13 ms·

End Software Patents (2007)

226 points by praveenscience 7y ago

GoblinSlayer 7y ago
This: http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_Purpose_Computer http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_... Software patents are a hack, they are really against the patent law. The patent law requires an invention of new hardware, which software obviously doesn't.
lidHanteyk 7y ago
Well, yes. Software is clearly not eligible for patent protection.
- dymk 7y ago
  “Clearly”? The current state of affairs indicates it’s anything but.
  - User23 7y ago
    Premise 1: Legally pure mathematical objects cannot be patented. Premise 2: Algorithms are pure mathematical objects. Tentative conclusion 1: Algorithms cannot be patented. Premise 3: Hahaha, lawyers don't know math but they do know billable hours. Firm conclusion: See figure 1[1]. [1] https://www.dourish.com/goodies/see-figure-1.html https://www.dourish.com/goodies/see-figure-1.html
    - abtinf 7y ago
      What is the hidden premise that precludes the alternative conclusion—that “pure mathematical objects” ought to be patentable?
      - gpm 7y ago
        The text of the law.
    - CalChris 7y ago
      The USPTO disagrees. "Although the Supreme Court has not delimited the precise contours of the abstract idea exception, it is clear from the body of judicial precedent that software and business methods are not excluded categories of subject matter." https://www.uspto.gov/web/offices/pac/mpep/s2106.html https://www.uspto.gov/web/offices/pac/mpep/s2106.html
    - joshuamorton 7y ago
      Algorithms can apply to much more than just software though. The process to make a given drug, or a specialized manufacturing process is still just an algorithm. Doing so at scale requires specialized tools, but so too for software patents.
      - humanrebar 7y ago
        Cooking recipes are algorithms too. Why aren't those patentable?
        deleted 7y ago
        [deleted]
        NikolaeVarius 7y ago
        They are, its just stupid hard to do so. IE: Fast Food Franchise "Secret Recipes" https://www.uspto.gov/custom-page/inventors-eye-advice-1 https://www.uspto.gov/custom-page/inventors-eye-advice-1
    - solinent 7y ago
      > Premise 2: Algorithms are pure mathematical objects. Algorithms can actually produce a real physical result, whereas mathematics exists beyond pen and paper. Algorithms that we (programmers) construct usually aren't done in terms of Turing machines or the lambda calculus. Therefore they're not purely mathematical. > Premise 3: Hahaha, lawyers don't know math but they do know billable hours. A patent lawyer I worked with had a mechannical engineering degree. I'm fairly sure he knew some math that I didn't.
      - User23 7y ago
        > Algorithms can actually produce a real physical result, whereas mathematics exists beyond pen and paper You are confusing the algorithm, which is an abstract procedure with no physical existence, with the set of possible processes that can implement it. > Algorithms that we (programmers) construct usually aren't done in terms of Turing machines or the lambda calculus. Therefore they're not purely mathematical Sloppy math is still math. Any program that an interpreter or compiler will accept is a mathematical object. If it weren't, it couldn't be parsed. That said, it is possible for a mathematical statement to be undefined, ambiguous, or erroneous.
    - pron 7y ago
      This is often repeated but wrong, because this is not how patents work. You could present any patent as a discovery of a "pure" fact about physics or mathematics: a particular configuration of physical objects would behave in this particular way according to the laws of physics, or, a certain abstract dynamical system described by this formula (i.e. algorithm) has these properties. The thing is, the patent doesn't protect the discovery or the knowledge or the fact itself. Even with a patent, anyone is free to study the design/algorithm, teach it, write about it, print it on a T-shirt etc.; in fact, patents are meant to help spread the knowledge they contain -- in exchange for a certain protection. What the patent protects is the exploitation of the discovery in some physical product for certain ends, i.e. not the fact about the universe/mathematics, but its practical implementation. So in this respect software patents and, say, mechanical patents are exactly the same: a monopoly is granted for some years on the practical exploitation of certain physical/chemical/biological/mathematical facts in certain ways and for certain means.
      - lidHanteyk 7y ago
        Sure. So, an algorithm isn't patentable. But a particular encoding of that algorithm might be patentable by your logic? However, copyright, not patent rights, protect encoded algorithms! There are many possible programs, but only some are useful. In this sense, patents might protect only those useful programs, and not the useless programs. However, you'd have to write new law to cover this case. Laws written before the advent of information theory are missing fundamental truths of mathematics. In this case, given that patent law already knows about mathematics, surely patent law is prepared to yield.
        pron 7y ago
        > So, an algorithm isn't patentable. But a particular encoding of that algorithm might be patentable by your logic? However, copyright, not patent rights, protect encoded algorithms! No, an algorithm is very much patentable (and not copyrightable, while a program is copyrightable but not patentable), it's just that the patent does not protect the notion or knowledge or mathematical fact of the algorithm -- in fact, it very much makes it public -- it's just gives a monopoly for exploiting the algorithm for some business benefit. > Laws written before the advent of information theory are missing fundamental truths of mathematics. In this case, given that patent law already knows about mathematics, surely patent law is prepared to yield. As I said, this reasoning is irrelevant. Every patent is some "truth" of physics, chemistry or mathematics, but the truth is not what's being granted a monopoly. Everyone is free to know it or teach it. Rather, it is its implementation for profit that's protected. Moreover, because I believe that in the US patents apply to physical inventions, the language of software always describes some computing device computing an algorithm. It seems that technically everyone is allowed to perform the algorithm by hand, even to exploit it for profit. Software patents are therefore not different in principle than any other kind of patent, but they are different in practice, simply because of how they've come to be used.
- egdod 7y ago
  If you think there's anything clear about the demarcation between patentable vs unpatentable subject matter, you haven't read the caselaw. It's an unintelligible mess.
aledalgrande 7y ago
Curios: how many investors still consider software patents as a pro/asset for a startup?
- Uehreka 7y ago
  I’m sure many (even those who are philosophically opposed to patents) do. It’s an unfortunate fact that things that are bad aren’t necessarily unprofitable. Which is why we need to take the option to get software patents off the table, the market isn’t going to do this on its own.
- 2_listerine_pls 7y ago
  Curious: Would you spend millions of dollars in research if your know it will be copied and you won't be able to make a dime back?
  - aledalgrande 7y ago
    What startup spends millions of dollars in research? And if the patentable is so easy to copy, it should not be patentable.
    - wiggles_md 7y ago
      Startups in medtech, biotech, or advanced materials, among others.
      - aledalgrande 7y ago
        We are talking about software patents here.
        2_listerine_pls 7y ago
        Do researchers work for free?
deogeo 7y ago
An argument that's rarely made: Almost everyone whose work would be protected by software patents, is fervently opposed to them. Except patent lawyers and multinationals. That should tell you everything on whether they're a good idea.
- CalChris 7y ago
  Ask Larry Page if he is fervently opposed to software patents. https://patents.google.com/patent/US6285999B1/en https://patents.google.com/patent/US6285999B1/en
  - opportune 7y ago
    >multinationals Also the nature of patents incentivizes you to claim patents even if you fundamentally disagree with the patent system, if you want to continue doing business. Otherwise a troll or competitor could try to shut you down
  - NeedMoreTea 7y ago
    It's years since it was his work. Now it's protecting the turf of the large corporate, from any whiff of competition by fair means and foul.
    - CalChris 7y ago
      About 20 years. In fact it expired on June 2 and you’re free to use it. You are free to use the work that he was incented to do. His work is now our work.
  - cameronbrown 7y ago
    The alternative is being defenceless when a patent troll comes around. Hate the game not the players. I'd be 100% for ending software patents. We already ban patents on mathematics.
    - mcny 7y ago
      Why not ban all patents altogether?
deleted 7y ago
[deleted]
siphor 7y ago
i get a large majority of software patents should not exist, but are there no software ideas that are truly patentable? what makes a "physical" patent you consider valid different from a software patent? I know there is some difference, it's hard to formalize though. Say someone spent years building a compression algorithm 10x better than everyone else's in some novel way and then tried to capitalize on it. And then google just copied the idea and put this guys company out of business. Isn't that bad?
- shujito 7y ago
  One still could be able to license the software while keeping it closed source until one decides to let people use it freely.
  - deleted 7y ago
    [deleted]
- humanrebar 7y ago
  > Isn't that bad? Yes. You don't invent or build math; you discover it. It's nature. Patenting DNA is also silly for similar reasons.
  - hgoel 7y ago
    You do however build software. Even with DNA, if you manually assemble a sequence, is it not something you've built? DNA imo is special not because of being something you discover, but because it's an integral part of everyone and the process by which sequences occur naturally is too random to guarantee that a sequence will remain unique. Software on the other hand, is still the product of a thinking mind, so it should be given proper protections as intellectual property. However, the standard for the patent needs to be much higher than it is right now (presumably because those determining the uniqueness of the idea aren't all that experienced or up to date with the industry the idea relates to). Either that or a better way for people to contest the validity of patents.
    - 7y ago
gohbgl 7y ago
Everything they listed is also true for non-software patents. End all patents.
- egdod 7y ago
  This is the only intellectually honest case for ending software patents. Methods have been patentable for as long as we've had a patent system--why should they become unpatentable because they're machine-implemented?
  - kemitchell 7y ago
    Perhaps methods should become unpatentable when implemented by machine because the cost-benefit of the patent bargain in current context no longer advances the public policy behind patent law.
    - gohbgl 7y ago
      As far as I know there is no evidence that the patent system as a whole is a net benefit to society. The negative effects are clearly visible like the formation of oligopolies, litigation costs, licensing costs and so on. So unless one can present data that the positives outweigh the negatives the whole system should be abolished. As a practical matter it might be much easier to end software patents than it is to end all patents.
      - rayiner 7y ago
        I mean adoption by nearly every legal system in the world is a pretty good indicator. You’d think developing economies would be trying to unchain their competitiveness by getting rid of patents, but as China outgrows its phase of stealing technology and starts the phase of developing original technology, it’s developing its patent law and providing for enforcement.
        fulafel 7y ago
        Developing economies get pressured to implement western style IPR regimes as part of trade negotiations, to the point of getting draft legislation written by foreign powers. See: https://www.grain.org/article/entries/399-information-feudalism-who-owns-the-knowledge-economy https://www.grain.org/article/entries/399-information-feudal... (whole book: https://www.anu.edu.au/fellows/pdrahos/books/Information%20Feudalism.pdf https://www.anu.edu.au/fellows/pdrahos/books/Information%20F...)
eof 7y ago
Software should be copyrighted not patented. I don’t think it’s any more complicated than that.
- deleted 7y ago
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- deleted 7y ago
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- pnw_hazor 7y ago
  Patents are about protecting how something works. Copyright doesn't do that at all.
  - eof 7y ago
    That’s not true. Copyright of source code would protect your invention. However if someone else wrote their own code to do the same thing, it would not be protected, which is the point.
    - pnw_hazor 7y ago
      It protects the code not the invention. Rewrite from C to java and you get around copyright. With respect to patents, inventions are about how you do something. Whether it is written in java or C is irrelevant. Similarly, for gadget patents, the material it is manufactured out of doesn't matter.
      - eof 7y ago
        Perhaps that’s an edge case not well covered? Is my copyrighted English work not covered if someone translates it to another language?
        jcranmer 7y ago
        Translation is one of the canonical examples of derivatives works [1], and one of the rights implied by copyright is the right to control the production of derivative works. The question of rewriting a library in a different programming language has never been litigated, to my knowledge, so there's no precedent as to whether or not it would violate copyright. The customary practice is to assume that the code produced by anyone who has seen the original source code would qualify as a derivative work, and therefore to rely on a clean-room implementation, where one group inspects the source code and builds a spec that a second group uses to implement the replacement. In the absence of legal precedent, the customary practice tends to be accorded legal preference, so it's reasonably likely that a court would rule that somebody who looks at a C implementation and produces a Java implementation without any intermediaries would constitute a derivative work and therefore be in violation of copyright if not properly authorized by the copyright owner. [1] It's literally the first example given in the US law.
WilliamEdward 7y ago
I think the patent system is broken, not software patents. Patent trolling is blatant abuse, and none of these loopholes ever get fixed because patenting is a one hundred year old legal concept that hasn't been touched in decades. Why not create a better system? To patent your idea it should have to be non-obvious; therefore pinch-to-zoom wouldn't be patentable. To patent your idea it would have to take a significant amount of work to implement. Maybe certain 'types' of ideas cant be used to litigate for financial compensation. Really theres so many ways the system could be better but i don't see the need to throw it out. People like having their ideas protected and valued. The concept is there, it's just been corrupted by corporate greed.
- chrismcb 7y ago
  Patents are supposed to be not obvious. Pinch to zoom it's an idea and shouldn't be patentable. The process of how you pinch to zoom is a different story though. The amount of work required shouldn't be an issue.
  - zmmmmm 7y ago
    Even then, I think the "process of pinch to zoom" is mostly about emulating nature and should be considered under the same idea as that you should not be able to patent a biological process. And if you say "well how you emulate is patentable" then I will say, there are only 2 choices: - there is only one way to implement it: then it is just an embodiment of the idea and shouldn't be patentable - there are multiple ways to implement it: then there is no point patenting them because somebody will just do it a different way and you have no protection ... except ... copyrights which are already what everyone uses for software.
- saberdancer 7y ago
  It's important to allow protection for ideas/products/software/drugs that take a large amount of investment to develop. If you spent 10 years and millions developing a better video compression algorithm, why there should not be a way for you to offer it to market, but at the same time have it protected against copying. Similar problem occurs in biotech, if you developed a drug and proved it helps cure a disease, usually it is trivially simple to create the same drug (generics). This means that without a patent, companies would lose part of the incentive to innovate. However, if your patent is simple, it's an idea like pinch to zoom that realistically didn't need millions in research to develop, then that patent should not be granted as the purpose of the patent is not return on investment from research.
chris5745 7y ago
If software patents were “ended”, what would replace them? Trade secrets? Everything out in the open under a use license?
- deogeo 7y ago
  No need to speculate - the EU, Russia, India, South Africa, and New Zealand have no patents on pure software - I'm sure there are other places too.
  - chris5745 7y ago
    So what do software inventors in these countries do with their inventions? Edit - It seems to me that there’s clamoring about software patents without suggestions for alternatives. Were software patents always disallowed in these countries? If not, what was the overall effect of “ending” them? Was there innovation and business activity, before and after? Edit2 - https://patents.google.com/patent/RU2470358C2/en https://patents.google.com/patent/RU2470358C2/en
    - magashna 7y ago
      Sell support
    - reitzensteinm 7y ago
      What software inventors? All I see are people standing on the shoulders of giants claiming the next six feet as their own.
    - NeedMoreTea 7y ago
      We don't consider 99% of them patentable. They're a technique, a style, an algorithm. No more an invention than a simple method for doing arithmetic. Software can rarely come under a patent in the EU, but there is a very high bar to reach first. It's not my field so I'll avoid trying to explain where that bar is.
    - deogeo 7y ago
      > software inventors Are those the companies that force patented technology, to the exclusion of free alternatives, into widely used standards, so that they can charge everyone that wants to read a FAT32 filesystem? The ones that patent an idea, not method, like one-click buying, or minigames in loading screens? The ones that have some overly broad, unreadable patent, that would be invalidated in court due to countless prior art, but use it to extort businesses for amounts too small to make litigation worthwhile? Or is this some mythical inventor, that creates something actually useful, and licenses it to others at fair prices? Something that improves the state of the art, but bizarrely does not rely on any prior patents in that area (otherwise existing companies could simply block the use of the new method)? And this someone isn't already employed at some company where the invention was made during the normal course of R&D (because otherwise, you already have your answer as to what software inventors do - write software/do R&D for existing companies that need it). How many such people are there? Enough to justify the enormous headache of software patents?
solinent 7y ago
Software occupies an interesting boundary between engineering and mathematics. Software patents for trivial things typically do not exist, it is just a misreading of the patent--they start very generally and end up in specifics. As long as you change some of the particulars, you are allowed to file for a new patent. Just because innovation happened without software patents does not mean that higher quality innovations can not exist with patents. I know of algorithms which give certain companies an edge in their flagship international products. If these algorithms were able to be patented globally, it would be a large benefit to the entire industry. Since China is part of this market, the company does not patent this algorithm and instead keeps it as a trade secret. I think in this case it would be better if the algorithm was patented. We need to distinguish this case where the patent is truly non-trivial and would not be able to be re-created without great expense. It's very difficult to evaluate this, especially for those who aren't experienced. Honestly, I don't think "end of all software patents" is the solution here. Imagine if NNs were developed completely as a trade secret.
- rayiner 7y ago
  Imagine if the secret sauce that makes Apple’s trackpads the best had been patented and disclosed. It’d be out of patent soon and we could have Windows laptops with decent trackpads.
  - solinent 7y ago
    Exactly, the whole point of patents is to avoid trade secrets. Trade secrets create much worse monopolies than the existing patent system could ever create, since their length is indeterminate. It's also hard to evaluate the ethics of a product directly without knowing its machinery.
    - thayne 7y ago
      > since their length is indeterminate in the software world 20 years is almost as bad. by the time the patent expires the patented algorithm may no longer be relevant
  - 7y ago
whatshisface 7y ago
If I invented a new process for producing an expensive drug, it could probably be implemented as a program for a robot arm. Would that method be impossible for me to patent if software patents were banned?
- dboreham 7y ago
  You should try that on the Supreme Court. Oh, wait...
derekp7 7y ago
I'd be happy with and end to low quality patents (i.e., doing "X" but on the internet). Basically, any patent that an average software developer would violate just in their normal course of work (without prior knowledge of the specifics of a given patent, but possibly with knowledge of the problem to be solved). Of course, patent law has this covered already with the "non obvious to those skilled in the art", but this seems to have no meaning anymore.
- welder 7y ago
  > Basically, any patent that an average software developer would violate just in their normal course of work By definition that's every software patent, given the same problem to solve. Donate: http://endsoftwarepatents.org/donate http://endsoftwarepatents.org/donate
  - derekp7 7y ago
    What about ones like the RSA patent? From what I understand, the requirements were laid out ages ago, but it wasn't known if any algorithm could meet those requirements until the RSA algorithm was developed. Of course, RSA is just math, and patent law already forbids patents on math (but somehow unless it is math related to computers). But that was just the first example off the top of my head of algorithms that took a bit of work to develop (just like many other encryption algorithms, or ML algorithms, etc).
techsin101 7y ago
It should be outlawed because burden to find out if someone has copyrighted this solution is too much
WalterBright 7y ago
It's interesting to consider that the US industrial revolution got its start by stealing patented ideas from Britain.
dang 7y ago
A small thread from 2009: https://news.ycombinator.com/item?id=492233 https://news.ycombinator.com/item?id=492233
craigsmansion 7y ago
Let's not pussyfoot around then. Let's enforce software patents rigorously, and do it retroactively. Now we can make it easy on ourselves and cut a single cheque of what amounts to basically all the value in the world to Don Knuth. I'm sure he can pass various bits on to the other stake holders. Congratulations: - The technology company you work for is now out of business, you're jobless. - Don Knuth is now Emperor of the planet. ... which sounds like a pretty good state of affairs, really. Satire isn't supposed to end up like that. However, bottom line remains: no one who would be a real stakeholder in the field is in favour of software patents. Software is mathematical; again, no experts have ever argued software isn't mathematics, almost by definition.
- Tomte 7y ago
  Knuth did invent many algorithms, but it's still a miniscule part of his oeuvre. Knuth is so fundamental to computer science, because he sighted, assessed, categorized and published the main body of the field. That's curation, not invention.
- jacques_chester 7y ago
  I'm a stakeholder in the field, I'm in favour of software patents in general with allowance for the need for ongoing reform and improvement. Unless I'm not a real stakeholder. What's the definition of that?
deleted 7y ago
[deleted]
Animats 7y ago
We've paid a high price for letting the anti-patent faction kill the value of patents. - VCs used to be about finding someone with a new technology and a patent, then funding them to commercialize it. Now they're about buying market share, losing money on every sale and making it up in volume. When VCs funded real technology, from about 1970 to 2000, they made money as a class. Now they lose money as a class. - Everything is a trade secret now. When patents were strong, you could disclose how things worked. With weak patents, NDAs are a bigger deal than ever. Right to repair suffers. Companies use unmarked components to inhibit reverse engineering. - Trade secret law has criminal provisions, which patent law does not. You can go to jail for supposedly stealing your employer's technology, even if you just went to work for a competitor. Like Sergey_Aleynikov, and possibly Anthony Levandowski. - Most of the fuss was about business method patents, but those were prohibited years ago. That's a dead issue. - Patents are for 20 years, then it's public domain. Trade secrets are forever. The "America Invents Act" made it hard to maintain a patent. Now you can face repeated challenges in post-grant proceedings. China now has tougher patent laws than the US does. In China, you can routinely get injunctions to shut down an infringer. [1] https://en.wikipedia.org/wiki/Sergey_Aleynikov https://en.wikipedia.org/wiki/Sergey_Aleynikov
zmmmmm 7y ago
I think its possible to have a good software patent. However in my quite long experience in the software industry, I quite literally have never seen a software idea that was actually patented and which convincely passed the "skilled in the art" novelty test. Nearly everything I have seen would be logically thought of by someone even moderately skilled in the art if presented with the same requirements. So I think the conclusion is, even if there are a few "good apples" if the barrel is full of 98% "bad apples", you really should throw out the whole barrel.
- GoblinSlayer 7y ago
  Maybe apply some simple formal criterion, like if function is implemented in under 100kloc, then it's trivial and invalidates the patent.
  - noahadavis 7y ago
    LOC requirements are easy to abuse and LOC != amount of originality
  - greyfade 7y ago
    I think it's fair to say that LoC is perhaps the least relevant metric it is possible to imagine. Languages differ in expressive power in ways that effectively mean that 200kLoC in one language is trivial to implement in a few thousand lines in another. Even within one language, two implementations of the same effective feature can be devised with similarly large differences in line count, if one prioritizes brevity over efficiency. A simple criterion like this would be laughably useless and abused to absurd degrees.
    - GoblinSlayer 7y ago
      I don't mean that 200kloc implementation proves non-triviality, I mean 100kloc implementation proves triviality. Also efficiency is achieved by implementation of specific algorithm, not by code formatting.
whatfreewords 7y ago
Patent documents can be very useful, particularly in areas where the patent is unenforceable. My team found the what3words patent very useful in reverse engineering the what3words geocoding system, and have open-sourced our results: https://whatfreewords.org/ https://whatfreewords.org/
- fncypants 7y ago
  I’m curious as to why you think the patent is unenforceable?
kingofpee 7y ago
Seems like nothing changed since 2007 with the approach towards software patents
zoobab 7y ago
In the US, the Alice supreme court decision killed most of them. But the USPTO changed its own rules to keep going. IBM and al are pushing for a law to restore them (the STRONGER patent act). EPO ignore the law and the courts to keep granting them. And european courts gonna be replaced by puppy captive Unitary Patent Courts.

This: http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_Purpose_Computer http://en.swpat.org/wiki/Just_a_Use_of_the_Patented_General_... Software patents are a hack, they are really against the patent law. The patent law requires an invention of new hardware, which software obviously doesn't.

lidHanteyk 7y ago

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

dymk 7y ago
“Clearly”? The current state of affairs indicates it’s anything but.
- User23 7y ago
  Premise 1: Legally pure mathematical objects cannot be patented. Premise 2: Algorithms are pure mathematical objects. Tentative conclusion 1: Algorithms cannot be patented. Premise 3: Hahaha, lawyers don't know math but they do know billable hours. Firm conclusion: See figure 1[1]. [1] https://www.dourish.com/goodies/see-figure-1.html https://www.dourish.com/goodies/see-figure-1.html
  - abtinf 7y ago
    What is the hidden premise that precludes the alternative conclusion—that “pure mathematical objects” ought to be patentable?
    - gpm 7y ago
      The text of the law.
  - CalChris 7y ago
    The USPTO disagrees. "Although the Supreme Court has not delimited the precise contours of the abstract idea exception, it is clear from the body of judicial precedent that software and business methods are not excluded categories of subject matter." https://www.uspto.gov/web/offices/pac/mpep/s2106.html https://www.uspto.gov/web/offices/pac/mpep/s2106.html
  - joshuamorton 7y ago
    Algorithms can apply to much more than just software though. The process to make a given drug, or a specialized manufacturing process is still just an algorithm. Doing so at scale requires specialized tools, but so too for software patents.
    - humanrebar 7y ago
      Cooking recipes are algorithms too. Why aren't those patentable?
      - deleted 7y ago
        [deleted]
      - NikolaeVarius 7y ago
        They are, its just stupid hard to do so. IE: Fast Food Franchise "Secret Recipes" https://www.uspto.gov/custom-page/inventors-eye-advice-1 https://www.uspto.gov/custom-page/inventors-eye-advice-1
  - solinent 7y ago
    > Premise 2: Algorithms are pure mathematical objects. Algorithms can actually produce a real physical result, whereas mathematics exists beyond pen and paper. Algorithms that we (programmers) construct usually aren't done in terms of Turing machines or the lambda calculus. Therefore they're not purely mathematical. > Premise 3: Hahaha, lawyers don't know math but they do know billable hours. A patent lawyer I worked with had a mechannical engineering degree. I'm fairly sure he knew some math that I didn't.
    - User23 7y ago
      > Algorithms can actually produce a real physical result, whereas mathematics exists beyond pen and paper You are confusing the algorithm, which is an abstract procedure with no physical existence, with the set of possible processes that can implement it. > Algorithms that we (programmers) construct usually aren't done in terms of Turing machines or the lambda calculus. Therefore they're not purely mathematical Sloppy math is still math. Any program that an interpreter or compiler will accept is a mathematical object. If it weren't, it couldn't be parsed. That said, it is possible for a mathematical statement to be undefined, ambiguous, or erroneous.
  - pron 7y ago
    This is often repeated but wrong, because this is not how patents work. You could present any patent as a discovery of a "pure" fact about physics or mathematics: a particular configuration of physical objects would behave in this particular way according to the laws of physics, or, a certain abstract dynamical system described by this formula (i.e. algorithm) has these properties. The thing is, the patent doesn't protect the discovery or the knowledge or the fact itself. Even with a patent, anyone is free to study the design/algorithm, teach it, write about it, print it on a T-shirt etc.; in fact, patents are meant to help spread the knowledge they contain -- in exchange for a certain protection. What the patent protects is the exploitation of the discovery in some physical product for certain ends, i.e. not the fact about the universe/mathematics, but its practical implementation. So in this respect software patents and, say, mechanical patents are exactly the same: a monopoly is granted for some years on the practical exploitation of certain physical/chemical/biological/mathematical facts in certain ways and for certain means.
    - lidHanteyk 7y ago
      Sure. So, an algorithm isn't patentable. But a particular encoding of that algorithm might be patentable by your logic? However, copyright, not patent rights, protect encoded algorithms! There are many possible programs, but only some are useful. In this sense, patents might protect only those useful programs, and not the useless programs. However, you'd have to write new law to cover this case. Laws written before the advent of information theory are missing fundamental truths of mathematics. In this case, given that patent law already knows about mathematics, surely patent law is prepared to yield.
      - pron 7y ago
        > So, an algorithm isn't patentable. But a particular encoding of that algorithm might be patentable by your logic? However, copyright, not patent rights, protect encoded algorithms! No, an algorithm is very much patentable (and not copyrightable, while a program is copyrightable but not patentable), it's just that the patent does not protect the notion or knowledge or mathematical fact of the algorithm -- in fact, it very much makes it public -- it's just gives a monopoly for exploiting the algorithm for some business benefit. > Laws written before the advent of information theory are missing fundamental truths of mathematics. In this case, given that patent law already knows about mathematics, surely patent law is prepared to yield. As I said, this reasoning is irrelevant. Every patent is some "truth" of physics, chemistry or mathematics, but the truth is not what's being granted a monopoly. Everyone is free to know it or teach it. Rather, it is its implementation for profit that's protected. Moreover, because I believe that in the US patents apply to physical inventions, the language of software always describes some computing device computing an algorithm. It seems that technically everyone is allowed to perform the algorithm by hand, even to exploit it for profit. Software patents are therefore not different in principle than any other kind of patent, but they are different in practice, simply because of how they've come to be used.
egdod 7y ago
If you think there's anything clear about the demarcation between patentable vs unpatentable subject matter, you haven't read the caselaw. It's an unintelligible mess.

aledalgrande 7y ago

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

Uehreka 7y ago
I’m sure many (even those who are philosophically opposed to patents) do. It’s an unfortunate fact that things that are bad aren’t necessarily unprofitable. Which is why we need to take the option to get software patents off the table, the market isn’t going to do this on its own.
2_listerine_pls 7y ago
Curious: Would you spend millions of dollars in research if your know it will be copied and you won't be able to make a dime back?
- aledalgrande 7y ago
  What startup spends millions of dollars in research? And if the patentable is so easy to copy, it should not be patentable.
  - wiggles_md 7y ago
    Startups in medtech, biotech, or advanced materials, among others.
    - aledalgrande 7y ago
      We are talking about software patents here.
      - 2_listerine_pls 7y ago
        Do researchers work for free?

deogeo 7y ago

An argument that's rarely made: Almost everyone whose work would be protected by software patents, is fervently opposed to them. Except patent lawyers and multinationals. That should tell you everything on whether they're a good idea.

CalChris 7y ago
Ask Larry Page if he is fervently opposed to software patents. https://patents.google.com/patent/US6285999B1/en https://patents.google.com/patent/US6285999B1/en
- opportune 7y ago
  >multinationals Also the nature of patents incentivizes you to claim patents even if you fundamentally disagree with the patent system, if you want to continue doing business. Otherwise a troll or competitor could try to shut you down
- NeedMoreTea 7y ago
  It's years since it was his work. Now it's protecting the turf of the large corporate, from any whiff of competition by fair means and foul.
  - CalChris 7y ago
    About 20 years. In fact it expired on June 2 and you’re free to use it. You are free to use the work that he was incented to do. His work is now our work.
- cameronbrown 7y ago
  The alternative is being defenceless when a patent troll comes around. Hate the game not the players. I'd be 100% for ending software patents. We already ban patents on mathematics.
  - mcny 7y ago
    Why not ban all patents altogether?

deleted 7y ago

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siphor 7y ago

i get a large majority of software patents should not exist, but are there no software ideas that are truly patentable? what makes a "physical" patent you consider valid different from a software patent? I know there is some difference, it's hard to formalize though. Say someone spent years building a compression algorithm 10x better than everyone else's in some novel way and then tried to capitalize on it. And then google just copied the idea and put this guys company out of business. Isn't that bad?

shujito 7y ago
One still could be able to license the software while keeping it closed source until one decides to let people use it freely.
- deleted 7y ago
  [deleted]
humanrebar 7y ago
> Isn't that bad? Yes. You don't invent or build math; you discover it. It's nature. Patenting DNA is also silly for similar reasons.
- hgoel 7y ago
  You do however build software. Even with DNA, if you manually assemble a sequence, is it not something you've built? DNA imo is special not because of being something you discover, but because it's an integral part of everyone and the process by which sequences occur naturally is too random to guarantee that a sequence will remain unique. Software on the other hand, is still the product of a thinking mind, so it should be given proper protections as intellectual property. However, the standard for the patent needs to be much higher than it is right now (presumably because those determining the uniqueness of the idea aren't all that experienced or up to date with the industry the idea relates to). Either that or a better way for people to contest the validity of patents.
  - 7y ago

gohbgl 7y ago

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

egdod 7y ago
This is the only intellectually honest case for ending software patents. Methods have been patentable for as long as we've had a patent system--why should they become unpatentable because they're machine-implemented?
- kemitchell 7y ago
  Perhaps methods should become unpatentable when implemented by machine because the cost-benefit of the patent bargain in current context no longer advances the public policy behind patent law.
  - gohbgl 7y ago
    As far as I know there is no evidence that the patent system as a whole is a net benefit to society. The negative effects are clearly visible like the formation of oligopolies, litigation costs, licensing costs and so on. So unless one can present data that the positives outweigh the negatives the whole system should be abolished. As a practical matter it might be much easier to end software patents than it is to end all patents.
    - rayiner 7y ago
      I mean adoption by nearly every legal system in the world is a pretty good indicator. You’d think developing economies would be trying to unchain their competitiveness by getting rid of patents, but as China outgrows its phase of stealing technology and starts the phase of developing original technology, it’s developing its patent law and providing for enforcement.
      - fulafel 7y ago
        Developing economies get pressured to implement western style IPR regimes as part of trade negotiations, to the point of getting draft legislation written by foreign powers. See: https://www.grain.org/article/entries/399-information-feudalism-who-owns-the-knowledge-economy https://www.grain.org/article/entries/399-information-feudal... (whole book: https://www.anu.edu.au/fellows/pdrahos/books/Information%20Feudalism.pdf https://www.anu.edu.au/fellows/pdrahos/books/Information%20F...)

eof 7y ago

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

deleted 7y ago
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pnw_hazor 7y ago
Patents are about protecting how something works. Copyright doesn't do that at all.
- eof 7y ago
  That’s not true. Copyright of source code would protect your invention. However if someone else wrote their own code to do the same thing, it would not be protected, which is the point.
  - pnw_hazor 7y ago
    It protects the code not the invention. Rewrite from C to java and you get around copyright. With respect to patents, inventions are about how you do something. Whether it is written in java or C is irrelevant. Similarly, for gadget patents, the material it is manufactured out of doesn't matter.
    - eof 7y ago
      Perhaps that’s an edge case not well covered? Is my copyrighted English work not covered if someone translates it to another language?
      - jcranmer 7y ago
        Translation is one of the canonical examples of derivatives works [1], and one of the rights implied by copyright is the right to control the production of derivative works. The question of rewriting a library in a different programming language has never been litigated, to my knowledge, so there's no precedent as to whether or not it would violate copyright. The customary practice is to assume that the code produced by anyone who has seen the original source code would qualify as a derivative work, and therefore to rely on a clean-room implementation, where one group inspects the source code and builds a spec that a second group uses to implement the replacement. In the absence of legal precedent, the customary practice tends to be accorded legal preference, so it's reasonably likely that a court would rule that somebody who looks at a C implementation and produces a Java implementation without any intermediaries would constitute a derivative work and therefore be in violation of copyright if not properly authorized by the copyright owner. [1] It's literally the first example given in the US law.

WilliamEdward 7y ago

I think the patent system is broken, not software patents. Patent trolling is blatant abuse, and none of these loopholes ever get fixed because patenting is a one hundred year old legal concept that hasn't been touched in decades. Why not create a better system? To patent your idea it should have to be non-obvious; therefore pinch-to-zoom wouldn't be patentable. To patent your idea it would have to take a significant amount of work to implement. Maybe certain 'types' of ideas cant be used to litigate for financial compensation. Really theres so many ways the system could be better but i don't see the need to throw it out. People like having their ideas protected and valued. The concept is there, it's just been corrupted by corporate greed.

chrismcb 7y ago
Patents are supposed to be not obvious. Pinch to zoom it's an idea and shouldn't be patentable. The process of how you pinch to zoom is a different story though. The amount of work required shouldn't be an issue.
- zmmmmm 7y ago
  Even then, I think the "process of pinch to zoom" is mostly about emulating nature and should be considered under the same idea as that you should not be able to patent a biological process. And if you say "well how you emulate is patentable" then I will say, there are only 2 choices: - there is only one way to implement it: then it is just an embodiment of the idea and shouldn't be patentable - there are multiple ways to implement it: then there is no point patenting them because somebody will just do it a different way and you have no protection ... except ... copyrights which are already what everyone uses for software.
saberdancer 7y ago
It's important to allow protection for ideas/products/software/drugs that take a large amount of investment to develop. If you spent 10 years and millions developing a better video compression algorithm, why there should not be a way for you to offer it to market, but at the same time have it protected against copying. Similar problem occurs in biotech, if you developed a drug and proved it helps cure a disease, usually it is trivially simple to create the same drug (generics). This means that without a patent, companies would lose part of the incentive to innovate. However, if your patent is simple, it's an idea like pinch to zoom that realistically didn't need millions in research to develop, then that patent should not be granted as the purpose of the patent is not return on investment from research.

chris5745 7y ago

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

deogeo 7y ago
No need to speculate - the EU, Russia, India, South Africa, and New Zealand have no patents on pure software - I'm sure there are other places too.
- chris5745 7y ago
  So what do software inventors in these countries do with their inventions? Edit - It seems to me that there’s clamoring about software patents without suggestions for alternatives. Were software patents always disallowed in these countries? If not, what was the overall effect of “ending” them? Was there innovation and business activity, before and after? Edit2 - https://patents.google.com/patent/RU2470358C2/en https://patents.google.com/patent/RU2470358C2/en
  - magashna 7y ago
    Sell support
  - reitzensteinm 7y ago
    What software inventors? All I see are people standing on the shoulders of giants claiming the next six feet as their own.
  - NeedMoreTea 7y ago
    We don't consider 99% of them patentable. They're a technique, a style, an algorithm. No more an invention than a simple method for doing arithmetic. Software can rarely come under a patent in the EU, but there is a very high bar to reach first. It's not my field so I'll avoid trying to explain where that bar is.
  - deogeo 7y ago
    > software inventors Are those the companies that force patented technology, to the exclusion of free alternatives, into widely used standards, so that they can charge everyone that wants to read a FAT32 filesystem? The ones that patent an idea, not method, like one-click buying, or minigames in loading screens? The ones that have some overly broad, unreadable patent, that would be invalidated in court due to countless prior art, but use it to extort businesses for amounts too small to make litigation worthwhile? Or is this some mythical inventor, that creates something actually useful, and licenses it to others at fair prices? Something that improves the state of the art, but bizarrely does not rely on any prior patents in that area (otherwise existing companies could simply block the use of the new method)? And this someone isn't already employed at some company where the invention was made during the normal course of R&D (because otherwise, you already have your answer as to what software inventors do - write software/do R&D for existing companies that need it). How many such people are there? Enough to justify the enormous headache of software patents?

solinent 7y ago

Software occupies an interesting boundary between engineering and mathematics. Software patents for trivial things typically do not exist, it is just a misreading of the patent--they start very generally and end up in specifics. As long as you change some of the particulars, you are allowed to file for a new patent. Just because innovation happened without software patents does not mean that higher quality innovations can not exist with patents. I know of algorithms which give certain companies an edge in their flagship international products. If these algorithms were able to be patented globally, it would be a large benefit to the entire industry. Since China is part of this market, the company does not patent this algorithm and instead keeps it as a trade secret. I think in this case it would be better if the algorithm was patented. We need to distinguish this case where the patent is truly non-trivial and would not be able to be re-created without great expense. It's very difficult to evaluate this, especially for those who aren't experienced. Honestly, I don't think "end of all software patents" is the solution here. Imagine if NNs were developed completely as a trade secret.

rayiner 7y ago
Imagine if the secret sauce that makes Apple’s trackpads the best had been patented and disclosed. It’d be out of patent soon and we could have Windows laptops with decent trackpads.
- solinent 7y ago
  Exactly, the whole point of patents is to avoid trade secrets. Trade secrets create much worse monopolies than the existing patent system could ever create, since their length is indeterminate. It's also hard to evaluate the ethics of a product directly without knowing its machinery.
  - thayne 7y ago
    > since their length is indeterminate in the software world 20 years is almost as bad. by the time the patent expires the patented algorithm may no longer be relevant
- 7y ago

whatshisface 7y ago

If I invented a new process for producing an expensive drug, it could probably be implemented as a program for a robot arm. Would that method be impossible for me to patent if software patents were banned?

dboreham 7y ago
You should try that on the Supreme Court. Oh, wait...

derekp7 7y ago

I'd be happy with and end to low quality patents (i.e., doing "X" but on the internet). Basically, any patent that an average software developer would violate just in their normal course of work (without prior knowledge of the specifics of a given patent, but possibly with knowledge of the problem to be solved). Of course, patent law has this covered already with the "non obvious to those skilled in the art", but this seems to have no meaning anymore.

welder 7y ago
> Basically, any patent that an average software developer would violate just in their normal course of work By definition that's every software patent, given the same problem to solve. Donate: http://endsoftwarepatents.org/donate http://endsoftwarepatents.org/donate
- derekp7 7y ago
  What about ones like the RSA patent? From what I understand, the requirements were laid out ages ago, but it wasn't known if any algorithm could meet those requirements until the RSA algorithm was developed. Of course, RSA is just math, and patent law already forbids patents on math (but somehow unless it is math related to computers). But that was just the first example off the top of my head of algorithms that took a bit of work to develop (just like many other encryption algorithms, or ML algorithms, etc).

techsin101 7y ago

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

WalterBright 7y ago

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

dang 7y ago

A small thread from 2009: https://news.ycombinator.com/item?id=492233 https://news.ycombinator.com/item?id=492233

craigsmansion 7y ago

Let's not pussyfoot around then. Let's enforce software patents rigorously, and do it retroactively. Now we can make it easy on ourselves and cut a single cheque of what amounts to basically all the value in the world to Don Knuth. I'm sure he can pass various bits on to the other stake holders. Congratulations: - The technology company you work for is now out of business, you're jobless. - Don Knuth is now Emperor of the planet. ... which sounds like a pretty good state of affairs, really. Satire isn't supposed to end up like that. However, bottom line remains: no one who would be a real stakeholder in the field is in favour of software patents. Software is mathematical; again, no experts have ever argued software isn't mathematics, almost by definition.

Tomte 7y ago
Knuth did invent many algorithms, but it's still a miniscule part of his oeuvre. Knuth is so fundamental to computer science, because he sighted, assessed, categorized and published the main body of the field. That's curation, not invention.
jacques_chester 7y ago
I'm a stakeholder in the field, I'm in favour of software patents in general with allowance for the need for ongoing reform and improvement. Unless I'm not a real stakeholder. What's the definition of that?

deleted 7y ago

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Animats 7y ago

We've paid a high price for letting the anti-patent faction kill the value of patents. - VCs used to be about finding someone with a new technology and a patent, then funding them to commercialize it. Now they're about buying market share, losing money on every sale and making it up in volume. When VCs funded real technology, from about 1970 to 2000, they made money as a class. Now they lose money as a class. - Everything is a trade secret now. When patents were strong, you could disclose how things worked. With weak patents, NDAs are a bigger deal than ever. Right to repair suffers. Companies use unmarked components to inhibit reverse engineering. - Trade secret law has criminal provisions, which patent law does not. You can go to jail for supposedly stealing your employer's technology, even if you just went to work for a competitor. Like Sergey_Aleynikov, and possibly Anthony Levandowski. - Most of the fuss was about business method patents, but those were prohibited years ago. That's a dead issue. - Patents are for 20 years, then it's public domain. Trade secrets are forever. The "America Invents Act" made it hard to maintain a patent. Now you can face repeated challenges in post-grant proceedings. China now has tougher patent laws than the US does. In China, you can routinely get injunctions to shut down an infringer. [1] https://en.wikipedia.org/wiki/Sergey_Aleynikov https://en.wikipedia.org/wiki/Sergey_Aleynikov

zmmmmm 7y ago

I think its possible to have a good software patent. However in my quite long experience in the software industry, I quite literally have never seen a software idea that was actually patented and which convincely passed the "skilled in the art" novelty test. Nearly everything I have seen would be logically thought of by someone even moderately skilled in the art if presented with the same requirements. So I think the conclusion is, even if there are a few "good apples" if the barrel is full of 98% "bad apples", you really should throw out the whole barrel.

GoblinSlayer 7y ago
Maybe apply some simple formal criterion, like if function is implemented in under 100kloc, then it's trivial and invalidates the patent.
- noahadavis 7y ago
  LOC requirements are easy to abuse and LOC != amount of originality
- greyfade 7y ago
  I think it's fair to say that LoC is perhaps the least relevant metric it is possible to imagine. Languages differ in expressive power in ways that effectively mean that 200kLoC in one language is trivial to implement in a few thousand lines in another. Even within one language, two implementations of the same effective feature can be devised with similarly large differences in line count, if one prioritizes brevity over efficiency. A simple criterion like this would be laughably useless and abused to absurd degrees.
  - GoblinSlayer 7y ago
    I don't mean that 200kloc implementation proves non-triviality, I mean 100kloc implementation proves triviality. Also efficiency is achieved by implementation of specific algorithm, not by code formatting.

whatfreewords 7y ago

Patent documents can be very useful, particularly in areas where the patent is unenforceable. My team found the what3words patent very useful in reverse engineering the what3words geocoding system, and have open-sourced our results: https://whatfreewords.org/ https://whatfreewords.org/

fncypants 7y ago
I’m curious as to why you think the patent is unenforceable?

kingofpee 7y ago

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

zoobab 7y ago

In the US, the Alice supreme court decision killed most of them. But the USPTO changed its own rules to keep going. IBM and al are pushing for a law to restore them (the STRONGER patent act). EPO ignore the law and the courts to keep granting them. And european courts gonna be replaced by puppy captive Unitary Patent Courts.