8 ms·

The Supreme Court Should Invalidate Software Patents

296 points by praptak 15y ago

andreyf 15y ago
That would be nice, but I think that when there are big companies and billions of dollars at stake, things aren't so easy.
- sedev 15y ago
  That's the whole point of the article: the SCOTUS members don't have to be re-elected and are not going to be lobbyists after leaving the bench - they actually can do such a thing on principle, that's their whole role. Please read the article.
  - reverend_gonzo 15y ago
    However, that's not their job. The supreme Court's job is to make a decision based on the laws set on the books. They can't say, "Well, this version of the law would be better, so we'll go with that, but rather "Thus is what he law says". We need to educate Congress. Better yet, we need educated people in Congress.
    - sedev 15y ago
      I would argue that that is in practice their job, especially given the amount of ambiguity, both unavoidable and superfluous, in the legislation-as-written. I actually have a very strong dislike for Scalia because I think that his legal 'originalist' philosophy is pretty much like biblical 'literalism' - it's an interpretation that is (a) convenient to him and (b) denies the validity of all other interpretations in an underhanded way.
      - tsotha 15y ago
        I find originalism to be the only reasonable way to interpret the document. If the constitution doesn't say what you want it to say, then change it. Once you start changing the meaning of the words you defeat the purpose of having a written constitution.
        sedev 15y ago
        Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations. But you go ahead and ask James Madison what he thinks about LulzSec.
        tsotha 15y ago
        >Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. Yes, and so what? There's a huge gulf between legislation, which is meant to be crafted for the needs of the day and can be easily modified, and a constitution, which is a blueprint for how the government functions. Human nature hasn't changed in the last 300 years. Not one bit. >Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations. The other interpretations are illegitimate - there's nothing sneaky about it. They're nothing more than cruft added by people who didn't have the votes to actually change the document. "Adapting to the now" is precisely the purpose of legislation and also the reason the constitution places boundaries on that legislation.
        andreyf 15y ago
        Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. In some cases, perhaps. But where copyright, patents, or trademarks are concerned, the US Constitution is quite clear what their effect must be: congress may pass & enforce these laws "to promote the Progress of Science and useful Arts", and nothing more. In my opinion, the succinctness and simplicity of the Copyright Clause is almost timeless.
tsotha 15y ago
Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.
- mikeknoop 15y ago
  I take a more practical stance: the courts have the ability to fix the situation quicker.
  - tsotha 15y ago
    That's only practical in the short term. The courts already have too much power - there's no reason to give them more.
- dantheman 15y ago
  You are not allowed to patent math; software is math; hence software is not patentable.
  - chc 15y ago
    As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network. Am I wrong somewhere in there?
    - binarybits 15y ago
      No, a computer does that. You can patent a computer, you just can't patent the software it runs. Just as you can patent a CD player but you can't patent the music it plays.
    - o_nate 15y ago
      A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable but not patentable.
scottmp10 15y ago
I think that it will be very difficult to have serious patent reform for the software industry without having significant effects on other industries. So while it seems like the software industry is generally behind getting rid of patents, the changes will be very difficult to isolate to software and companies outside the field will likely oppose any significant changes. FWIW, I hope they make significant changes for software patents soon.
- mikeknoop 15y ago
  Can you speculate some companies who would take issue to the abolishment of software patents?
  - chollida1 15y ago
    I would imagine it would be anyone, or industry, who has a significant patent portfolio who worries that invalidating software patents would weaken their patent position. Both in dollar terms and legal terms.
    - scottmp10 15y ago
      Yes so there are likely some software companies that might have issues (depending on what the changes looked like) such as Microsoft, Oracle, IBM (not sure if these companies would object or not, just citing companies with large portfolios). Some non-software companies like pharmaceuticals almost certainly would oppose changes that would affect their ability to exercise their patents. Edit: A better example might be a company like Intel that has a lot of hardware patents. It is potentially difficult to change the patent laws to prohibit software patents without affecting hardware patents.
  - praptak 15y ago
    Excluding the patent extortion industry, any industry who believes it's hard to define a software patent. "I know one when I see it" might not cut it and there might be some nasty edge cases where an algorithm controls a physical process.
niels_olson 15y ago
Why does it have to be the supreme court? Why can't the industry tell Congress "This sucks, fix it", the way the military did with Don't ask, don't tell? VCs just aren't as good at that whole "leadership" thing as much as generals I guess? (yes, I'm trying to goad someone to action.)
- masklinn 15y ago
  > Why can't the industry tell Congress "This sucks, fix it" Because the part of the industry which has money and congressional ear either protected (by a huge patent portfolio) or in the game of using their patent portfolio aggressively. > the way the military did with Don't ask, don't tell? 1. the military is a major reason why DADT was introduced in the first place 2. apart from Mullen (who mostly punted the responsibility to congress), the military (active, retired officers really don't count) did not do anything until well into BO's term, even though repealing DADT was one of BO's campaign issues the military and DADT really is not a good example of "this sucks, fix it".
nostromo 15y ago
Of all the supreme court decisions, I wouldn't expect this to be drawn mostly on partisan lines. Yet the author makes a good case that the liberal judges would invalidate the patents and conservative judges (with Scalia an open question) would not. Why are conservative judges more likely to support software patents?
- shapoopy 15y ago
  They'll tend to see them as protecting the interests of business, which has, for whatever reason, become part and parcel of supporting the "free market" in contemporary American political culture.
  - amitparikh 15y ago
    and that's the biggest hypocrisy... what they are really supporting are the interests of existing businesses.
- almightygod 15y ago
  future prediction: the right will claim that it would hurt small businesses, as far from opposite this statement is. What they mean to say is it would hurt the profitable businesses that have lobbyists and fund their campaigns
- te_platt 15y ago
  Consider this quote from Scalia: 'You really can't judge judges unless you know the materials that they're working with. You can't say, "Oh, this is a good decision and this was a good Court," simply because you like the result. It seems to you that the person, who deserved to win, won. That's not the business judges are in. We don't sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you're a good judge, you don't really like the result you're reaching. You would rather that the other side had won, and it seems to you a foolish law. But in this job -- it's garbage in, garbage out. If it's a foolish law, you are bound by oath to produce a foolish result because it's not your job to decide what is foolish and what isn't. It's the job of the people across the street. So don't judge judges unless you really take the trouble to read the opinion and see what provisions of law were at issue and what they were trying to reconcile and whether they did an honest job of reconciling them, and if interpreting the words of the law in a fair fashion. That's what counts. Unless that's what you want your judges to do, you have a judiciary that's not worth much. You have a judiciary that is just making the law instead of being faithful to what the people have decided.' I know this is a broad generalization but typically a conservative judge goes for strict interpretation and a liberal judge goes for desired outcome.
draggnar 15y ago
That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously. - Benjamin Franklin
pg_bot 15y ago
A simpler solution would involve giving the defendant of patent litigation the option of making their suit winner takes all.(All of the court fees within reason are paid by the loser) This would keep software patents but reduce frivolous lawsuits.
- ohyes 15y ago
  And make it impossible for the little guy to, for example, sue Microsoft due to the potential huge legal fees. The issue here is that patents are being used for extortion, and none of these cases ever end up going to court. Maybe what would fix this would be to not allow private entities to pursue patent infringement cases with their own lawyers. Create a Bureau of patent infringement. Make it so that when a patent is infringed, you file a claim with the Bureau, and they asses validity of patent and assign damages. No litigation, no settlement, no patent lawyers involved. Perhaps we can defeat bureaucratic inefficiency with more bureaucratic inefficiency.
  - regularfry 15y ago
    Regulatory capture is the danger there.
  - pg_bot 15y ago
    How would that change make it any more difficult for a little guy to sue a big corporation? I think you have missed the part of within reason, Microsoft wouldn't be able to put an individual on the hook for all of their court fees just those that a judge deems valid to pay for the suit. This change would make the patent holder vet the validity of their patent before they can automatically sue, which is the goal we are looking for. A defendant would only exercise the option if they believed the claim to be frivolous for fear of losing in court. For legitimate cases the parties either go to court or settle.
euroclydon 15y ago
The SCOTUS ruled against the patentability of an algorithm which codified a certain hedging strategy in the Bilski case in 2010. This was believed to reinforce the invalidity of many software patents. http://en.wikipedia.org/wiki/In_re_Bilski http://en.wikipedia.org/wiki/In_re_Bilski
- jdp23 15y ago
  As the article discussed, Bilski was decided on very narrow grounds; and it relates to business model patents, not software patents.
timsally 15y ago
It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us. I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify is Diamond v. Diehr. That still wouldn't be the end of our patent problems though.
- anigbrowl 15y ago
  You underestimate how strong such an argument has to be to succeed. I wish I could upvote this wise advice ten times. even if patents made it to the top of the Supreme Court docket today and they justices interrupted their summer holidays tomorrow to consider the issue, a badly-thought-out case could just as easily end up extending patent terms to the 95 years that copyrights enjoy. Unfortunately, a great deal of legal and political debate in the US currently looks like this: http://www.youtube.com/watch?v=yo3uxqwTxk0 http://www.youtube.com/watch?v=yo3uxqwTxk0
- wccrawford 15y ago
  "Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us." Actually, that's exactly how the system works. Check and balances.
  - prayag 15y ago
    Not really. The court interprets the law as written by the congress. There are always some checks and balances while interpretation but that's not what the court is for.
    - CDRdude 15y ago
      Is that accurate in this case? My understanding is that the majority of the time, SCOTUS interprets the constitutionality of laws.
deleted 15y ago
[deleted]
chopsueyar 15y ago
Wrong branch.
WalterBright 15y ago
Yes, please.
deleted 15y ago
[deleted]
doctoboggan 15y ago
>Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing. Yet we still seems to have malpractice lawsuits all the time.
antidaily 15y ago
Here, I'll predict the vote: 5-4 not in favor.
Eliezer 15y ago
"How to define personhood is a legislative issue, and in the U.S. system, of course, laws are made by the Supreme Court." -- Brad Templeton, speaking of Artificial Intelligence
cft 15y ago
Big companies are interested in getting rid of patent trolls, because the defense against trolls is asymmetric. They would like a system that allows them to attack or defend against other large companies, while they remain immune from trolls, such as Intellectual Ventures and its off-springs, like LodSys. One solution would be a 2 year expiration on software patents. Another idea would be to demonstrate "substantial" sales for renewals.
brlewis 15y ago
Read Bilski people. Overall it was 5-4, but if you read the majority and the dissent, it was 9-0 on this sub-point: that State Street (not a Supreme Court decision) is bad precedent, and Benson, Flook and Diehr are good precedent. Diehr is only muddied because people choose to muddy it. I'm working on an essay that details this now.
petegrif 15y ago
This is a simple minded piece. It is so riddled with half digested bs I don't even know where to start with it. I guess I'll just pick on something so blindingly obvious that anyone with more than one braincell (which apparently does not include the author) would already find beyond question. Copyright protects the expression of an idea. This is an absolutely excellent form of protection when the expression of the idea is a huge part of its value. A piece of music, or a novel IS its expression. If you rewrite James Joyce's Ulysses in your own words you have lost Joyce's expression which is precisely what people value in the reading. Hence a work in which the expression is critical to its value is well protected by copyright. Software is not such a work. If someone spends years refining an invention and someone else reverse engineers it and yet changes the expression of the work copyright is no protection whatsoever because no-one using the work gives a rat's ass about the underlying expression. The idea that copyright is a meaningful protection for software is so laughable that anyone daft enough to take the idea seriously is clearly so appallingly badly informed that they don't deserve to be taken seriously.
- cft 15y ago
  So it follows from your argument that software patents currently promote innovation? If so, can you please make this logic more explicit?
- btilly 15y ago
  Clearly anyone who is willing to release software under the GPL does not agree with you about the meaninglessness of copyright protection for software. You would be amazed how many smart, and well-educated people have taken that copyright license, and others like it, seriously.
- o_nate 15y ago
  What if I was the first person to write a murder mystery in which the butler did it? Could I patent that plot device so no one else could use it? The point of copywriting code is not because people care so much about great coding style or variable names - it's to prevent the laziest forms of copying. If someone wants to invest the time and effort to reverse-engineer and rewrite a piece of software without copying any of the original code, the cost of doing so is sufficiently prohibitive that it might be easier just to rewrite it from scratch.
felix0702 15y ago
The bottom line: Supreme Court will never invalidate software patent. Image this if Supreme Court does invalidate software patent. A big sticker will be on the US map and shows, “Welcome to take all software inventions you want. All my software inventions are yours. Oh. BTW, yours in your country are still yours!” You see how this affects global competitions in software and finance industries. However, the current patent system still has room for improvements. 1. Software innovation changes too fast. The patent length should cut to 5 years (excluding the waiting time to get the patent). I have discussed this previously, http://news.ycombinator.com/item?id=2409917 http://news.ycombinator.com/item?id=2409917 2. Patent non-practicing entities (excluding public research institutions and schools) should be banned to sue anyone. However, even so Patent Trolls still know how to get around this. This just increases difficulty, but definitely won’t stop them. 3. Claim description has many ways to interpret. This is where the money is spent in litigation. If a standard structure and a list of words are allowed to be used in the software claim description, this probably makes easier and faster to find out if a software patent is valid. But I have to admit this is a hard problem to solve.
scott_s 15y ago
I find this argument unconvincing: Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline. The implicit argument is that creating software is inherently more creative than, say, creating a mechanical device. Yes, I take enjoyment in crafting my code so that its model is no more complex than it has to be, and in refactoring the code so that it is as clear as aesthetically pleasing as possible. But I imagine that people who design physical items feel the same way about their work. Please note that I am not disagreeing with conclusions - I have said nothing about his conclusions. But I think the overall argument is stronger without this one. With it, it feels like he started with a conclusion, and used whatever arguments lead to that conclusion.
- jerf 15y ago
  Actually, you can sort of formalize the argument: Software is eligible for copyright. Therefore, the law already recognizes that it is an expressive activity. A mechanical device is already not eligible for copyright. Software is the only thing I know covered by both patents and copyright. Sometimes people deny this to me when I say this online, but I haven't yet heard anybody come up with a concrete example that stood up to scrutiny. Is it really so stunning that two systems never designed to mesh, patents and copyright, turn out to in fact not mesh and produce a big mess? Is it really so horrible that software be only copyrightable and not patentable? Very few people are arguing that software should not be covered by any sort of IP protection, and I suspect the non-zero set of such people would be further shrunk if patents were removed from the equation. (Though I also guarantee, not eliminated.)
  - scott_s 15y ago
    Regarding my initial point, I think software falls under copyright solely because its written - I don't know if that's the argument now, but I imagine that was at least the initial reason for granting copyrights. Personally, I can find no meaningful difference between designing software and designing a mechanical device. For that reason, I don't like that argument. Your main point is interesting, but I'm not sure if I can completely go along with it. Consider, say, a mechanical latch. The design schematics for it fall under copyright. The latch itself falls under patent. The process for making the latch is to look at its design, and change your tools around to produce something of that design. Looking at it this way, I can see how software could be considered its own design schematic - yes, I'm aware that external documentation exists, so it's not a perfect analogy. But with software, there's no separation between "thing used to describe what should happen" and "thing that happens." I want to agree with your argument because it would provide a clean solution to the problem, but I don't think I can. Rather, I think the solution to the problem may require a results-oriented approach. That is, it may require us (as a society) to say, "The current patent scheme regarding software is harming innovation. We are going to change how patents apply to software to avoid this harm."
Finbarr 15y ago
I've been thinking this a lot recently. You can't patent software in the UK and it seems ridiculous that you can in the US.
Som 15y ago
...and stop the software cost by transactions/servers/CPU's.
Daniel_Newby 15y ago
This will never happen. Consider a mechanical timer in a washing machine. A timer that produces a novel washing cycle is certainly patentable. Consider a chain of electromechanical relays that produces the same cycle. Clearly it is just as patentable, and could be covered by a well-written version of the preceding patent. Consider the transistorized version of the preceding, with the relays replaced by transistors. Patentability: ditto. Consider a mask-programmed processor that produces the same cycle. (Mask-programmed means the program is hardwired into a metal pattern.) Patentability: ditto. Consider a flash-programmed version of the preceding that produces the same cycle. Patentability: ditto. Consider a volatile memory version of the preceding that produces the same cycle. Patentability: ditto. Why does this matter? Because in the coming age of nanomachines, "software" will frequently be embodied in custom mechanical machines, chemical reactions, interference patterns of light, and so forth. If software is unpatentable, then neither can you patent the special sauce that turns dirt into nanomachines.
- aroberge 15y ago
  This argument is simply wrong. You could use the same type of "progression" to get, at the root, basic theoretical physics or pure math. Yet, ideas and concept from these two fields are not patentable.
  - bfe 15y ago
    But his examples are all physical embodiments that perform a tangible real-world function. There's no continuous progression between those and pure math.
- nate_meurer 15y ago
  Your contrived chain of analogies ends in a total strawman. I think you intended the last item on your list to be pure software, but it's not. It's just an electronic version of the first item. No one is arguing that a complete electronic timer should not be patentable. The argument is whether the software alone should be patentable. The software by itself is NOT a timer. The timer's software is only the idea of the timer; it is the instructions, the observation of which allow the physical timer to function. There must still be a physical timer -- an assembly of physical parts that follows programmed instructions to provide a function. That entire assembly is what should be patented. The bare idea of the timer -- the steps that the timer takes while it's working, should not be patentable. That's what the article is proposing. Nowhere in your analogies is bare software addressed.
MetaMan 15y ago
As a software programmer I don't agree with this view that software patents are wrong in principle. There I said it! Software just as much as hardware can be used to "express" something new. I.e. to invent something. An patentable invention is a novel "solution to a problem which is NON-OBVIOUS to someone skilled in the art". The real issue with software patents is that they are granted far too easily. The test that seems to be applied by the patent examiners is "is that new?". However, they should be asking "given the problem the inventor is trying to solve is the solution (the invention) really non-obvious to some one skilled in the art?". However, even though I think that software patents, with the proper examination standards are just as valid as hardware patents I think there is a case for limiting (or even banning) ALL patents - NOT just software patents. One idea would be the requirement that a working prototype has to be produced and seen to be working. That, along with a proper non-obviousness test, would limit companies going for patent "land grabs".
- akeefer 15y ago
  As the article points out, software is also protected by copyright, and the article doesn't mention that it's covered by trade secret protection as well. The key difference is that patent protection applies to people who independently create something, whereas the other two protection methods don't. So when I hear engineers say they like patents, first of all I assume that they've never worked for a company that's been sued for patent infringement (and that they optimistically assume it only happens to other people), but then I try to find out why they don't think copyright protection is enough. Someone still can't legally steal your code without patent protection, because it'll be protected by copyright and trade secret protections. Even if they didn't copy your code, but they looked at it prior to implementing their own version, that would violate trade secret protections. In that respect, software is protected the same way that authors and musicians are protected. Authors invent characters, plots, worlds, objects, even words, but they don't get to patent them. And yet they're still protected from theft by copyright protections; you also can't just go and make a movie out of someone else's book without permission, though you can certainly make one that's similar. If it's good enough for authors and musicians, why isn't that good enough for software developers? So to sum that up: software development involves a creative act that deserves protection, but that's different than saying that the creative act deserves patent protection, which legally enjoins anyone else from independently developing the same thing, and which gives person A the legal right to take away the work that person B has done completely independently (or at least take away any money they've made from it and prevent them from selling it in the future). To justify taking away someone's work like that, you have to either be sure that the work is a copy or derivation of the original, which is almost never the case with software patent lawsuits, or you have to argue that even though it's unfair to deprive people of their work like that, that the benefits of the overall system are positive to society. That's an easier argument to make if 1% of patent lawsuits deprive people of the product of their independent work, but it's a pretty hard argument to make when 99% of them do.
aab1d 15y ago
In India we don't have the concept of software patents, unless some sort of hardware is involved. I am guessing that this is way better than the system where all business methods are patentable. This kills innovation. We should all just petition for change.
entrepreneurial 15y ago
Someone should just patent the patent: "conferring a right or title, esp. the sole right to make, use, or sell some invention" Joke

296 points by praptak 15y ago

That would be nice, but I think that when there are big companies and billions of dollars at stake, things aren't so easy.

sedev 15y ago
That's the whole point of the article: the SCOTUS members don't have to be re-elected and are not going to be lobbyists after leaving the bench - they actually can do such a thing on principle, that's their whole role. Please read the article.
- reverend_gonzo 15y ago
  However, that's not their job. The supreme Court's job is to make a decision based on the laws set on the books. They can't say, "Well, this version of the law would be better, so we'll go with that, but rather "Thus is what he law says". We need to educate Congress. Better yet, we need educated people in Congress.
  - sedev 15y ago
    I would argue that that is in practice their job, especially given the amount of ambiguity, both unavoidable and superfluous, in the legislation-as-written. I actually have a very strong dislike for Scalia because I think that his legal 'originalist' philosophy is pretty much like biblical 'literalism' - it's an interpretation that is (a) convenient to him and (b) denies the validity of all other interpretations in an underhanded way.
    - tsotha 15y ago
      I find originalism to be the only reasonable way to interpret the document. If the constitution doesn't say what you want it to say, then change it. Once you start changing the meaning of the words you defeat the purpose of having a written constitution.
      - sedev 15y ago
        Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations. But you go ahead and ask James Madison what he thinks about LulzSec.
        tsotha 15y ago
        >Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. Yes, and so what? There's a huge gulf between legislation, which is meant to be crafted for the needs of the day and can be easily modified, and a constitution, which is a blueprint for how the government functions. Human nature hasn't changed in the last 300 years. Not one bit. >Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations. The other interpretations are illegitimate - there's nothing sneaky about it. They're nothing more than cruft added by people who didn't have the votes to actually change the document. "Adapting to the now" is precisely the purpose of legislation and also the reason the constitution places boundaries on that legislation.
        andreyf 15y ago
        Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. In some cases, perhaps. But where copyright, patents, or trademarks are concerned, the US Constitution is quite clear what their effect must be: congress may pass & enforce these laws "to promote the Progress of Science and useful Arts", and nothing more. In my opinion, the succinctness and simplicity of the Copyright Clause is almost timeless.

tsotha 15y ago

Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.

mikeknoop 15y ago
I take a more practical stance: the courts have the ability to fix the situation quicker.
- tsotha 15y ago
  That's only practical in the short term. The courts already have too much power - there's no reason to give them more.
dantheman 15y ago
You are not allowed to patent math; software is math; hence software is not patentable.
- chc 15y ago
  As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network. Am I wrong somewhere in there?
  - binarybits 15y ago
    No, a computer does that. You can patent a computer, you just can't patent the software it runs. Just as you can patent a CD player but you can't patent the music it plays.
  - o_nate 15y ago
    A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable but not patentable.

scottmp10 15y ago

I think that it will be very difficult to have serious patent reform for the software industry without having significant effects on other industries. So while it seems like the software industry is generally behind getting rid of patents, the changes will be very difficult to isolate to software and companies outside the field will likely oppose any significant changes. FWIW, I hope they make significant changes for software patents soon.

mikeknoop 15y ago
Can you speculate some companies who would take issue to the abolishment of software patents?
- chollida1 15y ago
  I would imagine it would be anyone, or industry, who has a significant patent portfolio who worries that invalidating software patents would weaken their patent position. Both in dollar terms and legal terms.
  - scottmp10 15y ago
    Yes so there are likely some software companies that might have issues (depending on what the changes looked like) such as Microsoft, Oracle, IBM (not sure if these companies would object or not, just citing companies with large portfolios). Some non-software companies like pharmaceuticals almost certainly would oppose changes that would affect their ability to exercise their patents. Edit: A better example might be a company like Intel that has a lot of hardware patents. It is potentially difficult to change the patent laws to prohibit software patents without affecting hardware patents.
- praptak 15y ago
  Excluding the patent extortion industry, any industry who believes it's hard to define a software patent. "I know one when I see it" might not cut it and there might be some nasty edge cases where an algorithm controls a physical process.

niels_olson 15y ago

Why does it have to be the supreme court? Why can't the industry tell Congress "This sucks, fix it", the way the military did with Don't ask, don't tell? VCs just aren't as good at that whole "leadership" thing as much as generals I guess? (yes, I'm trying to goad someone to action.)

masklinn 15y ago
> Why can't the industry tell Congress "This sucks, fix it" Because the part of the industry which has money and congressional ear either protected (by a huge patent portfolio) or in the game of using their patent portfolio aggressively. > the way the military did with Don't ask, don't tell? 1. the military is a major reason why DADT was introduced in the first place 2. apart from Mullen (who mostly punted the responsibility to congress), the military (active, retired officers really don't count) did not do anything until well into BO's term, even though repealing DADT was one of BO's campaign issues the military and DADT really is not a good example of "this sucks, fix it".

nostromo 15y ago

Of all the supreme court decisions, I wouldn't expect this to be drawn mostly on partisan lines. Yet the author makes a good case that the liberal judges would invalidate the patents and conservative judges (with Scalia an open question) would not. Why are conservative judges more likely to support software patents?

shapoopy 15y ago
They'll tend to see them as protecting the interests of business, which has, for whatever reason, become part and parcel of supporting the "free market" in contemporary American political culture.
- amitparikh 15y ago
  and that's the biggest hypocrisy... what they are really supporting are the interests of existing businesses.
almightygod 15y ago
future prediction: the right will claim that it would hurt small businesses, as far from opposite this statement is. What they mean to say is it would hurt the profitable businesses that have lobbyists and fund their campaigns
te_platt 15y ago
Consider this quote from Scalia: 'You really can't judge judges unless you know the materials that they're working with. You can't say, "Oh, this is a good decision and this was a good Court," simply because you like the result. It seems to you that the person, who deserved to win, won. That's not the business judges are in. We don't sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you're a good judge, you don't really like the result you're reaching. You would rather that the other side had won, and it seems to you a foolish law. But in this job -- it's garbage in, garbage out. If it's a foolish law, you are bound by oath to produce a foolish result because it's not your job to decide what is foolish and what isn't. It's the job of the people across the street. So don't judge judges unless you really take the trouble to read the opinion and see what provisions of law were at issue and what they were trying to reconcile and whether they did an honest job of reconciling them, and if interpreting the words of the law in a fair fashion. That's what counts. Unless that's what you want your judges to do, you have a judiciary that's not worth much. You have a judiciary that is just making the law instead of being faithful to what the people have decided.' I know this is a broad generalization but typically a conservative judge goes for strict interpretation and a liberal judge goes for desired outcome.

draggnar 15y ago

That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously. - Benjamin Franklin

pg_bot 15y ago

A simpler solution would involve giving the defendant of patent litigation the option of making their suit winner takes all.(All of the court fees within reason are paid by the loser) This would keep software patents but reduce frivolous lawsuits.

ohyes 15y ago
And make it impossible for the little guy to, for example, sue Microsoft due to the potential huge legal fees. The issue here is that patents are being used for extortion, and none of these cases ever end up going to court. Maybe what would fix this would be to not allow private entities to pursue patent infringement cases with their own lawyers. Create a Bureau of patent infringement. Make it so that when a patent is infringed, you file a claim with the Bureau, and they asses validity of patent and assign damages. No litigation, no settlement, no patent lawyers involved. Perhaps we can defeat bureaucratic inefficiency with more bureaucratic inefficiency.
- regularfry 15y ago
  Regulatory capture is the danger there.
- pg_bot 15y ago
  How would that change make it any more difficult for a little guy to sue a big corporation? I think you have missed the part of within reason, Microsoft wouldn't be able to put an individual on the hook for all of their court fees just those that a judge deems valid to pay for the suit. This change would make the patent holder vet the validity of their patent before they can automatically sue, which is the goal we are looking for. A defendant would only exercise the option if they believed the claim to be frivolous for fear of losing in court. For legitimate cases the parties either go to court or settle.

euroclydon 15y ago

The SCOTUS ruled against the patentability of an algorithm which codified a certain hedging strategy in the Bilski case in 2010. This was believed to reinforce the invalidity of many software patents. http://en.wikipedia.org/wiki/In_re_Bilski http://en.wikipedia.org/wiki/In_re_Bilski

jdp23 15y ago
As the article discussed, Bilski was decided on very narrow grounds; and it relates to business model patents, not software patents.

timsally 15y ago

It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us. I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify is Diamond v. Diehr. That still wouldn't be the end of our patent problems though.

anigbrowl 15y ago
You underestimate how strong such an argument has to be to succeed. I wish I could upvote this wise advice ten times. even if patents made it to the top of the Supreme Court docket today and they justices interrupted their summer holidays tomorrow to consider the issue, a badly-thought-out case could just as easily end up extending patent terms to the 95 years that copyrights enjoy. Unfortunately, a great deal of legal and political debate in the US currently looks like this: http://www.youtube.com/watch?v=yo3uxqwTxk0 http://www.youtube.com/watch?v=yo3uxqwTxk0
wccrawford 15y ago
"Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us." Actually, that's exactly how the system works. Check and balances.
- prayag 15y ago
  Not really. The court interprets the law as written by the congress. There are always some checks and balances while interpretation but that's not what the court is for.
  - CDRdude 15y ago
    Is that accurate in this case? My understanding is that the majority of the time, SCOTUS interprets the constitutionality of laws.

deleted 15y ago

[deleted]

chopsueyar 15y ago

Wrong branch.

WalterBright 15y ago

Yes, please.

deleted 15y ago

[deleted]

doctoboggan 15y ago

>Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing. Yet we still seems to have malpractice lawsuits all the time.

antidaily 15y ago

Here, I'll predict the vote: 5-4 not in favor.

Eliezer 15y ago

"How to define personhood is a legislative issue, and in the U.S. system, of course, laws are made by the Supreme Court." -- Brad Templeton, speaking of Artificial Intelligence

cft 15y ago

Big companies are interested in getting rid of patent trolls, because the defense against trolls is asymmetric. They would like a system that allows them to attack or defend against other large companies, while they remain immune from trolls, such as Intellectual Ventures and its off-springs, like LodSys. One solution would be a 2 year expiration on software patents. Another idea would be to demonstrate "substantial" sales for renewals.

brlewis 15y ago

Read Bilski people. Overall it was 5-4, but if you read the majority and the dissent, it was 9-0 on this sub-point: that State Street (not a Supreme Court decision) is bad precedent, and Benson, Flook and Diehr are good precedent. Diehr is only muddied because people choose to muddy it. I'm working on an essay that details this now.

petegrif 15y ago

This is a simple minded piece. It is so riddled with half digested bs I don't even know where to start with it. I guess I'll just pick on something so blindingly obvious that anyone with more than one braincell (which apparently does not include the author) would already find beyond question. Copyright protects the expression of an idea. This is an absolutely excellent form of protection when the expression of the idea is a huge part of its value. A piece of music, or a novel IS its expression. If you rewrite James Joyce's Ulysses in your own words you have lost Joyce's expression which is precisely what people value in the reading. Hence a work in which the expression is critical to its value is well protected by copyright. Software is not such a work. If someone spends years refining an invention and someone else reverse engineers it and yet changes the expression of the work copyright is no protection whatsoever because no-one using the work gives a rat's ass about the underlying expression. The idea that copyright is a meaningful protection for software is so laughable that anyone daft enough to take the idea seriously is clearly so appallingly badly informed that they don't deserve to be taken seriously.

cft 15y ago
So it follows from your argument that software patents currently promote innovation? If so, can you please make this logic more explicit?
btilly 15y ago
Clearly anyone who is willing to release software under the GPL does not agree with you about the meaninglessness of copyright protection for software. You would be amazed how many smart, and well-educated people have taken that copyright license, and others like it, seriously.
o_nate 15y ago
What if I was the first person to write a murder mystery in which the butler did it? Could I patent that plot device so no one else could use it? The point of copywriting code is not because people care so much about great coding style or variable names - it's to prevent the laziest forms of copying. If someone wants to invest the time and effort to reverse-engineer and rewrite a piece of software without copying any of the original code, the cost of doing so is sufficiently prohibitive that it might be easier just to rewrite it from scratch.

felix0702 15y ago

The bottom line: Supreme Court will never invalidate software patent. Image this if Supreme Court does invalidate software patent. A big sticker will be on the US map and shows, “Welcome to take all software inventions you want. All my software inventions are yours. Oh. BTW, yours in your country are still yours!” You see how this affects global competitions in software and finance industries. However, the current patent system still has room for improvements. 1. Software innovation changes too fast. The patent length should cut to 5 years (excluding the waiting time to get the patent). I have discussed this previously, http://news.ycombinator.com/item?id=2409917 http://news.ycombinator.com/item?id=2409917 2. Patent non-practicing entities (excluding public research institutions and schools) should be banned to sue anyone. However, even so Patent Trolls still know how to get around this. This just increases difficulty, but definitely won’t stop them. 3. Claim description has many ways to interpret. This is where the money is spent in litigation. If a standard structure and a list of words are allowed to be used in the software claim description, this probably makes easier and faster to find out if a software patent is valid. But I have to admit this is a hard problem to solve.

scott_s 15y ago

I find this argument unconvincing: Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline. The implicit argument is that creating software is inherently more creative than, say, creating a mechanical device. Yes, I take enjoyment in crafting my code so that its model is no more complex than it has to be, and in refactoring the code so that it is as clear as aesthetically pleasing as possible. But I imagine that people who design physical items feel the same way about their work. Please note that I am not disagreeing with conclusions - I have said nothing about his conclusions. But I think the overall argument is stronger without this one. With it, it feels like he started with a conclusion, and used whatever arguments lead to that conclusion.

jerf 15y ago
Actually, you can sort of formalize the argument: Software is eligible for copyright. Therefore, the law already recognizes that it is an expressive activity. A mechanical device is already not eligible for copyright. Software is the only thing I know covered by both patents and copyright. Sometimes people deny this to me when I say this online, but I haven't yet heard anybody come up with a concrete example that stood up to scrutiny. Is it really so stunning that two systems never designed to mesh, patents and copyright, turn out to in fact not mesh and produce a big mess? Is it really so horrible that software be only copyrightable and not patentable? Very few people are arguing that software should not be covered by any sort of IP protection, and I suspect the non-zero set of such people would be further shrunk if patents were removed from the equation. (Though I also guarantee, not eliminated.)
- scott_s 15y ago
  Regarding my initial point, I think software falls under copyright solely because its written - I don't know if that's the argument now, but I imagine that was at least the initial reason for granting copyrights. Personally, I can find no meaningful difference between designing software and designing a mechanical device. For that reason, I don't like that argument. Your main point is interesting, but I'm not sure if I can completely go along with it. Consider, say, a mechanical latch. The design schematics for it fall under copyright. The latch itself falls under patent. The process for making the latch is to look at its design, and change your tools around to produce something of that design. Looking at it this way, I can see how software could be considered its own design schematic - yes, I'm aware that external documentation exists, so it's not a perfect analogy. But with software, there's no separation between "thing used to describe what should happen" and "thing that happens." I want to agree with your argument because it would provide a clean solution to the problem, but I don't think I can. Rather, I think the solution to the problem may require a results-oriented approach. That is, it may require us (as a society) to say, "The current patent scheme regarding software is harming innovation. We are going to change how patents apply to software to avoid this harm."

Finbarr 15y ago

I've been thinking this a lot recently. You can't patent software in the UK and it seems ridiculous that you can in the US.

Som 15y ago

...and stop the software cost by transactions/servers/CPU's.

Daniel_Newby 15y ago

This will never happen. Consider a mechanical timer in a washing machine. A timer that produces a novel washing cycle is certainly patentable. Consider a chain of electromechanical relays that produces the same cycle. Clearly it is just as patentable, and could be covered by a well-written version of the preceding patent. Consider the transistorized version of the preceding, with the relays replaced by transistors. Patentability: ditto. Consider a mask-programmed processor that produces the same cycle. (Mask-programmed means the program is hardwired into a metal pattern.) Patentability: ditto. Consider a flash-programmed version of the preceding that produces the same cycle. Patentability: ditto. Consider a volatile memory version of the preceding that produces the same cycle. Patentability: ditto. Why does this matter? Because in the coming age of nanomachines, "software" will frequently be embodied in custom mechanical machines, chemical reactions, interference patterns of light, and so forth. If software is unpatentable, then neither can you patent the special sauce that turns dirt into nanomachines.

aroberge 15y ago
This argument is simply wrong. You could use the same type of "progression" to get, at the root, basic theoretical physics or pure math. Yet, ideas and concept from these two fields are not patentable.
- bfe 15y ago
  But his examples are all physical embodiments that perform a tangible real-world function. There's no continuous progression between those and pure math.
nate_meurer 15y ago
Your contrived chain of analogies ends in a total strawman. I think you intended the last item on your list to be pure software, but it's not. It's just an electronic version of the first item. No one is arguing that a complete electronic timer should not be patentable. The argument is whether the software alone should be patentable. The software by itself is NOT a timer. The timer's software is only the idea of the timer; it is the instructions, the observation of which allow the physical timer to function. There must still be a physical timer -- an assembly of physical parts that follows programmed instructions to provide a function. That entire assembly is what should be patented. The bare idea of the timer -- the steps that the timer takes while it's working, should not be patentable. That's what the article is proposing. Nowhere in your analogies is bare software addressed.

MetaMan 15y ago

As a software programmer I don't agree with this view that software patents are wrong in principle. There I said it! Software just as much as hardware can be used to "express" something new. I.e. to invent something. An patentable invention is a novel "solution to a problem which is NON-OBVIOUS to someone skilled in the art". The real issue with software patents is that they are granted far too easily. The test that seems to be applied by the patent examiners is "is that new?". However, they should be asking "given the problem the inventor is trying to solve is the solution (the invention) really non-obvious to some one skilled in the art?". However, even though I think that software patents, with the proper examination standards are just as valid as hardware patents I think there is a case for limiting (or even banning) ALL patents - NOT just software patents. One idea would be the requirement that a working prototype has to be produced and seen to be working. That, along with a proper non-obviousness test, would limit companies going for patent "land grabs".

akeefer 15y ago
As the article points out, software is also protected by copyright, and the article doesn't mention that it's covered by trade secret protection as well. The key difference is that patent protection applies to people who independently create something, whereas the other two protection methods don't. So when I hear engineers say they like patents, first of all I assume that they've never worked for a company that's been sued for patent infringement (and that they optimistically assume it only happens to other people), but then I try to find out why they don't think copyright protection is enough. Someone still can't legally steal your code without patent protection, because it'll be protected by copyright and trade secret protections. Even if they didn't copy your code, but they looked at it prior to implementing their own version, that would violate trade secret protections. In that respect, software is protected the same way that authors and musicians are protected. Authors invent characters, plots, worlds, objects, even words, but they don't get to patent them. And yet they're still protected from theft by copyright protections; you also can't just go and make a movie out of someone else's book without permission, though you can certainly make one that's similar. If it's good enough for authors and musicians, why isn't that good enough for software developers? So to sum that up: software development involves a creative act that deserves protection, but that's different than saying that the creative act deserves patent protection, which legally enjoins anyone else from independently developing the same thing, and which gives person A the legal right to take away the work that person B has done completely independently (or at least take away any money they've made from it and prevent them from selling it in the future). To justify taking away someone's work like that, you have to either be sure that the work is a copy or derivation of the original, which is almost never the case with software patent lawsuits, or you have to argue that even though it's unfair to deprive people of their work like that, that the benefits of the overall system are positive to society. That's an easier argument to make if 1% of patent lawsuits deprive people of the product of their independent work, but it's a pretty hard argument to make when 99% of them do.

aab1d 15y ago

In India we don't have the concept of software patents, unless some sort of hardware is involved. I am guessing that this is way better than the system where all business methods are patentable. This kills innovation. We should all just petition for change.

entrepreneurial 15y ago

Someone should just patent the patent: "conferring a right or title, esp. the sole right to make, use, or sell some invention" Joke