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I've always though trying to discriminate against "software" patents was particularly stupid. First: it simply encourages patents where the entire computer is

I've always though trying to discriminate against "software" patents was particularly stupid. First: it simply encourages patents where the entire computer is included in a description of the software, turning it into a product/apparatus patent. Second: the problem most people have with software patents is not the fact that software is being protected. The problem is that software patents are rife with "inventions" that are merely a low-effort merging of existing ideas – usually ideas that are well established and the context is changed slightly. This second point applies to any industry, not just software. Biotech industries are continually trying to patent drugs and genes using the same pattern. Fix the stupid determination of novelty, rather than discriminating against certain kinds of invention.

studentrob 11y ago
Novelty in the US is largely decided by the courts after patents are granted, and it's very expensive. India is saying software patents are not novel enough to protect, and directing its patent examiners not to grant them. Our examiners grant patents left and right with little consideration for if they're novel.
- gilgoomesh 11y ago
  If the patent office can't usefully determine novelty (needing to defer to the courts) then why have a patent office at all? The same problems affecting software continually affect every other industry. Software is more visible than other R&D but if software needs to be excised from patents then everything probably should.
  - newjersey 11y ago
    > If the patent office can't usefully determine novelty (needing to defer to the courts) then why have a patent office at all? What would be the effect of closing shop and saying no new patents in the United States? I think this would be the best outcome. I mean do patent applications actually help people recreate the invention after the patent expires? If not, why should patents exist at all?
    - chc 11y ago
      It seems like medical research would probably grind to halt.
  - studentrob 11y ago
    The patent office can strike down a lot of obviously conflicting patents, reducing load on the courts. Patents were created to promote innovation. That hasn't been working effectively in the world of software. The idea was, in exchange for sharing your idea, the government will protect you. So, you get some profit and a head start, and everyone else gets to build upon your idea after some period of time. Tech giants like Google lately are not enforcing many useful and innovative patents. They create them as a defense. That says something about their view of software patents. If you're asking for my opinion on patent reform, I'd drop the term on software patents way lower, like 3-5 years. That's enough time to generate a customer base for the filer and allow others with the same idea to have a chance to compete within his or her lifetime. I can't speak for other fields. I would not agree that software patent reform means everything needs to be shut down.
  - wongarsu 11y ago
    >The same problems affecting software continually affect every other industry Software has it worse than traditional engineering because the field of software engineering is only about two patent life lengths old, and both development times and product life cycles are incredibly short for most things. It makes little sense that a new algorithm gets the same protection length as a better brake system for trains. Shorter life cycles also makes defering to courts comparatively less effective and more expensive, encouraging misuse of the system. Of course software engineering isn't the only field with this problem, but it's one of few.
  - incompatible 11y ago
    Sure, I'd be happy to see all patents abolished. The age of government-granted monopolies should come to an end.
- throwawaykf05 11y ago
  > India is saying software patents are not novel enough to protect, and directing its patent examiners not to grant them Or it may be saying Indian firms are not producing sufficiently novel software, so there is no net benefit to Indian society in granting them. It could be the majority of filers are foreign companies. Why protect inventions made by outsiders, who will only use it to tax local companies? This may sound far fetched, but historically most nations have gone this phase as they develop: Until they can produce state of the art technology indigenously, IP tends to hamper development, so IP laws tend to be weak. Once a nation starts becoming competitive in innovation, they tend to ratchet up their IP laws. There are studies about this, will try to find them. (I've worked with the Indian software industry and still have close ties with it. I see even less innovation there than I see in the west. On the other hand, the startup scene is booming, so there's hope.)
- orionblastar 11y ago
  India is saying there is no patent because software isn't tangible like hardware or anything physical would be. If the patent involved hardware and the program or software it is covered because hardware is tangible. For example the Apple iPhone uses custom chips for things like encryption and security. So in India they would accept the patents. India doesn't see business methods, software, and mathematical method as valid for patents because they are not tangible in real life but more like information. If they are part of hardware or some physical device that is tangible they can issue a patent. This is quite different from the US Patent office, and most likely India did it to give small companies access to the same information that big companies use by refusing to patent their software unless it is associated with hardware. If it is all software, anyone can use it. This is a big attack on companies like Microsoft that use software patents to sue other companies. Suddenly in India, they can no longer do that unless it is tied to hardware in some way.
  - chetanahuja 11y ago
    "This is quite different from the US Patent office," Today it's different from US patent office. For most of the US Patent office's history, it was the same. See: https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co....
    - orionblastar 11y ago
      Link must have moved here: https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co.... But yeah I see now that US patent office used to be like India, but now it accepts any patent.
      - emj 11y ago
        META: Seems like the . is stripped from the end of links. https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc.
    - 11y ago
jessriedel 11y ago
I largely agree. However, I'm not sure I agree with you that it's infeasible to prevent pure software patents since folks will just include the entire computer in a description of software. If there's nothing new about the hardware, that part of the patent can just be rejected. If I submit a patent for a better mousetrap that includes a description of the house, won't the patent examiner just reject the application, or instruct that that part be ignore, or whatever the procedure is?
- bobajeff 11y ago
  If the whole computer is included in the patent then doesn't that limit the applicability of such a patent somewhat?
  - kazinator 11y ago
    Exactly; defendants in an infringement suit can easily come up with the argument that all they did was write software for a programmable, general-purpose computer, and therefore their work can only violate a software patent, and no such thing can be valid in the land.
- kazinator 11y ago
  If there is nothing new about the hardware and that part of the patent is rejected, then it will hopefully be obvious that what remains is a software patent, which is rejected ex facie.
SilasX 11y ago
I have to agree. The problem isn't so much that software should be inherently unpatentable, but that there's been such a flood of patented ideas that pretty clearly are independently discoverable by numerous people working on the problem (or worse, are patents of an end rather than a means e.g. the one-click patent) and which keep getting passed through, which results in a patent database that's a minefield rather than a mine of useful ideas.
guelo 11y ago
The supposed benefit to society from granting a monopoly on an idea is that it encourages people to invent new ideas and disclose their inventions. Neither ideas or disclosure of ideas are in short supply in the computer world today. Software patents provide no benefit to society.
- kazinator 11y ago
  Good point. Also, disclosure is implicit in distribution in software, so no encouragement of disclosure is needed. That is to say, if someone has some new software idea, and wants to keep it a secret, the only way is not to implement anything and not to ship anything. (Or else, ship the software on a tamper-proof black-box chip, and not in a way that actually installs on the customers' hardware.)
  - eru 11y ago
    Or put it in the cloud, and only sell SaaS?
    - kazinator 11y ago
      Excellent point, indicating a clear detriment.
      - jacquesm 11y ago
        I'm actually fine with that. For almost all inventions knowing something is possible is enough to be able to figure out a way to replicate the basic idea, it is rare that the patent disclosure really shows something that was thought to be infeasible (they do exist though). The problem lies in the fact that those few ideas tend to be so valuable that patents by themselves are actually useful, it is in the aggregate and with the amount of abuse of the patent system that it becomes a net negative. On the whole I believe that the world would be better off without patents but what with the developed world being less and less on the producing side of things copyright, patents and other 'intellectual property' concepts are becoming a mainstay of our economies, so expect them to be here to stay.
quadrangle 11y ago
> software is being protected Patents don't protect things, they restrict things. The only thing they protect is monopolies.
placebo 11y ago
The "stupid determination of novelty" as you correctly mentioned is just one factor of what is sick about the patent system. The fact that in many cases damages due to infringement are ridiculously larger than the harm caused to patentees by the infringement, that the resources required just to prove no infringement was actually made can take an innocent company out of business and the fact that there is no penalty on wrongful infringement claims are just a few more. I expect changes will be slow, as with any system where there are entities that have a lot to lose by making things right.
na85 11y ago
Software is just math. You can't patent math already. Software patents are borderline retardation.
- umanwizard 11y ago
  I see this repeated a lot, but I've done a fair bit of math, and a fair bit of programming, and they feel very different, so I'm not sure what it's supposed to mean. "Algorithms are math" may be true, but most software development feels a lot more like engineering.
  - Ace17 11y ago
    They're called "computers" for a reason.
    - umanwizard 11y ago
      Yeah, because they can do arithmetic really fast? I wouldn't consider adding 1 to a register here and there and taking some conditional branches "math". Modern math (usually) involves thinking about theorems very hard and then writing proofs for them.
      - Ace17 11y ago
        Algorithms have existed in the world of mathematics thousand years before computers were invented. From this point of view, computers are just a way to speed-up things. If the Euler algorithm was discovered today, should it be patentable? What about the FFT? Is there any substantial difference with any "modern" algorithm, like the DCT or arithmetic encoding?
        umanwizard 11y ago
        I already said algorithms can be plausibly called math. Lots of software, and software patents, have little to do with novel algorithms.
  - 11y ago
otabdeveloper1 11y ago
In most countries you can't patent ideas, you can only patent objects and manufacturing processes. The U.S. definition of 'patent' is an outlier.
blazespin 11y ago
Fixing novelty is impossible. Rather, they should just have a shorter lifespan for software patents.
ZeroGravitas 11y ago
One difference between software and drugs is that the chemicals are fairly unique. If two people have the same chemical then one of them wins. That may not be fair, but at least it's over quickly. With software the claims are so vague no-one knows what's covered and what's not, which leads to the biggest, richest bullies winning based on nothing but legal threats and tiny little companies with nothing to lose acting like stick-up artists. "Good fences make good neighbours", imagine property law if your claim was something like "the grass by the river with the nice trees" and it was in the middle of a bustling city with lots of businesses on adjacent land, rather than a precisely drawn plan.
Lewton 11y ago
> First: it simply encourages patents where the entire computer is included in a description of the software, turning it into a product/apparatus patent. That worry is completely nonsensical. That would trivially be caught by the patent office. And it would mean that a competitor could use the software on a different architecture without infringing, making the patent worthless.
- jobigoud 11y ago
  > That would trivially be caught by the patent office. It's actually used constantly in Europe to work around the restriction on software patents. The problem is that patent offices aren't staffed to do the job that is assigned to them. They would need a lot of full time engineers in each discipline just to sort through the pile.
deleted 11y ago
[deleted]
Peaker 11y ago
Software is an area where many more ideas are composed together into a single "product" than other areas. Thus, each single patent tends to affect far more products than other industries. To work around the problem you mentioned, you can encode in law an exemption for software practitioners from patent law. i.e: Instead of restricting the kinds of patents people can write, give an exemption to any trades people you want from any patents.
bshanks 11y ago
The reliable determination of novelty is an intractable problem. Empirically, this appears to be true; anecdotally, i know of at least one patent office that has tried to reliably determine novelty and failed, and i know of none that have succeeded. To justify regulation of innovation, the burden of proof should be on those who think that determination of novelty is feasible to show via demonstration that it actually is. Why is this intractable? Technical knowledge is continually ramifying into an ever-finer tree of subspecialities. Imo a significant proportion of researchers at the cutting edge of knowledge work in areas whose details are only understood by a small number of people in the entire world (~5-30). Someone outside of this small group will not be able to reliably distinguish novel ideas from non-novel. Yet it is economically infeasible for a government to hire one patent examiner for every one of these subspecialties (this would require the patent office's budget to be a significant fraction of the sum of all research budgets in the entire world). Therefore any real-world implementation of the patent system will always have an unacceptably high number of bad patents because insufficently specialized examiners will allow patenting of things which are obvious to the (handful of) actual specialists in the given area. Pharmaceuticals appear to be a special case in that there is a more crisp delineation between chemicals than between ideas.
wnevets 11y ago
new inventions aren't suppose to be obvious to an expert in the field. If this was enforced properly the second point would be taken care of with existing law.

studentrob 11y ago

Novelty in the US is largely decided by the courts after patents are granted, and it's very expensive. India is saying software patents are not novel enough to protect, and directing its patent examiners not to grant them. Our examiners grant patents left and right with little consideration for if they're novel.

gilgoomesh 11y ago
If the patent office can't usefully determine novelty (needing to defer to the courts) then why have a patent office at all? The same problems affecting software continually affect every other industry. Software is more visible than other R&D but if software needs to be excised from patents then everything probably should.
- newjersey 11y ago
  > If the patent office can't usefully determine novelty (needing to defer to the courts) then why have a patent office at all? What would be the effect of closing shop and saying no new patents in the United States? I think this would be the best outcome. I mean do patent applications actually help people recreate the invention after the patent expires? If not, why should patents exist at all?
  - chc 11y ago
    It seems like medical research would probably grind to halt.
- studentrob 11y ago
  The patent office can strike down a lot of obviously conflicting patents, reducing load on the courts. Patents were created to promote innovation. That hasn't been working effectively in the world of software. The idea was, in exchange for sharing your idea, the government will protect you. So, you get some profit and a head start, and everyone else gets to build upon your idea after some period of time. Tech giants like Google lately are not enforcing many useful and innovative patents. They create them as a defense. That says something about their view of software patents. If you're asking for my opinion on patent reform, I'd drop the term on software patents way lower, like 3-5 years. That's enough time to generate a customer base for the filer and allow others with the same idea to have a chance to compete within his or her lifetime. I can't speak for other fields. I would not agree that software patent reform means everything needs to be shut down.
- wongarsu 11y ago
  >The same problems affecting software continually affect every other industry Software has it worse than traditional engineering because the field of software engineering is only about two patent life lengths old, and both development times and product life cycles are incredibly short for most things. It makes little sense that a new algorithm gets the same protection length as a better brake system for trains. Shorter life cycles also makes defering to courts comparatively less effective and more expensive, encouraging misuse of the system. Of course software engineering isn't the only field with this problem, but it's one of few.
- incompatible 11y ago
  Sure, I'd be happy to see all patents abolished. The age of government-granted monopolies should come to an end.
throwawaykf05 11y ago
> India is saying software patents are not novel enough to protect, and directing its patent examiners not to grant them Or it may be saying Indian firms are not producing sufficiently novel software, so there is no net benefit to Indian society in granting them. It could be the majority of filers are foreign companies. Why protect inventions made by outsiders, who will only use it to tax local companies? This may sound far fetched, but historically most nations have gone this phase as they develop: Until they can produce state of the art technology indigenously, IP tends to hamper development, so IP laws tend to be weak. Once a nation starts becoming competitive in innovation, they tend to ratchet up their IP laws. There are studies about this, will try to find them. (I've worked with the Indian software industry and still have close ties with it. I see even less innovation there than I see in the west. On the other hand, the startup scene is booming, so there's hope.)
orionblastar 11y ago
India is saying there is no patent because software isn't tangible like hardware or anything physical would be. If the patent involved hardware and the program or software it is covered because hardware is tangible. For example the Apple iPhone uses custom chips for things like encryption and security. So in India they would accept the patents. India doesn't see business methods, software, and mathematical method as valid for patents because they are not tangible in real life but more like information. If they are part of hardware or some physical device that is tangible they can issue a patent. This is quite different from the US Patent office, and most likely India did it to give small companies access to the same information that big companies use by refusing to patent their software unless it is associated with hardware. If it is all software, anyone can use it. This is a big attack on companies like Microsoft that use software patents to sue other companies. Suddenly in India, they can no longer do that unless it is tied to hardware in some way.
- chetanahuja 11y ago
  "This is quite different from the US Patent office," Today it's different from US patent office. For most of the US Patent office's history, it was the same. See: https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co....
  - orionblastar 11y ago
    Link must have moved here: https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co.... But yeah I see now that US patent office used to be like India, but now it accepts any patent.
    - emj 11y ago
      META: Seems like the . is stripped from the end of links. https://en.wikipedia.org/wiki/State_Street_Bank_%26_Trust_Co._v._Signature_Financial_Group,_Inc.
  - 11y ago

jessriedel 11y ago

I largely agree. However, I'm not sure I agree with you that it's infeasible to prevent pure software patents since folks will just include the entire computer in a description of software. If there's nothing new about the hardware, that part of the patent can just be rejected. If I submit a patent for a better mousetrap that includes a description of the house, won't the patent examiner just reject the application, or instruct that that part be ignore, or whatever the procedure is?

bobajeff 11y ago
If the whole computer is included in the patent then doesn't that limit the applicability of such a patent somewhat?
- kazinator 11y ago
  Exactly; defendants in an infringement suit can easily come up with the argument that all they did was write software for a programmable, general-purpose computer, and therefore their work can only violate a software patent, and no such thing can be valid in the land.
kazinator 11y ago
If there is nothing new about the hardware and that part of the patent is rejected, then it will hopefully be obvious that what remains is a software patent, which is rejected ex facie.

SilasX 11y ago

I have to agree. The problem isn't so much that software should be inherently unpatentable, but that there's been such a flood of patented ideas that pretty clearly are independently discoverable by numerous people working on the problem (or worse, are patents of an end rather than a means e.g. the one-click patent) and which keep getting passed through, which results in a patent database that's a minefield rather than a mine of useful ideas.

guelo 11y ago

The supposed benefit to society from granting a monopoly on an idea is that it encourages people to invent new ideas and disclose their inventions. Neither ideas or disclosure of ideas are in short supply in the computer world today. Software patents provide no benefit to society.

kazinator 11y ago
Good point. Also, disclosure is implicit in distribution in software, so no encouragement of disclosure is needed. That is to say, if someone has some new software idea, and wants to keep it a secret, the only way is not to implement anything and not to ship anything. (Or else, ship the software on a tamper-proof black-box chip, and not in a way that actually installs on the customers' hardware.)
- eru 11y ago
  Or put it in the cloud, and only sell SaaS?
  - kazinator 11y ago
    Excellent point, indicating a clear detriment.
    - jacquesm 11y ago
      I'm actually fine with that. For almost all inventions knowing something is possible is enough to be able to figure out a way to replicate the basic idea, it is rare that the patent disclosure really shows something that was thought to be infeasible (they do exist though). The problem lies in the fact that those few ideas tend to be so valuable that patents by themselves are actually useful, it is in the aggregate and with the amount of abuse of the patent system that it becomes a net negative. On the whole I believe that the world would be better off without patents but what with the developed world being less and less on the producing side of things copyright, patents and other 'intellectual property' concepts are becoming a mainstay of our economies, so expect them to be here to stay.

quadrangle 11y ago

> software is being protected Patents don't protect things, they restrict things. The only thing they protect is monopolies.

placebo 11y ago

The "stupid determination of novelty" as you correctly mentioned is just one factor of what is sick about the patent system. The fact that in many cases damages due to infringement are ridiculously larger than the harm caused to patentees by the infringement, that the resources required just to prove no infringement was actually made can take an innocent company out of business and the fact that there is no penalty on wrongful infringement claims are just a few more. I expect changes will be slow, as with any system where there are entities that have a lot to lose by making things right.

na85 11y ago

Software is just math. You can't patent math already. Software patents are borderline retardation.

umanwizard 11y ago
I see this repeated a lot, but I've done a fair bit of math, and a fair bit of programming, and they feel very different, so I'm not sure what it's supposed to mean. "Algorithms are math" may be true, but most software development feels a lot more like engineering.
- Ace17 11y ago
  They're called "computers" for a reason.
  - umanwizard 11y ago
    Yeah, because they can do arithmetic really fast? I wouldn't consider adding 1 to a register here and there and taking some conditional branches "math". Modern math (usually) involves thinking about theorems very hard and then writing proofs for them.
    - Ace17 11y ago
      Algorithms have existed in the world of mathematics thousand years before computers were invented. From this point of view, computers are just a way to speed-up things. If the Euler algorithm was discovered today, should it be patentable? What about the FFT? Is there any substantial difference with any "modern" algorithm, like the DCT or arithmetic encoding?
      - umanwizard 11y ago
        I already said algorithms can be plausibly called math. Lots of software, and software patents, have little to do with novel algorithms.
- 11y ago

otabdeveloper1 11y ago

In most countries you can't patent ideas, you can only patent objects and manufacturing processes. The U.S. definition of 'patent' is an outlier.

blazespin 11y ago

Fixing novelty is impossible. Rather, they should just have a shorter lifespan for software patents.

ZeroGravitas 11y ago

One difference between software and drugs is that the chemicals are fairly unique. If two people have the same chemical then one of them wins. That may not be fair, but at least it's over quickly. With software the claims are so vague no-one knows what's covered and what's not, which leads to the biggest, richest bullies winning based on nothing but legal threats and tiny little companies with nothing to lose acting like stick-up artists. "Good fences make good neighbours", imagine property law if your claim was something like "the grass by the river with the nice trees" and it was in the middle of a bustling city with lots of businesses on adjacent land, rather than a precisely drawn plan.

Lewton 11y ago

> First: it simply encourages patents where the entire computer is included in a description of the software, turning it into a product/apparatus patent. That worry is completely nonsensical. That would trivially be caught by the patent office. And it would mean that a competitor could use the software on a different architecture without infringing, making the patent worthless.

jobigoud 11y ago
> That would trivially be caught by the patent office. It's actually used constantly in Europe to work around the restriction on software patents. The problem is that patent offices aren't staffed to do the job that is assigned to them. They would need a lot of full time engineers in each discipline just to sort through the pile.

deleted 11y ago

[deleted]

Peaker 11y ago

Software is an area where many more ideas are composed together into a single "product" than other areas. Thus, each single patent tends to affect far more products than other industries. To work around the problem you mentioned, you can encode in law an exemption for software practitioners from patent law. i.e: Instead of restricting the kinds of patents people can write, give an exemption to any trades people you want from any patents.

bshanks 11y ago

The reliable determination of novelty is an intractable problem. Empirically, this appears to be true; anecdotally, i know of at least one patent office that has tried to reliably determine novelty and failed, and i know of none that have succeeded. To justify regulation of innovation, the burden of proof should be on those who think that determination of novelty is feasible to show via demonstration that it actually is. Why is this intractable? Technical knowledge is continually ramifying into an ever-finer tree of subspecialities. Imo a significant proportion of researchers at the cutting edge of knowledge work in areas whose details are only understood by a small number of people in the entire world (~5-30). Someone outside of this small group will not be able to reliably distinguish novel ideas from non-novel. Yet it is economically infeasible for a government to hire one patent examiner for every one of these subspecialties (this would require the patent office's budget to be a significant fraction of the sum of all research budgets in the entire world). Therefore any real-world implementation of the patent system will always have an unacceptably high number of bad patents because insufficently specialized examiners will allow patenting of things which are obvious to the (handful of) actual specialists in the given area. Pharmaceuticals appear to be a special case in that there is a more crisp delineation between chemicals than between ideas.

wnevets 11y ago

new inventions aren't suppose to be obvious to an expert in the field. If this was enforced properly the second point would be taken care of with existing law.