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Everything we create and think of is based on experiences (sight, smell, feelings....). Therefore it's very strange to have patents. A patent is just a smart mi

• alok-g 15y ago
  Patents are about ideas and inventions which must be "novel", "useful" and "non-obvious". A smart mix of things that already exist would not be patentable unless it is "inventive", "novel", useful" and "non-obvious". If it is all of these, it should be patentable whether it is software or hardware. (Note however that laws of physics, mathematical formulas, etc. are not patentable.) What's broken is not the concept of a patent, what's broken is its implementation. Patent applications that do not satisfy the set criterion often get accepted. "Non-obvious" often is equated to "currently non-existing" even though it may be very obvious. (In fact, one of the ways to show non-obviousness of an idea is to show non-existence of it in spite of the problem being existing for long.) As you stated, it is difficult to have a "smartness" value for a software (and I think even hardware) patent. Another reason why the real-life implementation is broken is that people and companies want it to work both ways based on whether it is helping them or working against them. But nothing specific to software here, the same happens for hardware too. What needs fixing is the implementation, not the idea itself of the patents, be it software or hardware. Edit: Disclaimer: I am not a lawyer.
  • nogden 15y ago
    It would seem that one of the main arguments against software patents that is thrown around is that "software is mathematics". As a software engineer currently knee deep in learning Haskell, I believe that this argument carries plenty of weight. However, when judging software patents, we shouldn't overlook the reason for which patents themselves were originally invented. I think the best description of a patent that I ever heard was: "A government granted use monopoly in exchange for full disclosure of how the invention works." This is, in my opinion, not a bad idea. It promotes the sharing of knowledge, whilst not depriving the inventor from the spoils of their work, but only if a full, formal design of a working system is disclosed. In software, patents are granted based upon a technical description of the concept. But the requirement of a formal definition - which in the case of software boils down to either a proven mathematical model, or some code that implements the concept - is absent. Since written language is full of ambiguity and uncertainty, it is very possible and regularly the case that patents are granted on an idea that provides no concrete specification. As a result, the disclosure part of the agreement is not satisfied.
    • alok-g 15y ago
      >> the disclosure part of the agreement is not satisfied Again, a software patent is not about the software. It is about that technical description of the concept. That concept is what carries the invention (while the software itself carries a copyright). Written language is indeed full of ambiguity and uncertainty but the language of patent claims is not (some separate comments in this thread talk about this). When deemed necessary, source code is included in a patent application. Flow-charts are also often included. But all of that is out -- the core part of a patent are the claims, written in a well-defined unambiguous language that defines the concept of invention as clearly as possible and it does not need diagrams and source code. Edit: Disclaimer: I am not a lawyer.
    • yxhuvud 15y ago
      It is a bad idea (since that isn't how it works in practice), but not a bad intention.
    • alok-g 15y ago
      Let's look at this a bit more precisely. True that mathematical formulas and laws of physics are not patentable. However, a specific use of either to solve a specific problem is patentable provided the three constraints (non-obviousness, usefulness and novelty) are satisfied. Software is not mathematics -- A computer science algorithm could arguably be, but "software" is not. Software is a specific implementation using that mathematics that sits onto your CD or hard-disk where "mathematics" cannot sit (sure copyrightable representations of that mathematics do). And software gets appropriately subject to copyright laws. Applying software to solve a specific problem is no different than applying hardware or mathematics to solve a specific problem. If those patent-ability constraints are satisfied, there is nothing wrong with software patents "in principle". Fixing the practice is another thing. Second refutation I have comes from my personal experience. No, most of the software developers are not mathematicians. Often far from that in practice. Many don't even understand computer science (including myself partly). We can still however make software inventions that satisfy the three constraints. I know this topic remains debatable. And at least a part of the reason is that the issues are often not correctly understood by people and the law-makers. Add to that the pace at which laws are adjusted to changing practices in the industry. Edit: Disclaimer: I am not a lawyer.
  • masklinn 15y ago
    > What needs fixing is the implementation, not the idea itself of the patents, be it software or hardware. There are two issues here: 1. You assume the implementation is fixable, I have seen no sign of it so far, especially for software and method patents. Even more so as the number of patents applications is skyrocketing worldwide and intellectual propriety offices have neither the resources nor the qualifications (at least in software) to do a good job at it. This is not helped by 2. Patents themselves have little value if there is low risk and investment in what is being patented. That's the case for software (relatively). Even more so because reinventions are very common in software, if you have a given problem there will be converging solutions independently devised. Patents were originally thought of to grant a short-term monopoly to a creator in exchange for that knowledge being public. The goal was twofolds, to encourage potentially costly innovations and to ensure that knowledge gets into public domain at one point, to benefit all. The second goal is broken by the duration of patents, especially in domains with high rates of innovation (hello software) and the first one is likewise broken in domains with high rates of innovation because patents hinder reinvention (this is made even worse with the new hare-brained schemes of first-to-file as it starts breaking even *pre*invention) or synchronous invention by making them far riskier. I submit that not only is the implementation broken, but the concept itself is broken for any domain with low investment costs and high innovation rates: for patents to "work" their duration would have to be so low (months, or even weeks) as to make them not worth the time.
    • alok-g 15y ago
      When reinvention is too common, and converging solutions to a given problem can be readily devised, it's not a patentable idea by the constraint of "non-obviousness". But such patent applications readily get granted still. That does not mean the concept (including non-obviousness requirement) is flawed. I agree that it may be impractical given that non-obviousness is not measurable. The duration of the patent in my terminology is also an implementation issue and not a conceptual issue. I agree that in today's world, twenty years are a bit too long. Or rather inventions that can be so readily made should be failed on "non-obviousness" basis again. The real issue is this: Not the patent system, but the companies are interested in protecting "everything" they do. The law does not provide protection for everything. Copyright applies to specific material or implementations while patents apply when those three constraints are met. There are clearly things that are not protected by either and they should remain as such. The issue is that they don't (and both companies and patents office are responsible for this). To fix (the implementation), the bar on non-obviousness, novelty, etc. as well as the duration of the patent needs to be made commensurate with the reality, taking into account the low investment costs and timeline that you mention. Maybe even by having varied durations for different domains just as the non-obviousness bar is different for different domains just by virtue of being unmeasurable. All in all, I have not heard any real reason why software patents should be distinguished from other patents, other than possibly having the bar on them and duration adjusted accordingly. Edit: Disclaimer: I am not a lawyer.
• tptacek 15y ago
  The purpose of a patent isn't to grant ownership over mixes of things that already exist. The purpose of a patent is to incentivize full disclosure of novel ideas, ideas that otherwise would be locked up as trade secrets, by trading disclosure for time-limited monopolies over those ideas. The patent system isn't a prize we give to people for innovating. It's one of the ways we pay people to document and publish their inventions. Irony: Samuel Morse did in fact vigorously patent his inventions.
  • wnight 15y ago
    What novel ideas did the One-Click patent cover? Seriously. I think we're overpaying. And we're not paying the actual creative types. And we're not paying for what's really useful, just what receives the paperwork and has enough lawyers to attack based on it. If we really wanted to do this right we'd have a big vote for the people who made things (even textbooks, etc, like Knuth) that made the biggest difference in their industry. Then we'd take the money not being wasted on patents and give it to these people as part of a Technical Excellence Award. They'd also trickle some upwards to their resources and mentors, as disclosed before you voted. It's still got some holes in it but it's a better system because there are no limits on industry. No government employee is breaking open boxes of smart-phones and denying the right to sell them because they use some exclusive new innovation. That's just more proof that whoever invented that deserves more votes.
    • tptacek 15y ago
      You're describing a patent system that functions as an achievement award. But that's not the purpose of a patent. Knuth already published his best work without the incentive of a patent. The extra award would not get him to publish a new volume of TAOCP any faster. Think of it this way: to function as intended, the patent system has to make it economically less attractive to closely hold inventions as trade secrets. Your idea, however laudable it is, doesn't do that.
      • shasta 15y ago
        I don't really understand your objection. If, instead of trying to impose an artificial scarcity on copyable works (which includes inventions), we had a pool of "awards" that were distributed to creators proportionally to the value of the works, then of course that would provide incentive to disclose copyable works. So what if Knuth would get paid for work he would have made available anyway? There are plenty of people in our economy getting paid to do what they love and would do for free/much less. The main problem with the idea is that it eliminates negotiations between self interested parties as the means for value estimation. "Voting" on the most valuable works is quite simply a terrible idea. With copyrightable works, we could probably have some technological way (think DRM) of tracking popularity / frequency of use. But for patents, I'm not sure how it would work. I suppose that as long as you make it where the total tax levied on an individual to fund this system doesn't depend on how many or which works they used (though it could depend broadly on what they produce, what industry they are in, etc), they won't have an incentive to hide what they used. It's not at all clear to me that the difficulties inherent in such an approach are greater than those in current approach (which can be charitably describe as "a mess").