some patent which you could have avoided easily isn't necessarily better even if you don't have to pay treble damages.

And you get fined triple if you're looking for mines.

And they could file for the patent after you have done the work. You then have the hassle and expense of proving that your work came first and even then such cases often don't go the way they should.

I great example of the trouble someone had to go to prove they were first is the ABC computer. It's an important case if you consider that without John Atanasoff the personal computer would never have existed. At the time IBM and some other corp I can't remember the name held some important patent on memory and other things that would prevent anyone from creating a personal computer without paying IBM. Those patents which had come from the creators of ENIAC were later found to have been heavely (well in reality stolen) from the ABC computer. After years of battles, IBM lost the patents and right after that the PC came to be.

For a worse horror story, just take a look at Farnsworth trouble with RCA about the TV patents.

You could still lose that fight, even if your work came first, if you never published it or filed a patent for it. First to invent only holds if you reduced it to practice (either by actually inventing the thing, or boiling it down so someone reasonably skilled in the art could then invent it) within that year. You lose rights to it after that if someone else wants to patent it. There's also first to conceive stipulations. The intellectual property class I took last semester would have been a lot easier if the U.S. just went first to file (like basically everywhere else).

The US is trying to make that transition. The bill passed the Senate, and Committee in the House, and goes to a full House vote in June 2011. But it will likely be difficult for the two bills to match and be agreed upon because of all the other crap in the bill which has good stuff and bad (much like the overwrought SBIR reauthorization bill that can never seem to pass and it just extended ad infinitum). I like the "first to file" idea, but it puts the small inventor at a disadvantage. The main benefit is that it will hopefully lubricate university tech transfer offices. No more "oh I'll put in a disclosure and wait and see, I'm safe." it'll incentivize the inventors to file a provisional as soon as possible. But of you're building (or hacking) something in your garage you'd better get a patent attorney quick. And be patient, because response times on a first-to-file system will be horribly slow even compared to today's glacial system.

In theory that shouldn't be patentable. What John Carmack is describing is something that is obvious to a craftsperson in the field.

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.

> 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?

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?

There's a very nice counter argument to the objection of obviousness: if a given invention was obvious to the skilled man at the time of the application, and the invention is useful then why can't you find it in the prior art?

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.

A scalable proposal:

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.

Unfortunately, this doesn't work if there's any possibility that the engineer has seen the patent (not terribly likely in itself) or been influenced by it indirectly (much more likely: maybe she's talked to a friend who read a web page on the subject, written by someone who had a friend at the company that produced the patent).

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.])

> 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?

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.

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.

Either you're trolling, or you're unaware that there were close to 500,000 patent applications filed in 2009 alone[1]. Let's say you have 500 able critics; that puts us at 1,000 patents to review per officer per year. Let's assume any given officer can review an application within one week with reasonable efficacy; it'll take ~20 years to review one year's worth of applications (1000 / 50; I excluded two weeks for vacation).


Not trying to be an ass... But I would feel stupid if I didn't correct you. I'm sure it was just a typo though.

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 obvious rhetorical question here is: Who seriously believes that there have been 500,000 inventions worthy of being patented in 2009?

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.

Can you imagine there is one new invention that pertains to your job each year? Now consider the number of different jobs there are. Now consider the vast number of other activities outside of work.

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.

Your position is not consistent or just poorly thought out, and poorly researched. Or maybe I'm just a troll.

> 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.

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.

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.

Regardless of whether or not it is feasible to have 6,000 patent examiners perform this process, it still seems remarkably subjective: a given patent examiner, with all of his/her individual strengths, weaknesses, imperfections and idiosyncrasies, determines if s/he alone can solve the proposed problem and, if not, essentially says, "Aw shucks, this is patentable!"

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.

If subjectiveness in judging is your concern, I think there are bigger fish to fry than patents.

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.

You guys are funny.

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.

> So you seem to be saying that having a system where examiners approve patents they don't understand is preferred.

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...

All the people who are saying evaluating obviousness of an invention is impractically hard to analyze, are failing to see that that applies to non-software patents as well.

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 at my computer, working with code, and develop something independently which later causes me to get sued. Abolish all patents.

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.

You're missing a critical difference. Patents are supposed to be "unobvious". A normal person just working in their shop should not just accidentally stumble across a patented thing, because by definition the patented thing should not be obvious to one skilled in the art.

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.

the patented thing should not be obvious to one skilled in the art

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.

And those things aren't supposed to be patentable. How you get from "not supposed to be patentable" to "does not exist" is beyond me.

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?

Calculus and RSA -- two things that I think most of us would agree are "non-obvious" and were invented independently.. and may I add that the documented independent inventions were generally with a few years of each other? The evidence suggests that despite modern romantic notions of creative inspiration springing from individual genius, invention usually owes a lot to societal need and the current intellectual milieu.

That's stretching it a bit. Just because more than one person hits upon something doesn't mean it's obvious; and as we know, it's much easier to understand a working instance of something than to discover/invent it.

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.

I'm not sure what you mean. Did you really intend to reply to me?

> You're missing a critical difference. Patents are supposed to be "unobvious". A normal person just working in their shop should not just accidentally stumble across a patented thing, because by definition the patented thing should not be obvious to one skilled in the art.

"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.

" 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."

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.


The problem is that we are on a slippery-slope either way you cut it.

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.

You'd have to ask the people in the corresponding industries what they think about it. Patents might not have the same effects in other industries. We have on hacker news obviously mostly experiences with software-patents. From what I've read similar patent discussions are indeed also happening in other industries like in pharmaceutical research as advancements there also often blocked by patents, which is just the opposite of what was the original reason for the patent system.

Yes, patents infringe on people's rights, to foster innovation. Getting to patent something isn't a right, it's a privilege. As you've illustrated, all patents are inherently undesirable--at least for certain parties. And I agree. They should be abolished.

That is precisely what they don't do. All they do is stop someone else from claiming it as an innovation with the associated IP rights. There is nothing to stop someone innovating like a fiend. But surely it is blindingly obvious that copying something someone has already patented is not innovating. Everything else however is fair game. Knock yourself out and innovate.

One well documented problem here is 'hindsight effect.' After something has been invented and has been used for even a short while it becomes 'obvious.' This effect is so powerful that it is in fact difficult for attorneys representing patent holders where patents are being challenged for being 'obvious' to defend the case because juries now find what was non-obvious at the time to now be obvious. Studies show that this is not only potent but pervasive - being smart and well educated does not mean one can rewind time any better than the next person. It is hard to recapture that innocent state before the innovation.

How about the idea that you spend months and hundreds of thousands of dollars of your own money to come up with a new product, and two weeks after you launch, another company with a lot of money releases a copycat of your product?

If you abolish all patents you leave two options for inventors [some patents truly are ingenious]:

- 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.

You know, I heard PG argue this in his software patent article, and I don't buy it. In the end, necessity is the mother of invention. Software engineers invent things because they need them. They would not, by default, either try to keep it as a secret or patent it.

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.

I very much favor the trade secret option, at least for software.

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.

Trade secret actually isn't a bad option, if you patent truly had legs then your secret is probably going to be safe for a fair amount of time. If your patent is getting people on a technicality and really isn't very innovative then your secret won't be much of a secret.

The argument against trade secrets is that they hurt innovation by impeding the flow of information. Patents allow a company to publish their innovations without fear of someone coming along and simply stealing it. By allowing inventors to publish their information with little competitive disadvantage, we enable other inventors to build on their predecessors efforts.

That's not how software patents work in practice. They are written to be as broad and non-specific as possible, because their purpose is to be legal weapons. They are not about spreading innovation; competition, in functioning markets, is sufficient for that.

I think patents can be (and have been) distorted to be used as weapons, but their real purpose is to help innovation as I described.

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.

The purpose of a patent system and the purposes of people using a patent system are two different things. The first one might motivate lawmakers; but it is the second one that actually matters.

Do you honestly believe there is such a problem with sharing innovation in the software industry, that we need government intervention to encourage sharing?

The current state of patent disclosure is such that your arguement makes little sense. Virtually nothing in software patent disclosures informs people about "how to do it". Almost all of the disclosures are vague and unspecific. If you, as a programmer, hear the title of a patent, you basically know how to do it.

Yeah, with Google search patents, they have been published years after the system was developed and is probably much evolved by now. Looking at the text in them, they only provide very vague guidelines to say SEO's try to learn more how how ranking works.

The better argument for software is that secrecy doesn't work.

Complexity does -- SaaS is very hard to reverse engineer.

your first point wrongfully assumes that the patent system is the dominant mechanism for spreading inventions. it may have been intended to work this way, but this is not how it works in real life.

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.

I call B.S.

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.

Trade secrets are less secret than patents, because outside engineers don't carefully avoid reading trade secrets.

Also, hardly any secret can be kept for as long as a patent lasts.

Sorry to all, I specifically meant software patents. Hardware patents are different as they often rely on physical creation of objects and a non-trivial investment in materials/development.

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.

No, there is no difference. If you're going to claim that they're different because one may require a "non-trivial investment (1)" then you have to specify that hardware patents that only require a trivial investment are similarly invalid.

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.

Software is a mathematical equation. Math isn't patentable.

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.

I'm fairly sceptical towards software patents but I'd argue that the math argument is a red herring. Software is clearly not math in the sense that the people who wrote that word into the law understands math. And as someone else pointed out: If this argument gets any traction, and if the powers that be want patentable software, they're going to clarify the language, not get into semantics over what people who couldn't in their wildest dreams imagine computers might have thought. It just a law and laws change all the time.

A fair point. I concede that may be true.

Any system with known, fully-specified constraints is "math". That's the only definition of "math" that actually covers all the things mathematicians do. Algebra/calculus, set/group theory, logic (various forms), graph theory, and such are all undisputed branches of "mathematics". I defy anyone to come up with a definition of "mathematics" that includes things like the above, but does not include computing. (And no cheating: simply listing existing branches of mathematics is not persuasive.)

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.

I don't agree. And algorithm is not the same thing as an equation, and I don't think your argument would stand up in court. If it were that simple to overturn software patents it would have happened years ago.

How about this:

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.

Sounds great, but the other side is just going to raise Godel's incompleteness theorem in the form of the church-Turing thesis to show that the truth of your argument is formally undecidable ;-)

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.

"I don't agree."

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.

I articulated my reasoning in the following sentence.

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.

"Your argument requires universal incompetence by litigators and/or decision-makers."

Incompetent and or comprimised. Yes.

So basically you think the entire patent system is a giant conspiracy?

No. Cooperation between individual entities is not required. All that is required is that a certain critical mass of the people involved be too incompetant to understand the math, too corrupt to care, or just malicious.

Seeing as we're talking about lawyers and politicians here, I don't think this is all to stunning.

Ah, if you're talking about politicians that's a completely different issue - then you have a good point, because changing the law requires getting a majority of legislators to vote in favor of reform. I'm talking strictly about litigation.

Software is an application of mathematical equations perhaps, but then hardware is an application of material properties and other laws of physics. Since material properties and laws of physics can't be patented, you're presumably against hardware patents as well?

The capability of modelling a physical system with math does not mean that physical systems are math.

On the other hand, the numerous proofs that software is math are fairly trivial for anyone with a modest background in mathematics.

> The capability of modelling a physical system with math does not mean that physical systems are math.

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.

Physical devices (even models thereof) are applications of physics equations, not physics equations themselves. These have been ruled time and again as being patentable.

Algorithms are mathematical equations. They cannot be patented.

Software = math, math can't be patented, therefore software can't 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).

Since we can mathematically demonstrate software to be math, let's take that off the table. Arguing that part is idiotic.

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.

Then perhaps the issue isn't that software isn't math, but that the statement "math can't be patented" was simply one made in ignorance and not reflective of the underlying spirit of the law?

Hardware is about particular values, not the equations. Software tends to be more about a transformational equation, but not in all aspects.

It takes significantly less effort to create a piece of hardware from scratch if you have a reference design to crib from.

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.

It takes significantly less effort to create a piece of hardware from scratch if you have a reference design to crib from.

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.

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're saying all software ideas can be thought of and implemented in a few minutes? That is both absurd, and an insult to the innovation that happens in software.

You have 10 minutes, give me an implementation of something that improves upon H.264 by 30%.

That's not how it works. If you're familiar with the area, you might come up with an idea that improves it by 3%. If you have 9 of those ideas, you might get a 30% improvement. Where the ideas come from is serendipity combined with fertile ground.

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.

You have 10 years. Write me a patent for something that improves upon H.264 by 30%.

Your reductio ad absurdum does not accurately represent what I'm saying. I'm saying that you could possibly make software in a few minutes that could violate a patent. This is extremely unlikely with hardware of significant complexity to earn a patent.

I don't think I understand your argument. You said this:

> 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.

There's too much room for error, if you let there be a line between what is and isn't patentable with respect to software. Better to leave it open and let the cards fall where they may. Software patents actively restrict technological development.

Why is it better to leave it open?

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).

Ultimately it would be better because it would eliminate patent trolling and foster software innovation. Right now a lot of innovation is hamstrung by software patents. I don't think any company should have the right to enforce what software someone makes, at all, ever.

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 voted for the "abolish all" option despite the fact I'm actually in favor of patents in general and don't think software should be distinct from hardware, but the situation has gotten ridiculous (as has the situation with patents in general).

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.

>"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...

There are many flaws here. While a digital (or discrete) space (or realm of infinite possibilities as you put it) has a limited size as a function of the allowed length,

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.

Me neither. But what about the opposite case - you work on something for a long time, and then make a breakthrough. Genius! You apply your breakthrough to do something awesome and release it out into the world. Someone else notes, it, reverse engineers it, and has a better marketing operation than you so they make $$$ and you get nothing. without patents, how do you protect your genuinely original work?

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.

Please don't mix up copyright and patents. I'm pretty sure if this poll would be about copyrights you would find out that a lot more people here do in fact like the copyright system. Copyright prevents stealing code, everyone who does copy code knows he is doing that. But you have basically no chance knowing when you break patents until someone does sue you or by having patent-lawyers which go over all your code all the time and look for potential trouble.

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!).

Are you able to tell/estimate what's the proportion of software patent cases that will bring profit to the people who actually did the work? And how many cases were initiated by those people because they felt at risk.

That's more research than I want to do for free on a Monday morning, and one might ask the same question about patents in general. The current system is broken, but simply abolishing it is to throw the baby out with the bathwater. There's a reason the patent and copyright systems exist in the first place, and simple abolition would just exchange new problems for old.

Fixing your problem would only need the current system to be modified such that independent invention is not infringing. One way, for example, is to make it permissible for independent invention to be considered evidence that the patent is obvious to those skilled in the art and thus not patentable. A patent already granted would be repealed under these circumstances.

Would you still be in favour of abolishment, and if so why?

How would you prove an "independent" invention was really developed independently of the patent? You can't prove that someone didn't read something.

IMO a reasonable test is: If a patent can be used to sue one company it may be patentable. If it can be used to sue 100 companies working on separate products it's probably obvious.

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.

That is clearly not a reasonable test. In fact it is almost certainly a great test for someone having innovated in a valuable way. If you file a worthless patent then no-one will be interested in your innovation and there will be no-one to sue. If however you file something valuable you would expect to potentially have lots of people to sue. In your example the question arises, why have so many people trespassed on this patent? We know they have an incentive - it is valuable. But why in this hypothetical case did they trespass? Did they think the patent was breakable? the patent holder weak? the market opportunity so great that they would build now pay later? Perhaps they didn't find the patent? So many questions. But as a cursory study of hindsight bias will make plain it is extremely common for something that is not at all obvious at the time of its invention of appear so later.


The "first to invent" system already in US patent law already faces the same issue, so if it can be done there it then can be done here.

There's a money incentive at work for each patent submission.

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.

There are many ideas that I can't stand. Fortunately I weigh them against their likelihood and find that reassuring. I suggest you do likewise. The probability that in your noodling you will develop something non-obvious and worthy of intellectual protection and will nonetheless continue obliviously developing it, without the slightest idea there may be protected prior art is vanishingly small. Consequently your paranoid intuition that we should abolish all software patents may be laid to rest. There may well be good reasons to investigate the patent system. IMHO this is not one of them. Hope this helps.

I apologize in advance for being short with this question, but what do you consider a "software patent?"

devils advocate: What if you independently came up with tablet like device and called it an 'iPad'

That's not a patent question.

No, but it is a intellectual property question. My point was that if you violate a trademark even though you independently came up with it, the same would apply for patents.

Being able to recognize a brand is necessary for the market to function. It is how you know what you are buying, and what you base trust on. At the same time, the cost of coming up with a different name for your competing product is trivial.

So while, yes "the same applies", the cost/benefit ratio of the two situations is totally different.

Well, true... up to a point. But the motivations behind patent law are so different from those behind trademark law that I'm not sure it's a relevant comparison.

And one of the tests in trademark law is if a reasonable person would be confused between the original and the imposter. So you only have to have 'reasonable' knowledge of other brands in your industry.

I think the actual test is if the intended audience would get confused between the original and the imposter (see the H. R. Pufnstuf v. McDonald's case, although that's copyright, not trademark).

> that's copyright, not trademark


In that case, it's easy to change a name, then continue selling your product. Not if (some part) of your product is patented.

In principle, they could give a lone programmer or small company that invents something awesome the edge needed to break in to a market dominated by large companies. I consider this to be desirable.

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.

The biggest problem here is the transaction costs. If the costs to get and enforce patents were much much lower (time, money, opportunity cost), then patents would be really good. Only the large corporations have enough cash to enforce patents successfully.

I'm not sure that's the case. I think if patents were cheaper to get and enforce, people would patent more trivial things and sue each other far more often. Look at copyright enforcement as practices by the RIAA and Righthaven.

What really needs to be cheaper and easier is getting invalid patents overturned.

While I agree that the second case is often the norm, I do have one counter-example -- I used to work for Riverbed Technology, a 9 year old company which does WAN optimization and competes against Cisco and Bluecoat, among others. Riverbed is (or was?) generally regarded as the tech leader in the market and its head start is based on a patented compression scheme. There's no question that the patent is a big part of what allowed the company to survive the entrance of 800-lb gorillas into the market and I'm fairly certain that if software patents were abolished today, that algorithm would be in Cisco's WAN solution tomorrow.

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.

....and I would say that if Riverbed didn't provide the equivalent support (lol) as Cisco or didn't have the complete integration solutions that Cisco offers, then Cisco SHOULD win out. If you innovate and you're actually better, then you should win. If not, you should go out of business.

Isn't this what "free market" is all about? You can't have both.

The problem that patents are supposed to be solving is incentivising innovatoion by allowing them to profit from their innovation. The pro-patent argument would be that without patents riverbed would have been less likely to innovate in the first place and the world would have been less well off.

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.

...and that's why I'm a bit of a socialist ;) Textbook free market theories make a lot of idealistic assumptions that just aren't true in the real world. The best product doesn't always win, particularly when your competitor sees easier routes to gaining an advantage than the slow, expensive work of improving its own product via investment in its own R&D.

Governments stifle competition and promote monopolies. Don't believe what they tell you.

Governments aren't conscious. Politicans have been convinced to support policys that help large corporations. Whether the politicans do this knowingly in return for campaign donations, or unknowingly because lobbyists convinced them that the patent system is a good idea, is unclear.

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.

I think the worst practical thing about software patents is that they create uncertainty. If there is one thing that is universally abhorred in the business world, it is uncertainty.

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.

That wouldn't stop someone from patenting something that someone else determined was unpatented and then went after them for infringement.

Unless that constitutes a clear-cut case of prior art in whatever system you have, I don't think the system qualifies as "fast, cheap, reliable".

My vote would be "Yes, if the Patent office approved only real innovative things". For example if I come up with some revolutionary face recognition technology, that seems novel enough to be patented. But if I just make a form with a submit button (Google's Patented home page), or Amazon's one click purchasing those are just ridiculous as a patents.

Given how poorly the USPTO has performed thus far, it seems impossible that this could be correctly implemented. Better to err on the side of openness, and abolish them altogether.

It's obvious that there are enormous swathes of innovation in the IT world that either happened or would have happened without patents. Amazon would probably not have thought twice about developing one-click checkout if it hadn't been patentable and it seems perfectly plausible that RIM got the idea for the BlackBerry independently of that troll that sued them.

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?

Yes, the "invent a cool codec / protocol, live on the royalties" business model would be difficult without patents.

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.

I hate this approach to governance. How can we ever hope to run a competent democracy when the citizens of that democracy assume that government can't be improved?

On what do you base the assumption that it is possible for us, or anyone, to run a competent democracy? There's no historical precedent for it; in fact quite the opposite.

Theoretically, it's possible, but in theory communism would work if everyone just did their best to make it work. Reality is different.

Well there are degrees of dysfunction. Compare, for example, the healthcare system of Western European countries to that of the US. I realize this is a charged issue where people have different ideas of how it should work, but for a certain set of goals (maximum coverage, minimum cost), Europe generally does much better than the US. Other things (diversity, productivity, entrepreneurship, I would argue) are done better in the US.

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.)

In general, I agree with you, but in this specific instance I think that software patents are more trouble than they're worth.

If google really has a patent on that home page, I'd suspect it is a design patent, which is an entirely different kind of beast. It's more like trademark rights.

I don't know the differences but here is the Patent http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec...

The patent number starting with a D indicates a design patent.

Its a slippery slope. Who gets to define what is ridiculous? You can say 'the courts', but one judge may differ from another and therein lies a deeper issue.

Please everybody, don't go reddit with the comment voting.

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.

With this type of support for abolishing software patents from the people who write the software; it seems we must be able to organize some sort of strike to just put an end to it immediately.

Let the Programing Proletariat unite :).

You can't because programmers aren't in control of themselves. The ones who have enough cash and power are more than willing to continue with the present system or they cash out and leave someone else to do the work of opposing it.

You could make the same argument for any strike though, and many of them have been successful.

I see no reason why an invention should be unpatentable simply because it involves software.

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.

This intrigues me, because fundamentally I see software as a form of mathematics. Given that mathematical equations aren't patentable, I don't believe that software should be either. Moreover, it seems that we already have many things in software preventing people from copying code wholesale (SaaS, the fundamental difficulty in reverse engineering compiled binaries). As a professional cryptographer/mathematician, how do you feel about the relation between mathematics and software?

I think there's a big difference between a process and the underlying mathematics which explains why the process works. The matrix factorization which underlies the FFT was known long before Cooley and Tukey came along, but they were the first people to say "hey, this allows us to compute the DFT in O(N log N) time".

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.

Interesting: so would you consider the DFT patentable? How about other numerical algorithms? Would you agree with the decision in http://en.wikipedia.org/wiki/Gottschalk_v._Benson?

Obviously the DFT is not patentable any more, but yes, I see no reason why Cooley and Tukey shouldn't have been able to patent it.

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.)

Very interesting: you make a good point about hardware. If I were to take my interpretation of software being unpatentable to the absolute extreme, I would say that the microcode in modern CISCy CPUs would also be unpatentable. This could lead to an interpretation where CPUs are also not patentable.

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 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

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).

Devil's advocate here: business logic is often significantly incorporated into software. Much of this logic could be implemented on other platforms such as manual labor etc. But can't all of it be boiled down in the end as mathematics? Should we extend that assertion that far with regards to this argument?

>"I see no reason why an invention should be unpatentable simply because it involves software."

Are you a software developer? Do you understand that often times, there is only a few logical ways of doing something?

cperciva is the creator of the Tarsnap backup service. So yes, he is very much a software developer. For future reference since you're new here, I suggest clicking on the username above a post to investigate a person's identity.

Often the important part of an invention isn't figuring out how solve a problem; it's figuring out what the problem is in the first place.

Yes, I'm quite aware that some problems only have a few feasible solutions.

I said abolish, but really I think we could have a workable solution by either giving the PTO the funding it needs to do a good job, or eliminating the presumption of validity. The big problem we have now is that the law assumes that all patents are properly examined when the PTO doesn't have the resources to do a proper examination.

Since this is specific to software patents, my vote was to abolish them all. Patents on Software make not sense (other protections like Copyright, are essential, though). I have yet to see one "invention" that would not have seen the light of day without software patents.

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).

One of the founders interviewed in Founders at Work mentioned something about this... I believe it was Woz.

I'm working at the moment, so can't refer to the book; if anyone else has it handy, please supply said quote. :D

I have a hard time with this topic. Of course the only thing that ever gets covered in main-stream tech media is the abuse by patent trolls suing Company X because they are using their "electronic key-input device" patent to type on their computers.

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.

The problem with this approach is that the most offensive and problematic software patents are those which are trivial to implement.

> 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?

Not really.

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.)

I think you need to produce the mechanical process you are patenting and at least show it is viable before patenting it?

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.

Where do you draw the line between a "software patent" and a hardware one? Doesn't make sense to make a distinction based on the method of implementation (especially given that lots of HW is micro-programmable).

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.

We who invent things, we who solve problems in new ways, don't do so because we can get a patent. We solve the problem because when you put a problem in front of us, we can't stop ourselves from solving it. It haunts us. We dream about it. And the only way to make it go away is to solve it. That's the nature of Engineers, the nature of Inventors. Engineers don't think about patents when presented with a problem, they think about solutions. Lawyers think about patents and they don't invent anything.

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.

Stephan Kinsella makes a pretty compelling argument that's hard to refute: http://blog.mises.org/11717/against-intellectual-property-au...

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.

I owned and managed a small software development company for nearly 25 years. We produced many creative educational and consumer products for large publishers. We had neither time nor money to research every innovative routine we developed for possible infringement. Nor did we have money to apply for patents or defend them if they were granted.

As we've seen, software patents stifle creativity and innovation; reward those with money rather than creative energy and ideas.

This is one of those issues that I feel is more a member of tribal affiliation than anything substantive. It's like flag burning for us Republicans: if I were to rank order my political objectives, "prevent flag burning" would be somewhere in the x0,000s, but the tribe cares about this a lot for philosophical reasons (which I'm broadly speaking on board with) and as a result uses it as a signaling mechanism.

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.

Couldn't disagree more. Sure, as a society of wanna-be/successful code entrepreneurs, we are more likely to be affected by this issue. But that doesn't mean the issue isn't substantive. It is more accurate to say that the majority of people outside of our "tribe" are simply unaware of patents and the type of burden it places on innovative thinking. Your argument essentially points to software patents being a non-issue. If that were true, we wouldn't be seeing well written websites taken down or extorted through the patent system.

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.

Your discussion of "Tribe Signalling" is interesting. It reminds me of all the stuff that Desmond Morris was talking about in "the Human Animal" (and more recently http://www.exactitudes.com/). By wearing certain clothes you're sending a signal to others about political POV, likes dislikes, interests etc... It helps you find other like minded individuals.

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?"

Predictability of hackers' opposition to software patents doesn't render that opposition inconsequential or irrelevant (unlike a vampire fan's opinion of vampires).

I can think of at least two pragmatic, immediate reasons the patent system needs to be addressed: -The HTML5 video codec wars and the rise of patent pool companies like the MPEG-LA (which, besides licensing H.264, is reportedly forming a patent license pool for VP8 entirely independently from Google) -Relatedly, the patent pools forming around next-gen communication protocols like LTE, a 3G successor

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.

Is that because you think the problem crops up so rarely, or because you think the problem is very minor in general? Do you think you would feel differently if you were sued for gazillions of dollars for violating a patent on, say, using computers to create games for use in schools?

This is not a "signaling" issue, it is hugely important. One of the few industries that has been generating tons of innovation and jobs over the last 20 years is under constant attack from stupid patents, but you think that is less important than banning flag burning?

Agreed; I think that bit was more about tribal counter-signaling signaling than anything substantive.

Until someone sues you for patent infringement. You have enough opensource stuff out there they wouldn't even need to look hard for it.

The economic harm of the uncertainty created by the patent system is way greater than the harm done by the cases that make it into the 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).

I support complete abolishment of the entire patent system, not just software patents. I believe that - in practice - patents do more to inhibit innovation than to encourage it, and I also find the idea that the government will use force to prevent you from using an idea - that you may have developed independently - to be immoral.

Imagine a Book of Code, like Knuth's Art of Programming, but easier to search and understand.

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.

Traditional patents are like creating new tools for a carpenter to use.

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."

I'm surprised things like business process patents aren't more widely supported. Especially in the software industry, it's pretty obvious that most applications are the result of somebody developing (or at least, think their developing) a better method for accomplishing an existing task. Correct me if I'm wrong, but don't business process patents enable similar ideas organized differently to equally receive patents? It's truly difficult to lean either way (however, I did vote for the abolishment of all patents). If you're a successful business who is challenged for your innovation, the only protection you really have is a patent. If anything, I feel like those in the software industry should form some sort of agreement and petition the government to enact new rules specifically for this industry. As technology evolves, I shudder at the thought of how the archaic system we have now will all but crumble. There should be a lot more future-proofing taking place.

My take on this is: Abolish all patents (not only software).

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.

Copyright and trademark law are sufficient to protect coders. Software patents are absurd. It's analogous in my mind to allowing Stephen King to patent a certain kind of plot twist.

I buy the argument that software is math and thus unpatentable. My experience has also been that most software patents (and especially always the most notorious) are trivial applications of an algorithm to some subject area.

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.

I've spent the last few years working on a new approach to developing software. I've spent a lot of my own money (at least $40,000 USD) on research to perfect it. Currently, from the research I've done, I've found no prior art.

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?

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).

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.

Lawyers do sometimes mess up on dates. I hate to trot this story out yet again, but MIT did get sued because of my dorm's laundry webserver. A webserver which had been Slashdoted before the company applied for its patent.

Of course, they did back down once the facts were explained to them so you're right at least that far.

I would hope it would be easy to show prior art, but stuff like this (http://m.theregister.co.uk/2011/04/21/texas_jury_says_google...) is where it becomes "hard" to prove prior art. Because you have to prove it against a jury of, generally, non-technical people. Here is the primary claim:

* 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

If you just release it, it becomes prior art. And if you're not selling licenses, there's nothing to sue you over.

Germany had a flourishing chemical industry in the 19th century. You couldn't patent chemical compounds, being things of god and nature, but you could patent the process. This created the perfect environment for competition and innovation. England, by contrast, did allow patents on chemical compounds, and by contrast their chemical industry was weak.

Switzerland continued in the German tradition until recent years, and had a flourishing pharmaceutical industry, despite the lack of patents.

More: http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...

There's one simple phrase I like to keep in mind when thinking about software patents. Its mere existence demonstrates that patents are not serving their intended purpose: "accidental patent infringement"

All patents abolished. Ideas are worthless once executed and it's ludicrous to own even someone else's idea even before it exists, if it so happens to be covered by your patent.

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.

I think, if continued to be allowed, software patents should expire 2-3 years after being issued. We no longer live in a time where it takes decades to invent new software technologies, requiring a patent to protect the inventor for years/decades to recover their investment costs. Software and technology moves so quickly that long-term patents stifle innovation and creativity.

Bluntly, it's this:

Patents are designed to encourage and accelerate creativity and innovation, today they do exactly the opposite. They should go away.

It is interesting that this poll does not mention the problem that I most care about: that the bar for "obviousness" seems to be way too low for software patents. It is so low that I actually worry in my every day work that I will accidentally violate patents simply by solving simple every day problems in obvious ways.

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.

My position on the matter is that patenting software or other mathematics should require full disclosure of the source for the system. If not expressible in a full-blown language, it's not patentable (e.g., one click).

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.

What is ment by software pattent ? Patenting a method used in software ?

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.

Intellectual property is a curious intersection of capitalism and socialism: a free market which would barely exist without the creation of artificial legal constructs.

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.

Why aren't more software patterns patented? For example, the Observer pattern, Model View Controller, Active Record, etc.? These are patterns that pop up naturally while coding that seem on par with the 'in app purchase' pattern (if I can call it that). Why haven't the trolls patented more of our building blocks?

They are all patented, you just have not seen the relevant patents (or if you had seen them you would not be able to understand them).

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).

(I'm for abolishing all software patents.) The justification for patent protection is that is required to encourage innovation in the arts or some such. In reality, innovation in software is happening in spite of patents. Consequently, there is no justification for for granting this harmful monopoly.

The closer you get to the ideal situation with software IP law the closer you get to copyright style and the further away you get from patents. Software patents could work. It would just mean applying them more sparingly. You can patent the specific crank you've created, but not the whole idea of rotation.

Patents are not needed to promote innovation -- their intended benefit for the greater good. Innovation will happen anyway. Instead, they are a drag on innovation and also a tool for those with larger pockets to extort from those who cannot afford to fight back. Get rid of them. We will all be better off!

No. Abolish all software patents, limit all other forms and liberate knowledge towards the evolution of humanity.

I wrote a article about software patents a few years ago: http://paulbiggar.com/research/article.txt.

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 utterly detest software patents and the inaccurate view of innovation they embody. In theory, software patents should encourage innovation. In practice, it looks like they hinder it, and instead enable a legalized form of extortion and parasitism.

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!

My understanding is that, at least in the UK, patents are a contract between the inventor and the state. The state grants you a monopoly and in exchange you tell the state how it works. The state has the right to seize your invention (after offering you some compensation). My first patent was held up by the UK government for nearly 2 years whilst they worked out if they wanted it !

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 would love to see all software patents abolished.

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.

I support abolishing all patents, not just software.

The current system, and all of the rather draconian suggestions for change, ignore the issue of independent invention. The only study done on this so far (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270160) suggests that almost all infringement is due to independent invention.

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.

Maybe we just need to change the patent system itself.

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.

Just wanted to plug the FSF's documentary "Patent Absurdity: how software patents broke the system" -- actually watched it this past Friday. It's only half an hour long:


I think the software field is so fast moving that the current time period for a patent is not justifiable. But I do think that someone who invents something should be able to get some advantage out of it, rather than having a Google just waiting to take the invention and make it big.

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.

I can't get rid of the feeling that (software) patents are just a means of driving out competition.

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.

No patents would suck a few ways - new ideas might well end up being locked in obfuscated machine code or sealed in ROM until someone puts in the effort of disassembling them and teasing out the algorithm.

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.

I would prefer a world without software patents. If that is not possible, * At least the courts should charge exponentially high prices for each extra claim you want to make beyond a limit. * All publicly listed companies will have a cap on total number of patents they can apply for (probably proportional to R&D spending) after which the price increases exponentially. * Any person or institution found patent trolling should find further litigation exponentially expensive. All these and more measures won't solve the problem... but at least increases the threshold for trolling behaviour...

The patent office should charge some amount with every software patent application to be used for the determination of obviousness or prior art. Then it should post the problems on sites such as this one or StackOverflow as a request for comments. In addition to that, it should post the problem on a rent-a-coder type site. If any of these produced a result reasonably close to what is being claimed the application is rejected.

Simple and cost-effective. This would be far more efficient than having the uninformed at the patent office make decision from position of ignorance.

I don't think that software patents are 'controversial' among HN community - I remember reading comments to some threads about patents and they were pretty much like the results of this poll - ie. the vast majority of people expressed opinion that software patents should be abolished and virtually noone supported current system. (Also this was before post karma was hidden, which made attitudes even clearer.)

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.

There is another problem with software patents that is usually not talked about: they don't present how to build it. Most patents (outside of software patents) present enough information for a competent person to build the device (or whatever) themselves. The idea is that your idea is protected for the duration of the patent, then when it's over everyone else gets it for free. Software patents usually don't do this. I cannot implement, for example, Amazon's "Tabbed browsing" from the description in the patent. I still have to do the hard work myself.

I believe that we should issue something much simpler than patents: file a very brief description of your invention which is stamped by a trusted agency. It is only evaluated in the case of conflict. That is, if you think I am infringing, you bring it to court, present your originality paper (which dates your idea) and then you have to prove that it is not obvious and that it is useful.

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.

At risk of taking an unpopular devils-advocate position:

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".

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".

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.

What if a startup spends ~2 years coming up with an idea, launches it, and gets noticed by a Big Company before the site gets big. What's to stop the Big Company from just implementing the idea themselves in a slightly different form? Would the Big Company still buy the startup/how will the startup be compensated for its work?

I'm not sure that's much different than the state of things today. The status quo version of your scenario is that startup has an idea, patents it, spends 2 years implementing it then launches. Today, even before startup launches, Big Company can see the patent, build a similar system that's just different enough to not violate the patent.

Today, Startup can sue, alleging patent violation, but most startups don't have the cash on hand for an extended patent battle anyways.

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.

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.

1) Patents shouldn't be transferable -- this eliminates patent trolls

6) If you don't use the patent in a business use-case, you lose it. A bit like Trademark.

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?

That's correct for patents in general - but I don't really think it's valid for software. Software is a lot more like book writing than like manufacturing. You can generally just do it once you manage to finance yourself for a while. Once you have really thought through all the details you are usually finished with the work.

Excellent questions. I have no idea, just positing some ideas for reform that differ from the impracticable (and not going to happen) abolition.

Licensing of a patent by the original assignee for specific use of for immediate manufacture makes sense to me.

if they were so obvious beforehand, somebody would have:

a) implemented it into a working system (prior art)

b) patented it themselves first

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

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.

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.

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".

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.

http://www.betanews.com/joewilco... I would recommend this piece for those who wish to see the problems that a small innovative company can have even with patent protection. Without such protection they would have been left with nothing - copied wilfully by Microsoft and competitively dominated, all their investments down the rain. At least this way they prevailed in the courts and will have some recompense for the damage done to their innovative business.

I support software patents, but the USPTO needs to make some drastic changes in what is considered "novel". Way, way, way too much of what is patented is, pardon the pun, patently obvious.

It clear that the overwhelming majority of people here think software shouldn't be patentable. The next question is what to do about it? How can we get software patents out of patent law?

I am against patents in general, and especially against software patents. I wasted a lot of time from ~1990 to ~2000 with RSA alternatives, and then there was the whole Chaum and Brands patent mess which was another bottleneck for anonymous cryptographic token electronic cash (think bitcoin but anonymous, and even better).

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 got a patent for some of the stuff that went into Word Lens (augmented reality translator). I think software patents are awful, but I feel like I need to play the game that's currently in place. A significant part of our company's startup costs and time went into getting that patent. If I could, I'd pay all that and more to eliminate software patents completely - including my own. Software patents kill innovation.

New Zealand banned software patents a couple of years ago I believe, and from what I see from friends there they have have a thriving software industry.

I'm somewhat surprised that the vast majority of people here are against all software patents. I agree that many software patents are absurd, but I think of things like H.264 and MPEG where true innovation was required on the part of the people who developed it, and it seems clear to me that those people have a right to patent that work.

I'm curious though: what do people see as being the alternative?

Since no one seems to have mentioned it yet: Against Intellectual Monopoly (http://levine.sscnet.ucla.edu/papers/anew.all.pdf)

I have read the piece in question. I don't understand how it answers Notjim's question. What is the alternative?

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