17 ms·

All right, so we all agree that software patents are a problem. So what do we do? A). Abolish software patents. Existing software patents, or parts of patents

• gallerytungsten 15y ago
  I think a reasonable "B" solution would be to require that any company engaging in patent litigation would have to show that they had actually been using the patent in a product; that their product had a record of sales and use in commerce; and that the allegedly infringing party was directly affecting their business. Of course, this alternative would have to be specified in much greater detail to be effective, and have safeguards against further gaming of the system. But it's a reasonable start, particularly as the patent trolls are buying simply to sue, not to produce a useful invention for sale.
  • Cushman 15y ago
    I like this idea. We've grown too attached to the notion of "intellectual property", thinking of ideas as things you can own. We should get back to the purpose of IP: subsidizing the creation of new information, which by nature belongs to no one but benefits everyone, with a limited monopoly on its reproduction. If you aren't using your monopoly, then no one is benefiting, and you shouldn't have it.
    • MartinCron 15y ago
      I keep thinking about the case where someone has a valid idea for an invention that's worth a patent, but doesn't have the funds to build such a thing. Let's say I invent a new kind of power generation that requires construction of a large-scale power plant. I shouldn't have to wait until the power plant is built and operational before I get protection for the invention. I should be able to get a patent on the idea and sell the rights to implement it to someone who can.
      • Cushman 15y ago
        That's a great concern, but I don't think we're talking about requiring an exemplar to patent so much as a "use it or lose it" system. And "use" doesn't have to mean implement. In your case, you'd just tell the truth: "I've been making a good-faith effort to license this generator technology to power companies, but they keep turning me down because they're waiting for my patent to expire instead so they get it for free." If you can document that effort, there's no reason we couldn't consider that a valid use and sustain the patent— and so the power companies have no incentive not to license your technology, and so the generator gets built and everyone wins. Remember also that the only case this comes up in is if a power company sues you to get your technology for free on the grounds that you aren't using it. If you offered to sell it to them first, that's a pretty open and shut case.
      • jonkelly 15y ago
        With respect, I think this is exactly the case people have legitimate worries about, but also the case that we must clearly refute. Why should this idea be protected? Does it benefit society? I think the answer is yes only if one person having the idea makes it get implemented significantly more quickly than it otherwise would have. But I doubt that is usually the case. It's far mor likely that either a) the idea isn't really very novel and would have been produced soon after anyway by someone else or b) someone having a patent on the idea makes those with the ability to execute on it (or the capital) do something else. Or both. Patents should only exist to benefit society, since they have the force of law. I think most of us struggle to find even single instances where that has happened.
  • extension 15y ago
    That really doesn't address the problem at all. Legitimate technology companies would still try to litigate each other out of the market with bogus patents. They would just have to make use of the bogus patent in one of their own products, which would be trivial. In fact, even the patent trolls could trivially productize their patents, or make a deal with a real tech company to do it. The intended purpose of patents is largely to protect your idea while you develop it into a product. By the time the product is on the market, it's often too late to patent it. For example, drug companies often do 7-8 years of research between patenting a drug and releasing it.
• sage_joch 15y ago
  A more realistic first step might be "no new software patents". Otherwise it could be a pretty fierce fight with existing stakeholders, who would view abolition similarly to a nullification of a stock portfolio.
  • kenjackson 15y ago
    I agree, although I'd make it broader, because SW patents is too tough to define and isn't the only place this problem exists. No one really has a great definition for SW patent, especially since most SW patents are embodied as HW. Is the x86 architecture patentable considering one can implement it all in SW? Is signal multiplexing technology a SW patent? What about robotics in general? I frankly don't think it can be done easily. I think it would be easier to say, "no patents, except drugs". And then carefully define drugs. I honestly don't think patents in the large are useful anymore, except in the case of drugs.
    • JoshTriplett 15y ago
      Given how past legislation has affected the language of software patents ("method, system, and computer program product"), I can now suddenly picture a patent claim defining software as a mechanism for producing alterations in mental states and optic nerve impulses.
  • smokeyj 15y ago
    Isn't that anti-competitive to new companies? They can get sued but can't sue back?
    • nextparadigms 15y ago
      This is why there should be an opt-out of the patent system, or they can simply say all new companies can't be affected by older patents. It would be a pretty good transition - not perfect, but about as good as it gets.
  • robryan 15y ago
    I don't think the big tech companies would mind the nullification, would get a lot more objection from patent trolls and small companies that happen to hold a few key patents.
• streptomycin 15y ago
  (A) is my ideal scenario, but (B) might be to shorten patent terms for software. Maybe 5 years or so, instead of 20. Technology moves so fast that 20 years is an eternity. For instance, MP3 is old hat, but it still contains several patented technologies.
  • Joeri 15y ago
    You could also do (A) via (B). Gradually shorten the patent duration for software patents until you get rid of them entirely.
• jonmc12 15y ago
  Really, we should be free to invent. Option B should be that if an inventor can show a clean history of evolving an idea, it should be allowed to freely enter the market. Ideas evolve over time, and the originate from something. Perhaps if inventors were willing to register their invention documents through a set of steps mapping to something like the Technology Readiness Level (http://en.wikipedia.org/wiki/Technology_readiness_level http://en.wikipedia.org/wiki/Technology_readiness_level), then they could be eligible for immunity against patent based litigation. But lets say this certified patent wants to protect its IP on the market through litigation. In this case, the inventor could first request certification of the invention in question before any further legal action occurred. If we could create a certification process that is less than $2000 or so (about the cost of a provisional patent including attorney fees), it seems feasible. This system would seek to encourage a regulated invention process that filters new inventions from even being eligible for litigation. This allows for inventor insurance in a sense - keeping a capped cost for protecting certifiably original ideas while encouraging original invention and discouraging the incentive behind patent lawsuits.
  • Cushman 15y ago
    I love the idea of a "show your work" patent system, but could it possibly work in real life? Does anyone do anything like this currently?
    • saulrh 15y ago
      Scientists do something similar, in that they have to log absolutely everything they do and publish the important parts. Biologists and psychologists are even more on the hook, since they have to demonstrate compliance with experimental ethics regulations. It's a bureaucratic hassle, but it works pretty well.
    • DaniFong 15y ago
      While you're right that there are some practical issues with this sort of system, one should also recognize that the patent system doesn't current scale well either. You have to check the claims against every publication in existence. Since this isn't possible, this ultimately has to be fought out in court -- yet a granted patent still carries with it a presumption that the patent rights should be upheld. One could, however, have a system where if two separate teams file patents before either are published, they should not have to license it.
• troyastorino 15y ago
  If software patents were abolished, companies could still have protection for their software on the basis of copyright law. Copyright owners have the right to control distribution and adaptation, which would cover the legitimate intellectual property rights that companies should have over their software, and could eliminate the frivolous patent suits that are such a waste of resources. This of course would depend on what early cases would establish as a basis for what counts as copyright infringement, but hopefully it could be interpreted in a narrow enough fashion to provide protection for people's software while eliminating the threat of baseless suits.
• daniel-cussen 15y ago
  One could make a wiki so that programmers can challenge new patents (usually coming up with prior art) in their spare time.
• A1kmm 15y ago
  B) Create an alternative parallel system to the copyright / patent system, where companies, individuals, and other legal entities can choose to pay a fixed percentage (say 10% or 20%, perhaps depending on the industry) of their profit / income after expenses to a government fund, granting them total immunity from claims of infringement of copyright and patent law. Creators of works and ideas then file a return of how much work went into the ideas they are selling, and a good faith description of what other works they used to produce their works. This goes into a formula to distribute the money from the government fund - taking into account both the utility of ideas and the effort required to create them.
• WalterBright 15y ago
  B. Reduce the term of patents to, say, 5 years instead of 20.
• nhebb 15y ago
  B) Shorten the term of patents for software. IIRC, the current term in the US is 20 years - basically the lifespan of the internet to date. Software innovation turns much faster than that. A patent term of 5 years would allow serious patent filers to capitalize on the R&D, while providing too short of a term for patent trolls to get a return on investment when acquiring mass amounts of patents.
• jayzee 15y ago
  My Plan B: Only one parameter is changed, everything else stays the same. The parameter that is changed is how long the patent lasts. And that is determined by the pace of innovation ("number of patents / yr") being awarded in that category. The more patents in software the shorter the duration of patents in this category.
• shawndrost 15y ago
  > Actually, I would be happy with just one patent. I nominate RSA, which is kind of the foundation of modern commerce. http://en.wikipedia.org/wiki/RSA http://en.wikipedia.org/wiki/RSA http://www.google.com/patents?vid=4405829 http://www.google.com/patents?vid=4405829
  • Cushman 15y ago
    Was the patent really necessary, though? Wiki even mentions that it was only patentable in the US because of prior art, and likely would have been unpatentable if all extant prior art were known. If anything, this seems like an example that argues the insufficiency of patents. If you invent something as important as RSA, you should be rewarded with a kingdom— and the information should be freely available to everyone. I'm not sure our compromise is doing the trick.
    • shawndrost 15y ago
      (I'm actually opposed to most software patents, so take this outlier as I do: a strange case that bears further consideration.) This patent is definitely the kind of novel, amazing discovery that we want to reward. Yes, the authors filed for a patent after their work was originally published [0], so they lost their international patents on a technicality. Yes, another scientist may [1] have secretly discovered the same thing, filing it away in classified documents, but by definition, "prior art" has been "made available to the public" [2]. Nonetheless, here are some important facts: first, if it weren't for this work, ecommerce would have been delayed for an unknowable amount of time. Second, if it weren't for this kind of fantastically profitable outcome, MIT (the original patent holder) would be hundreds of millions of dollars poorer. [0] The wiki is misleading. It says "Since a paper describing the algorithm had been published in August 1977..." but it turns out that the referenced paper was on RSA itself, written by a pop science author. From the reference: "RSA was first presented to the public by Martin Gardner, in an article in Scientific American in August 1977." [1] The wiki cites no source for this fact, so I can't compare the algorithms. [2] http://en.wikipedia.org/wiki/Prior_art http://en.wikipedia.org/wiki/Prior_art
• MartinCron 15y ago
  B) Would probably best be a handful of small incremental changes. My list: shortening the lifetime of patent exclusivity, raising the patent application fees and using that money to staff the patent office to the point where they don't grant bullshit patents, require disclosure of who has been sued/threatened so that defendants can combine legal efforts, require more disclosure about who owns what patents, so you're not sued from an empty office in Texas, allow for public oversight to contest patents on the grounds of prior art. These (small) changes have a much better chance of being made than abolishing software patents altogether, and would help reduce some of the abuses that are out there today.
  • extension 15y ago
    Something I would add to this list: require that patents be actively enforced in order to remain valid, similar to copyright and trademarks. This would prevent submarine patents.
    • ig1 15y ago
      There's no such requirement for copyright.
      • suking 15y ago
        There is if you want to keep the copyright. If someone copies your copyright and you knowingly do nothing about it, you'll lose it.
        • ig1 15y ago
          You're mistaken. There is no certainly such "abandonment" clause under international copyright law (which binds most countries), and I doubt any individual country as such a law either. There are countless examples where copyright has only been defended in specific cases long after the copyright infringement was known of. Notable examples include the song "Happy Birthday" and the Amiga Kickstart ROM. Feel free to provide any evidence for your opinion if you believe otherwise though.
• beagle3 15y ago
  Intellectual "Property Tax". Have everyone declare the value of their intellectual "property" (patents, copyrights, trademarks) - each and every item, for that year, on their tax return, and have them pay 1% of the value as "IP tax". That amount is what one pays for a compulsory license or if successfully sued, and up to 3 times that for willful infringement, per year -- and no more. (But of course, patent owner can always negotiate a lower payment) All of a sudden, everyone has an incentive to state a reasonable value for their patent. Copyright catalogs that are not being published (old music recordings, old books, old movies) would be assigned 0 value by copyright holder, to avoid tax - which means anyone can freely make a copy. If they believe -- at the end of the year -- that someone is making a profit at their expense, they can set the value as high as they want at the end of that year, pay the tax, and sue the profiteer. Simple, elegant, and coffer filling.
  • schwabacher 15y ago
    This is a very good idea, but one downside is that it gives the government an incentive to grant patents and to prevent them from expiring.
    • beagle3 15y ago
      It is no worse than the existing system. If you are not aware, filing a patent costs a few thousand dollars, and after receiving a patent, you have to file "maintenance fees" which easily total tens of thousands through the lifetime of a patent. Same incentive exists today to grant patents (government makes much less money from rejected patent than from granted patent), and to prevent them from expiring (collect more maintenance fees). Hell, the Sonny Bono Copyright Term Extension Act (affectionately known as "The Mickey Mouse Protection Act") which extended copyright retroactively from 70 to 95 years showed that congress is all too willing to do that to help their friends in the media industry, without even requesting payments; it is definitely NOT the lack of "intellectual property tax" that stops congress from increasing the term of patents (or copyrights).
      • schwabacher 15y ago
• Astrohacker 15y ago
  B) Remove all intellectual property laws period. Not just patents for software, but all patents, and copyrights, and trademarks. You might think at first this would lead to chaos. I don't think it would. I think it would make the world radically better. I can show this would work if you're curious.
  • chopsueyar 15y ago
    I could never find Coca-cola again.
    • Astrohacker 15y ago
      A lot of people wouldn't like Coca-cola scammers. They'd want the real Coca-cola. And these people would be willing to pay a small premium for it. So stores would have an incentive to sell the real thing. A lot of stores would probably refuse the sell the scam Coca-cola. But a lot of other people wouldn't care, and they'd happily drink the scam Coca-cola which tastes just like the real thing, but is made by somebody else, and is cheaper.
      • hdctambien 15y ago
        I think coca-cola is a trade secret, not a patent
        • chopsueyar 15y ago
          I was talking about the trademark, not the syrup.
  • dpatru 15y ago
    I think a lot of trademark law could just as well be replaced with existing law against fraud and defamation. The fake Apple stores in China which sell inferior knock-offs are defrauding their customers who bought thinking they were buying a quality Apple product but instead ended up with a product merely masquerading as an Apple product. So the customers would have a fraud action against the fake Apple stores. Also, by selling inferior "Apple" products, the fake stores are harming Apple's reputation. This would give Apple a defamation case against the stores. Such a scheme would have the added benefit of encouraging quality products to the point that companies producing poor-quality goods could lose their trademarks to quality companies. So if Dell began producing their own line of "Apple" branded computers, Apple could only sue Dell if the Dell "Apple" computers were causing harm to Apple's reputation. If Dell's computers were actually better that Apple's computers, Apple would have no cause of action. In time, if Dell could show that Apple's computers were actually causing harm to Dell's reputation, Dell could force Apple to pay damages for using the Apple mark.
• jpdoctor 15y ago
  > All right, so we all agree that software patents are a problem. The problem is much bigger than software patents.
  • Astrohacker 15y ago
    Agreed. It is basically all government regulations that are the problem. Very few regulations exist for ethical reasons; most are there to entrench powers or are just mistakes. The way forward may be to create anonymous or pseudonymous companies, operating over the internet, and paid for in bitcoin, that cannot be stopped (at least not easily) because the real-world identities of the owners are not known. Thus, government would simply be made obsolete.
• uiet 15y ago
  Good software patent: MP3
  • artsrc 15y ago
    I remember reading an article by a developer working on audio compression software, where he discussed how hard it was to write compression software without hitting one patent or another. I think without patent protection, music compression would be better that it currently is.
• deleted 15y ago
  [deleted]
• keithpeter 15y ago
  B) Set up specialised patent courts. A central one for large complex cases. Local ones for smaller cases with limits on liabilities. Those representing clients in the central court must be qualified in patent law. Judges make out cases and set liability. The barrier to fanciful claims would be set higher. http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1073791321&type=RESOURCES http://www.businesslink.gov.uk/bdotg/action/detail?itemId=10...