6 ms·

Software patents

71 points by tomh 17y ago

fnid2 17y ago
Everything said in this post is true of any kind of patent, not just software patents. Gillette does the same thing with razors. I still see no reason to treat software patents as a subset of patents that should be dealt with independently of the patent system as a whole. If we do away with software patents we should do away with ALL patents. If we reform all patents, we should also reform software patents.
- pingswept 17y ago
  I think that's close to true, but not quite. The difference is that software is far more reusable than physical objects. For example, a linked lists are currently used in at least hundreds of thousands of applications. A razor blade can be used in what-- 100 different tools? Razor, paper cutter? (But I do still think reforming the entire patent system, as you suggest, is a great idea.)
- kiba 17y ago
  You may find this book, Against Intellectual Monopoly, to be helpful in making your case. http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm http://levine.sscnet.ucla.edu/general/intellectual/againstfi... It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty. - Michelle Boldrin and David K. Levine in Against Intellectual Monopoly
- aoriste 17y ago
  As a disclaimer: in an ideal civilization, in which the market ceased to operate, wealth ceased to appeal to people, and our individual ambitions collectively coincided to the mutual benefit of all, then patents would, and should, cease to be. While I despise the concepts of owning an idea, owning the right to propagate an idea, and possessing control over the use of an idea, I cannot help admit their (mottled, provisional, and entirely realistic) use. Patent law should, undoubtedly, be reformed - limitations on what owning the idea means should be reworked. Just as, for instance, owning a piece of land doesn't mean you can do whatever you like with it, owning an idea should be similarly subject in order to benefit the intellectual community in whose landscape the idea sits. Should we get rid of ALL patents? Yes - but not until we (being ironical here) get rid of all companies whose capital is founded on owning the ideas that make them money. In the case of software, however, there is right now an immediate dysfunction in patent law, made evident by the examples in the article, that should be immediately addressed.
  - kiba 17y ago
    While I despise the concepts of owning an idea, owning the right to propagate an idea, and possessing control over the use of an idea, I cannot help admit their (mottled, provisional, and entirely realistic) use. Patent law should, undoubtedly, be reformed - limitations on what owning the idea means should be reworked. Just as, for instance, owning a piece of land doesn't mean you can do whatever you like with it, owning an idea should be similarly subject in order to benefit the intellectual community in whose landscape the idea sits. Where is the evidence that patents benefit the intellectual community at large and increase the wealth of the people at large? It is one thing to think that the patent system might benefit civilization as a whole, but it's a long jump to suggest that it should be implemented. Moreover, the ownership of idea does not fit the logical justification for property rights of actual scarce resources such as land. And furthermore, the very existence of Makerbot Industries and their cupcake CNC hardware as well arduino, and countless other open source hardware product directly clash with the notion of patent being necessary or needed to encourage the development of physical inventions. Here, in the present day, it can already be seen as a direct dysfunction. That's not including the case against steam engine inventor James Watt, or agriculture flourishing without much patent protection(Breeders would sell new plant varieties to farmers, who then reproduce and resell the seeds on the market), as well as the fashion industry who thrives in the midst of copycats, and more.
    - aoriste 17y ago
      Alright, trash patents right now - tell me what would happen. "where is the evidence..." I was having this discussion with a friend of mine, an engineering PhD. At first, I took your side, and ideally, I still do. Don't get me wrong: I WANT a patentless world to work. He put it like this: what do you do when you work for years on an idea, you finally get enough to publish, and to get your idea patented. You know that your career depends on your getting the "first stake" on this idea - others (who you can name) are working on the idea too. If you cannot patent it, then you cannot build the rest of your career on your having gotten there first. Now I know, immediately, this notion sounded utterly evil to me. You SHOULDN'T, I protested, be able to found your career on having gotten there first. You should want to share your idea with all of those people who are also working on it - and afterall - isn't this how academic science moves forward? Yes, he said, but still - if you cannot patent your idea, then somebody who ALREADY has the resources will snatch it up and use it to dominate the field BEFORE you can acquire the resources to do it youself. And so you end up just giving somebody an idea for free, and you get nothing in exchange for your years of work. Ideologically, I am still rubbed the wrong way by this argument - on the other hand, what else is my friend the engineer supposed to do? The benefit of patents is not to civilization as a whole - that is the problem with them - their benefits are local and incremental to individuals - and even that benefit is imperfect. The system requires reform - but I do not think we are ready for the system to be abolished.
pingswept 17y ago
At present, is there any reasonable behavior for developers other than to just ignore software patents? I wouldn't even know where to start if I were trying to avoid infringing. With non-software patents (let's say I'm building a new kind of lawnmower), I could search for patents on lawnmowers, maybe knife blades, or weed whackers. But with software, I think I'd have to search for abstract concepts like "list sorting" but maybe also "representing data in an ordered table" and "appending measurements according to rule." Is there anyone who doesn't just ignore software patents and then hope for the best?
- DougBTX 17y ago
  I imagine it's best to ignore them completely, if there is evidence that you've been reading up on patents that just makes it easier to prove intentional infringement, tripling the damages. At least that's better than copyright infringement, where you could be liable for 100,000 times damages.
kiba 17y ago
I believe software only bring out the danger of patents into the open, not because it is a poor fit. Imagine that people are starting to have a printer that can print any objects from any design at will, including the biological kind. They benefit from sharing designs over time, because not only that their machine can print newer design, but their machine also allow them to recycle objects into new and better one. All that is left is the distribution mechanism for raw material, but once you reach a certain amount of material, you can basically transform old objects into new ones at will, barring the need for new raw and rare exotic materials. Perhaps, people who is able to complete a design will be rewarded with especially rare materials for them to experiment with? Now what happen if the patent system is still in effect? That mean every person with a 3D printer is barred from printing designs from a patent of an inventor. In order to make lot of money, he essentially bar the people with 3D printers from printing so that he can sell his invention at the market for really high fees. If he come up with an innovative design for a self-replicating machine, he can bar the people with 3D printers as well from doing as they like for twenty years. For whatever reason, he rather have the power rather than becoming one of those nobodies in a society where everyone is become wealthier. He can practically stop whole community of inventors who don't use patent and have a totally different idea toward sharing the design of invention. Now imagine an innovative software entrepreneur stopping the open source software community and industry! Patents doesn't need to be frivolous in order to be dangerous to the progress of technology. It can be innovative and life changing. But an equally self-interested community of inventors who does thing in the open, may also give you inventions that is innovative and life changing as well.(And it may be just one inventor in the whole community who come up with it as well) Which path do you want to explore?
- thwarted 17y ago
  Imagine that people are starting to have a printer that can print any objects from any design at will, including the biological kind. ... That mean every person with a 3D printer is barred from printing designs from a patent of an inventor. In order to make lot of money, he essentially bar the people with 3D printers from printing so that he can sell his invention at the market for really high fees. If you had a replicator that could produce anything, why would you need money at all? There wouldn't even be markets as we know them today where an inventor could command really high fees. And without needing money, you wouldn't need the government enforced monopoly that is patents to allow restricted exploitation of an idea. Besides, stupid people would think they'd be being smart by have their 3D printers print money, there by making money worthless. In this thought experiment, I want to be part of and explore the sharing/open community, because I don't think a community that hides its best (and only assets), it's ideas, when production costs don't exist won't be able to grow as fast as a community that shares. When the key resources, and those that provide the basic necessities, are unlimited, there's no reason not to share.
mcav 17y ago
It's great that a lot of developers are sounding off on their blogs about this. But what will it take to achieve real progress toward reform? We can complain all we want, but what will it take to get real traction?
- grellas 17y ago
  Though he did not have a blog, Thomas Jefferson "sounded off" (to use your term) on this issue nearly 200 years ago, in a letter to Isaac McPherson dated August 13, 1813 (the text of the full letter is found here: http://www.temple.edu/lawschool/dpost/mcphersonletter.html http://www.temple.edu/lawschool/dpost/mcphersonletter.html). His primary point is that ideas are by nature designed to spread for the benefit of society and are not inherently to be made a subject of property - and thus if a society decides to deny to inventors any rights to exclusive claim on an idea, no one has any reason to complain. In his words: "That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body." This is a philosophical argument against the idea of patents generally. Jefferson lost this argument. Thus, the Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl. 8) provides that the Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress implemented its constitutional authority to sanction patent monopolies by defining patentable subject matter very broadly, to include "any useful art, manufacture, engine, machine, or device, or any improvement therein." Congress amended the Act in 1793 and then again in 1952, so that today it reads as to the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101): "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Jefferson made a second very important point in his 1813 letter, and this bears directly on the philosophical dispute underlying the patentability of process or software patents (of course, he did not discuss it in terms of software). This second point deals with the idea that new uses for old machines or processes should not constitute patentable subject matter. Jefferson believed that a "machine of which we were possessed, might be applied by every man to any use of which it is susceptible, and that this right ought not to be taken from him and given to a monopolist, because the first perhaps had occasion so to apply it." In essence, the Jeffersonian position amounted to saying that society was free if it liked to grant limited monopolies on useful ideas that had utility for commerce but there was no inherent right in an inventor to claim such a monopoly - it all depended on the judgment of society. If, however, a society had once decided to grant such monopolies in order to promote commerce, then the monopoly should extend only to the original invention and not to any new use made of it thereafter. Why? Because ideas are meant to be freely transferred for the benefit of society, including the free application of any "machine" by any person to any use of which it is susceptible and, as Jefferson put it, "this right ought not to be taken from him and given to a monopolist." While Jefferson had lost on the broader idea of abrogating patent protection generally, the more limited idea that discoveries of new uses for old machines or processes were not patentable subject matter did hold sway for quite a while in leading U.S. judicial decisions. For example, in Roberts v. Ryer, 91 U.S. 150, 157 (1875), the Supreme Court held that "it is no new invention to use an old machine for a new purpose." In 1952, however, Congress explicitly overturned this line of judicial decisions. Specifically, it defined as a patentable process any "process, art, or method" and specified that this included "a new use of a known process, machine, manufacture, composition of matter, or material." (35 U.S.C. sec. 100(b)). Of course, this 1952 amendment to the Patent Act laid the foundation for a significant expansion of "process" patents and specifically for the adoption of software patents. Why? Because, in a world of general-purpose computing devices, all kinds of existing machines and processes are "susceptible to new uses." Indeed, this is the very nature of software, which can apply to an almost infinite range of potential uses. Once the principle was established that such new uses fell within the statutory definition of "patentable subject matter," then a broad array of such patents could be issued, subject only to meeting other requirements of patentability such as novelty, non-obviousness, utility, etc. With the modern development of the free and open software movements, the old philosophical debate has taken on new life but the prospects of the "free" side winning this debate, in my view, are likely doubtful. The legal tradition is deeply entrenched in favor of patents, as are the commercial interests. One is left, then, with what amounts to a philosophical argument that patents (or at least process patents) are bad. Insofar as the law is concerned, the issue will be addressed in the Supreme Court's forthcoming decision in Bilski, expected this year. Beyond that, relevant arguments must be addressed to Congress, which does have the authority to redefine what constitutes patentable subject matter and hence the theoretical power to abolish software patents in general. Sounding off on blogs definitely furthers the momentum for change but a lot more would be needed to effect a change of view on issues that are so deeply rooted in U.S. history and legal tradition. So long as this remains primarily an ideological position of the free/open software movement, and nothing more, it will likely languish along with the old Jeffersonian sentiment that today sounds so quaintly out of date. I am not saying this in a patronizing way. For something to come of this besides just sounding off, a major shift in mindset has to occur in society generally, and I don't see any evidence of this as yet.
justinsb 17y ago
Yet another 'software patents are bad' piece without a single fact. Many disagreed to the point of retaliative downvoting with my blog post the other day ( http://news.ycombinator.com/item?id=1167926 http://news.ycombinator.com/item?id=1167926 ), but it was trying to make a fact-based case pro-patents; can't we at least try to argue from facts rather than hearsay on HN?
- kiba 17y ago
  It would seem to me that he is arguing from conjectures and logics. I think that deduction is a valid investigation technique, because mostly we can't investigate everything using induction. As for your argument in that post regarding Google, I would still say that even if a patent is non-frivolous, non-obvious, and innovative, it could still have a negative overall effect mostly because of the privileges that is afforded to inventors and innovators to silence the competition who may have come up with equally groundbreaking work. Innovative, non-frivolous patents still poses a danger to the open source software industry, which does not relies on patents to make their money. The patent system make us choose a kind of inventor and entrepreneur over the type that open up their secrecy to the world and become wealthy from it. That's the choice we're making if we choose the patent system over the market solution of intentional openness.
Create 17y ago
Building up a patent portfolio by engaging in defensive patenting cannot always protect against hold-up. -- Federal Trade Commission of the USA http://www.nosoftwarepatents.com/en/m/dangers/investment.html http://www.nosoftwarepatents.com/en/m/dangers/investment.htm...

71 points by tomh 17y ago

fnid2 17y ago

Everything said in this post is true of any kind of patent, not just software patents. Gillette does the same thing with razors. I still see no reason to treat software patents as a subset of patents that should be dealt with independently of the patent system as a whole. If we do away with software patents we should do away with ALL patents. If we reform all patents, we should also reform software patents.

pingswept 17y ago
I think that's close to true, but not quite. The difference is that software is far more reusable than physical objects. For example, a linked lists are currently used in at least hundreds of thousands of applications. A razor blade can be used in what-- 100 different tools? Razor, paper cutter? (But I do still think reforming the entire patent system, as you suggest, is a great idea.)
kiba 17y ago
You may find this book, Against Intellectual Monopoly, to be helpful in making your case. http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm http://levine.sscnet.ucla.edu/general/intellectual/againstfi... It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty. - Michelle Boldrin and David K. Levine in Against Intellectual Monopoly
aoriste 17y ago
As a disclaimer: in an ideal civilization, in which the market ceased to operate, wealth ceased to appeal to people, and our individual ambitions collectively coincided to the mutual benefit of all, then patents would, and should, cease to be. While I despise the concepts of owning an idea, owning the right to propagate an idea, and possessing control over the use of an idea, I cannot help admit their (mottled, provisional, and entirely realistic) use. Patent law should, undoubtedly, be reformed - limitations on what owning the idea means should be reworked. Just as, for instance, owning a piece of land doesn't mean you can do whatever you like with it, owning an idea should be similarly subject in order to benefit the intellectual community in whose landscape the idea sits. Should we get rid of ALL patents? Yes - but not until we (being ironical here) get rid of all companies whose capital is founded on owning the ideas that make them money. In the case of software, however, there is right now an immediate dysfunction in patent law, made evident by the examples in the article, that should be immediately addressed.
- kiba 17y ago
  While I despise the concepts of owning an idea, owning the right to propagate an idea, and possessing control over the use of an idea, I cannot help admit their (mottled, provisional, and entirely realistic) use. Patent law should, undoubtedly, be reformed - limitations on what owning the idea means should be reworked. Just as, for instance, owning a piece of land doesn't mean you can do whatever you like with it, owning an idea should be similarly subject in order to benefit the intellectual community in whose landscape the idea sits. Where is the evidence that patents benefit the intellectual community at large and increase the wealth of the people at large? It is one thing to think that the patent system might benefit civilization as a whole, but it's a long jump to suggest that it should be implemented. Moreover, the ownership of idea does not fit the logical justification for property rights of actual scarce resources such as land. And furthermore, the very existence of Makerbot Industries and their cupcake CNC hardware as well arduino, and countless other open source hardware product directly clash with the notion of patent being necessary or needed to encourage the development of physical inventions. Here, in the present day, it can already be seen as a direct dysfunction. That's not including the case against steam engine inventor James Watt, or agriculture flourishing without much patent protection(Breeders would sell new plant varieties to farmers, who then reproduce and resell the seeds on the market), as well as the fashion industry who thrives in the midst of copycats, and more.
  - aoriste 17y ago
    Alright, trash patents right now - tell me what would happen. "where is the evidence..." I was having this discussion with a friend of mine, an engineering PhD. At first, I took your side, and ideally, I still do. Don't get me wrong: I WANT a patentless world to work. He put it like this: what do you do when you work for years on an idea, you finally get enough to publish, and to get your idea patented. You know that your career depends on your getting the "first stake" on this idea - others (who you can name) are working on the idea too. If you cannot patent it, then you cannot build the rest of your career on your having gotten there first. Now I know, immediately, this notion sounded utterly evil to me. You SHOULDN'T, I protested, be able to found your career on having gotten there first. You should want to share your idea with all of those people who are also working on it - and afterall - isn't this how academic science moves forward? Yes, he said, but still - if you cannot patent your idea, then somebody who ALREADY has the resources will snatch it up and use it to dominate the field BEFORE you can acquire the resources to do it youself. And so you end up just giving somebody an idea for free, and you get nothing in exchange for your years of work. Ideologically, I am still rubbed the wrong way by this argument - on the other hand, what else is my friend the engineer supposed to do? The benefit of patents is not to civilization as a whole - that is the problem with them - their benefits are local and incremental to individuals - and even that benefit is imperfect. The system requires reform - but I do not think we are ready for the system to be abolished.

pingswept 17y ago

At present, is there any reasonable behavior for developers other than to just ignore software patents? I wouldn't even know where to start if I were trying to avoid infringing. With non-software patents (let's say I'm building a new kind of lawnmower), I could search for patents on lawnmowers, maybe knife blades, or weed whackers. But with software, I think I'd have to search for abstract concepts like "list sorting" but maybe also "representing data in an ordered table" and "appending measurements according to rule." Is there anyone who doesn't just ignore software patents and then hope for the best?

DougBTX 17y ago
I imagine it's best to ignore them completely, if there is evidence that you've been reading up on patents that just makes it easier to prove intentional infringement, tripling the damages. At least that's better than copyright infringement, where you could be liable for 100,000 times damages.

kiba 17y ago

I believe software only bring out the danger of patents into the open, not because it is a poor fit. Imagine that people are starting to have a printer that can print any objects from any design at will, including the biological kind. They benefit from sharing designs over time, because not only that their machine can print newer design, but their machine also allow them to recycle objects into new and better one. All that is left is the distribution mechanism for raw material, but once you reach a certain amount of material, you can basically transform old objects into new ones at will, barring the need for new raw and rare exotic materials. Perhaps, people who is able to complete a design will be rewarded with especially rare materials for them to experiment with? Now what happen if the patent system is still in effect? That mean every person with a 3D printer is barred from printing designs from a patent of an inventor. In order to make lot of money, he essentially bar the people with 3D printers from printing so that he can sell his invention at the market for really high fees. If he come up with an innovative design for a self-replicating machine, he can bar the people with 3D printers as well from doing as they like for twenty years. For whatever reason, he rather have the power rather than becoming one of those nobodies in a society where everyone is become wealthier. He can practically stop whole community of inventors who don't use patent and have a totally different idea toward sharing the design of invention. Now imagine an innovative software entrepreneur stopping the open source software community and industry! Patents doesn't need to be frivolous in order to be dangerous to the progress of technology. It can be innovative and life changing. But an equally self-interested community of inventors who does thing in the open, may also give you inventions that is innovative and life changing as well.(And it may be just one inventor in the whole community who come up with it as well) Which path do you want to explore?

thwarted 17y ago
Imagine that people are starting to have a printer that can print any objects from any design at will, including the biological kind. ... That mean every person with a 3D printer is barred from printing designs from a patent of an inventor. In order to make lot of money, he essentially bar the people with 3D printers from printing so that he can sell his invention at the market for really high fees. If you had a replicator that could produce anything, why would you need money at all? There wouldn't even be markets as we know them today where an inventor could command really high fees. And without needing money, you wouldn't need the government enforced monopoly that is patents to allow restricted exploitation of an idea. Besides, stupid people would think they'd be being smart by have their 3D printers print money, there by making money worthless. In this thought experiment, I want to be part of and explore the sharing/open community, because I don't think a community that hides its best (and only assets), it's ideas, when production costs don't exist won't be able to grow as fast as a community that shares. When the key resources, and those that provide the basic necessities, are unlimited, there's no reason not to share.

mcav 17y ago

It's great that a lot of developers are sounding off on their blogs about this. But what will it take to achieve real progress toward reform? We can complain all we want, but what will it take to get real traction?

grellas 17y ago
Though he did not have a blog, Thomas Jefferson "sounded off" (to use your term) on this issue nearly 200 years ago, in a letter to Isaac McPherson dated August 13, 1813 (the text of the full letter is found here: http://www.temple.edu/lawschool/dpost/mcphersonletter.html http://www.temple.edu/lawschool/dpost/mcphersonletter.html). His primary point is that ideas are by nature designed to spread for the benefit of society and are not inherently to be made a subject of property - and thus if a society decides to deny to inventors any rights to exclusive claim on an idea, no one has any reason to complain. In his words: "That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body." This is a philosophical argument against the idea of patents generally. Jefferson lost this argument. Thus, the Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl. 8) provides that the Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress implemented its constitutional authority to sanction patent monopolies by defining patentable subject matter very broadly, to include "any useful art, manufacture, engine, machine, or device, or any improvement therein." Congress amended the Act in 1793 and then again in 1952, so that today it reads as to the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101): "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Jefferson made a second very important point in his 1813 letter, and this bears directly on the philosophical dispute underlying the patentability of process or software patents (of course, he did not discuss it in terms of software). This second point deals with the idea that new uses for old machines or processes should not constitute patentable subject matter. Jefferson believed that a "machine of which we were possessed, might be applied by every man to any use of which it is susceptible, and that this right ought not to be taken from him and given to a monopolist, because the first perhaps had occasion so to apply it." In essence, the Jeffersonian position amounted to saying that society was free if it liked to grant limited monopolies on useful ideas that had utility for commerce but there was no inherent right in an inventor to claim such a monopoly - it all depended on the judgment of society. If, however, a society had once decided to grant such monopolies in order to promote commerce, then the monopoly should extend only to the original invention and not to any new use made of it thereafter. Why? Because ideas are meant to be freely transferred for the benefit of society, including the free application of any "machine" by any person to any use of which it is susceptible and, as Jefferson put it, "this right ought not to be taken from him and given to a monopolist." While Jefferson had lost on the broader idea of abrogating patent protection generally, the more limited idea that discoveries of new uses for old machines or processes were not patentable subject matter did hold sway for quite a while in leading U.S. judicial decisions. For example, in Roberts v. Ryer, 91 U.S. 150, 157 (1875), the Supreme Court held that "it is no new invention to use an old machine for a new purpose." In 1952, however, Congress explicitly overturned this line of judicial decisions. Specifically, it defined as a patentable process any "process, art, or method" and specified that this included "a new use of a known process, machine, manufacture, composition of matter, or material." (35 U.S.C. sec. 100(b)). Of course, this 1952 amendment to the Patent Act laid the foundation for a significant expansion of "process" patents and specifically for the adoption of software patents. Why? Because, in a world of general-purpose computing devices, all kinds of existing machines and processes are "susceptible to new uses." Indeed, this is the very nature of software, which can apply to an almost infinite range of potential uses. Once the principle was established that such new uses fell within the statutory definition of "patentable subject matter," then a broad array of such patents could be issued, subject only to meeting other requirements of patentability such as novelty, non-obviousness, utility, etc. With the modern development of the free and open software movements, the old philosophical debate has taken on new life but the prospects of the "free" side winning this debate, in my view, are likely doubtful. The legal tradition is deeply entrenched in favor of patents, as are the commercial interests. One is left, then, with what amounts to a philosophical argument that patents (or at least process patents) are bad. Insofar as the law is concerned, the issue will be addressed in the Supreme Court's forthcoming decision in Bilski, expected this year. Beyond that, relevant arguments must be addressed to Congress, which does have the authority to redefine what constitutes patentable subject matter and hence the theoretical power to abolish software patents in general. Sounding off on blogs definitely furthers the momentum for change but a lot more would be needed to effect a change of view on issues that are so deeply rooted in U.S. history and legal tradition. So long as this remains primarily an ideological position of the free/open software movement, and nothing more, it will likely languish along with the old Jeffersonian sentiment that today sounds so quaintly out of date. I am not saying this in a patronizing way. For something to come of this besides just sounding off, a major shift in mindset has to occur in society generally, and I don't see any evidence of this as yet.

justinsb 17y ago

Yet another 'software patents are bad' piece without a single fact. Many disagreed to the point of retaliative downvoting with my blog post the other day ( http://news.ycombinator.com/item?id=1167926 http://news.ycombinator.com/item?id=1167926 ), but it was trying to make a fact-based case pro-patents; can't we at least try to argue from facts rather than hearsay on HN?

kiba 17y ago
It would seem to me that he is arguing from conjectures and logics. I think that deduction is a valid investigation technique, because mostly we can't investigate everything using induction. As for your argument in that post regarding Google, I would still say that even if a patent is non-frivolous, non-obvious, and innovative, it could still have a negative overall effect mostly because of the privileges that is afforded to inventors and innovators to silence the competition who may have come up with equally groundbreaking work. Innovative, non-frivolous patents still poses a danger to the open source software industry, which does not relies on patents to make their money. The patent system make us choose a kind of inventor and entrepreneur over the type that open up their secrecy to the world and become wealthy from it. That's the choice we're making if we choose the patent system over the market solution of intentional openness.

Create 17y ago

Building up a patent portfolio by engaging in defensive patenting cannot always protect against hold-up. -- Federal Trade Commission of the USA http://www.nosoftwarepatents.com/en/m/dangers/investment.html http://www.nosoftwarepatents.com/en/m/dangers/investment.htm...