10 ms·

No Source Code == No Patent

329 points by AlbertCory 4y ago

kloch 4y ago
Working (!) source code should absolutely be required BUT there should also be a requirement that it not be unnecessarily complicated or obfuscated. Otherwise malicious compliance would be common.
- mindvirus 4y ago
  I feel like that could sort itself out. With overly complicated or obfuscated code, it would hopefully be hard to prove infringement.
  - AlbertCory 4y ago
    You don't infringe the source code, you infringe the claims (as has always been the case). The source code provides the Written Description and Enablement requirements.
nullc 4y ago
Patent applications I've been party to have included source code (maybe all of them? don't recall). I think it should be required. I'm not confident that it would actually solve a lot, but it would help. We mentioned source code in a position paper on patent policy I helped write a number of years ago, https://www.ftc.gov/sites/default/files/documents/public_comments/request-comments-and-announcement-workshop-standard-setting-issues-project-no.p111204-00020%C2%A0/00020-60532.pdf https://www.ftc.gov/sites/default/files/documents/public_com... --- For software, such disclosures are particularly poor, as the October 2003 FTC report on The Proper Balance of Competition and Patent Law Policy [7] notes: “Several panelists discounted the value of patent disclosures, because the disclosure of a software product’s underlying source code is not required.” [7] http://www.ftc.gov/os/2003/10/innovationrpt.pdf http://www.ftc.gov/os/2003/10/innovationrpt.pdf --- The best counterargument I can make is that applicants would provide obfuscated or fake source code, just like the many other ways they cheat the application process. Still better than not requiring it. I liked the point that most counterarguments are effectively arguments that the patent absent the source doesn't constitute disclosure. > Believe it or not, many of the examiners in software have Computer Science backgrounds and are perfectly capable of this. I assume it's still the case that you need an appropriately shaped engineering degree, which does exclude many CS people. But absolutely it wouldn't be to surprising to see an examiner try to run the code. Even if they're not CS people they're technical and smart and would figure it out quick enough.
onion2k 4y ago
A software patent without source code (or at least psuedo code) is effectively patenting "all possible implementions of this idea". That should be considered too broad.
- MattPalmer1086 4y ago
  That's what a patent is though. Protection for the idea, not the implementation. You can disagree that software concepts can be patented (I tend towards this view), but you can't have a patent that only protects a particular implementation. That would be copyright.
  - buran77 4y ago
    Wouldn't I be able to patent the idea of landing a rocket using a reverse launch process and stabilization fins and jets, even if I'm not even capable of landing a stone? If the implementation doesn't matter than I just locked everyone else out of landing rockets for decades. The idea is worth something but so is the implementation because ideas are generic and the more specific you make them, the more you actually define an implementation, in the physical world at least.
    - bdowling 4y ago
      > even if I'm not even capable of landing a stone? No, because the disclosure has to enable a person of ordinary skill in the art to practice the full scope of the invention. This is called the “enablement” requirement.
    - 1jbdg 4y ago
      Based on the idea only you’d struggle to describe that in sufficient detail that a relevant expert could use the invention…
    - abhibeckert 4y ago
      Your patent has to fully describe how the invention works. And if it doesn't work at all, then who cares if you own a patent for it, it's a useless invention anyway. If your rocket does work, then yes being able to lock everyone else out of it for decades is the entire point. But once those decades are over, anyone else can copy your idea, which has been documented for all of eternity. There's an almost endless list of inventions before patents that were never made public, and nobody knows how they worked. Unfortunately, that's the idea for how patents are supposed to work. In the real world what we have is patent trolls.
detuur 4y ago
Software patents have never contributed anything to society. Software is materially antithetical to patents. You can only ever clearly observe the output of software, and in many cases it's either hard or impossible to investigate the actual method (i.e. the patentable part). Regular patents work because they are easily** enforceable. If your competitor brings a rip-off of your machine on the market, you can buy one, take it apart, see the similarities with your own eyes, and have a case. If Meta rips off your method to apply an image filter, you better have 10 years of experience in reverse-engineering obfuscated code. Actually, don't even bother. The code runs on their servers and you will never have the opportunity to even investigate it. The upside to all of this is that a fun, creative interpretation of this exists. Which is that if you really want software patents, obfuscation and DRM should be forbidden so that patent claims can be investigated. **: Yeah I know that's no longer true in many cases.
- chii 4y ago
  > Software patents have never contributed anything to society. this is very noticeable because the truly useful software algorithms don't get patented, they get protection via trade secrets instead (and enforce it via courts and various internal processes). I say abolish software patents. Software copyright is good enough.
  - marginalia_nu 4y ago
    > Software copyright is good enough. To play the devil's advocate: Is it though? Especially recently we've seen the widespread acceptance of copyright and license laundering through large machine learning systems such as copilot and chatgpt, backed by enough microsoft laywers to prevent meaningful push back from the copyright owners. They'll output verbatim copies of what was previously copyrighted code. If it is true that software copyright can be cleaned away in such a fashion, maybe patenting the algorithm itself actually is necessary to avoid big tech companies like microsoft from forcibly strip mining the ideas of independent creators.
    - sam_lowry_ 4y ago
pabs3 4y ago
I would also say No Source Code == No Copyright, we should require companies escrow their software source code so that when their software becomes abandonware, users can continue development of it. This would also get closer to a right to repair software.
- mschuster91 4y ago
  Add on that No Tooling == No Copyright. Source code is one thing, but particularly for large projects or ones ... creatively abusing compiler features depending on a specific version, you're straight fucked without the build environment used. And that's not all... there is one elephant left in the room: code signing keys. Like, what is it worth when you have the source code and the build environment, but the computer running it is locked down hard by an actually capable TEE? For now, a lot of these can be bypassed by the arcane art of power glitching, but that won't be the case forever - and some console makers, like Microsoft or Sony prior to removing Linux from the PS3, took away the incentive many elite hackers had to make homebrew possible so it's a good question if there will ever be an Xbox Series X modchip.
  - pabs3 4y ago
    Agreed. That is a big part of why copyleft licenses like the GPL ensure users get the right to read, reuse, rebuild, reinstall software. https://sfconservancy.org/blog/2021/jul/23/tivoization-and-the-gpl-right-to-install/ https://sfconservancy.org/blog/2021/jul/23/tivoization-and-t... https://sfconservancy.org/blog/2021/mar/25/install-gplv2/ https://sfconservancy.org/blog/2021/mar/25/install-gplv2/
- freejazz 4y ago
  That's already the case with copyright, which is distinct from patent.
  - fluoridation 4y ago
    You can, in fact, copyright closed source software.
djmips 4y ago
But who reviews the source code? Could you submit broken code? Code hastily written by ChatGPT?
- anonymous_sorry 4y ago
  From the article: > This is exactly what the PTO examiner would do. Believe it or not, many of the examiners in software have Computer Science backgrounds and are perfectly capable of this. It is not black magic anymore.
hghid 4y ago
Nice idea, but at some point GPT + "generate code to implement this patent", may develop plausible enough code to satisfy most Patent Examiners. I don't see this fixing the issue in the longer term - maybe a "use it or lost it" rule + much shorter enforcement period for software patents is what is needed?
- AlbertCory 4y ago
  I guess you haven't read many patent claims.
xipix 4y ago
Something not mentioned here is that software itself is rarely the subject of a patent. Instead, it is a "computer system running software". This, I think, is a trick to get around software itself not being patentable in some jurisdictions. I really like this proposal but it lays bare the fact that the invention lies entirely within the software itself. When the patent industry has been pretending for years that the "invention" is a hardware thing that could, optionally, use software.
- bdowling 4y ago
  We sometimes call them “software-implemented inventions.”
- AlbertCory 4y ago
  right, and next week's article is going to be about that (sort of). The Facebook patent whose diagram I showed was all filed after the Alice decision that was supposed to clear out bad software patents.
hnbad 4y ago
A good bunch of comments here tapping into the old fallacy of "intellectual property is {good,bad} except in these other domains I don't understand the problems of and my work isn't directly affected by". I've yet to see a case against software patents that doesn't also apply to all other modern patents rather than being compared to some easily comprehensible mechanical contraptions from the 1920s.
- Kim_Bruning 4y ago
  I once talked with someone who was writing a book about (among other things) how patents delayed development of aviation in the USA so much that they entered WW I without any aircraft of their own. (Despite the fact that the airplane was <ostensibly> invented in Ohio). So, your view might well be correct.
  - hnbad 4y ago
    Oh, to be clear, I'm not saying intellectual property is good or bad, or at least what I'm saying applies either way. What I'm saying is that if you make an argument either way for one specific domain you should consider whether it's really an argument about that specific domain or if that's just the only one for which you thought this through. People in tech are used to treating tech as a special case so it's worth considering whether you've really found the exception or just found out that you actually disagree with the rule. Sure, software patents seem special if you contrast them with ye olde fashioned mechanical device but that's arguing against a strawman.
    - thfuran 4y ago
      I don't think they seem particularly special even then. Patenting an algorithm to be implemented by levers doesn't seem so categorically different from patenting one to be implemented by transistors.
      - AlbertCory 4y ago
        No, they are different. Read the automatic windshield wiper patents described in Flash of Genius. They provide circuit diagrams and explanations of why the wipers move faster when there's a lot of rain.
BartjeD 4y ago
I enjoyed reading it, but I have a few comments from a (non US) legal perspective. I also shared these in the substack. I put them here for discussion. A) One import aspect not hightlighted about the patent system is that it's intended to only verify the authenticity of a patent (substantially) if a conflict arises when the holder tries to enforce it. The checks to register a patent are comparatively minimal and formal. B) If companies file an ARP sample dated to the time they filed the patent they have already proven that they 'built' the software idea which the patent covers. The point of the patent is then to describe the application is sufficient detail that it may be enforced. If it is challenged the patent holder will have to prove his ARP meets the requirements of the patent. If it's too basic or the patent is too broad, the patent may well be invalidated. C) I am curious why there is so much emphasis on CRP patents. Are most software patents are CRP patents?
- AlbertCory 4y ago
  virtually all software patents are CRP. You almost never see source code, as I said in the article.
kazinator 4y ago
No buildable source code with build instructions and a test suite validating key input/output pairs ... no patent.
alexccrist 4y ago
those DALL-E images are terrible
- ElfinTrousers 4y ago
  My reaction to this article was "hmm, interesting point, OH GOD WHAT HAPPENED TO THESE PEOPLE IN THE PHOTO SOMEONE CALL A DOCTOR"
- datpiff 4y ago
  Yep, much worse than some free stock images
Joel_Mckay 4y ago
While the authors post seems to try to critique a US legal issue, the auto-generated ambiguous nonsense content is kind of disrespectful to readers. Having gone though the Patent process several times, I have observed the following: 1. The company president was primarily focused on locking down the business IP anyway possible. This also bumped the valuation by around $300k each time. 2. People will clone low-hanging fruit, and simply ignore patent trolls in places Software Patents aren't valid. Note, going after users for dimes is a bad business model. 3. The author/programmer usually solves some key feature for a business use-case, and submits the draft to an IP legal firm. First-to-file patent systems essentially get flooded with business-intelligence cloners, and novelty can become rather illusive. 4. The lawyers and business owners try to strip any sensitive information, create the most generalized abstract interpretation of the IP, and convert English into obfuscated legalese. People want to capture a market, sue savvy cloners, and seize competitors inventory which _may_ violate IP. 5. The entire Patent is basically just describing the context of how the claims section is to be interpreted, and how the IP is related to other IP class areas. Note, generally this also means only the claims section itself at the end of the Patent is actually enforceable. 6. In a global economy, the cost to enforce IP is beyond the reach of most startup budgets. Thus, overly aggressive business owners tend to go bankrupt trying to imitate a large firms policies, and discover most funding channels will give a hard "No" to chasing Patent rights. 7. The best plans don't require secrecy, offer economic incentives encouraging competitor cooperation, and punish cloners in a tit-for-tat model. 8. While technically it was only a few thousand dollars to challenge pending Patents, as far as I can tell it is a very rare occurrence due to the volume of works. Personally, I think once source-code is published it should fall under copyright , and invalidate current/future associated Patents. =)
- jacquesm 4y ago
  > the auto-generated ambiguous nonsense content What do you mean with this?
  - AlbertCory 4y ago
    I think he means the Dall-E images. Which do give a visual illustration of some otherwise-dry concepts. Some people think anything humorous is disrespectful.
loonginthetooth 4y ago
[flagged]
- deleted 4y ago
  [deleted]
- bdowling 4y ago
  He’s also an uninformed dickhead. Here is where I stopped reading: > I’m not a lawyer but I can translate for you. The rest of it describes what he thinks patents should be, not what they actually are.
- dang 4y ago
  You can't break the site guidelines like this, no matter how much of a dickhead an author is or you feel they are. If you'd please review https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html and stick to the rules when posting here, we'd appreciate it.
denton-scratch 4y ago
I think the first software patents were for things like UI elements - the Lotus 1-2-3 design, or one-click ordering. I don't see any point in releasing code for something like that; the code is competely orthogonal to the design. You don't even need source to prove you are in posession of the invention; a working instantiation would seem quite sufficient. Code only becomes relevant if the "invention" amounts to an algorithm. But algorithms aren't eligible for patents are they? Well, they aren't here. So ironically, if you need to provide code to support your patent application, then you've proved you aren't eligible for a patent.
dig1 4y ago
Consider this: if math could be patented, IMHO we'd still be in the stone age. Maybe patents made sense two hundred years ago, but these days, they are mostly used as a tool for fighting between big corps and scaring the hell out of small players. On the other hand, if solo inventors do not know how to monetize their invention, they should give/sell it to someone who will know, not to milk the idea it for decades.
- pclmulqdq 4y ago
  > On the other hand, if solo inventors do not know how to monetize their invention, they should give/sell it to someone who will know, not to milk the idea it for decades. That's partly what patents are for. So a small inventor can sell a technology without getting reverse-engineered in the sales process. If they do get reverse-engineered, then there is a whole new set of patent customers who will buy the patents in order to sue over them.
tptacek 4y ago
A source code requirement would not meaningfully impede software patenting. The teeth of a patent are its claims, not its enablement. The premise of this post seems to be that a patenting entity would be required to disclose its actual commercial source code, but of course, were source code required, even given the best mode requirement, it would still be horseshit source code.
- dctoedt 4y ago
  > even given the best mode requirement The best-mode requirement was pretty much neutered as part of the America Invents Act, because: 1. USPTO patent examiners normally don't inquire about best mode unless there's a pretty-obvious failure; and 2. in litigation about an issued patent, "failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable ...." (35 U.S.C. § 282(b)(3)(A), at https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#d0e305845 https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l....)
AlbertCory 4y ago
HN'ers: Thanks! What a difference a title makes. Last week's article was more of an anti-software-patent screed, and ended with a vague statement about copyright. I got some feedback and realized the copyright part looked thrown in (which it was), and I took it out. That doesn't mean that copyright isn't well worth discussing, but I haven't spent as much time on that part of the law. This week's article is more focused on a specific issue, which would make a huge difference in the patent landscape. AMA.
raphlinus 4y ago
It's pretty easy to predict what would happen in practice if this policy proposal were adopted. An entire category of bullshit jobs would be created to write "source code" that met the regulatory requirements but had little connection to the actual code deployed in production. This code would largely be derived from the claims, and, like much patent language, be crafted to be as vague and general as possible. Most of this work could be automated by ChatGPT, as no insight is required. Another class of bullshit jobs would be created to interpret and analyze the code, as it's outside the skill set of lawyers and examiners. Any code published as part of a patent would immediately be anti-open source, as people actually creating things would be strongly discouraged from even looking at it, as doing so would support "willful infringement." The average level of code quality would be such that nobody would want to, anyway. There's lots that could be done to make the patent system more beneficial to society (including, in my personal opinion, dropping software patents entirely), but I don't think a code requirement would be particularly helpful.
- bell-cot 4y ago
  Maybe. Or, maybe such CodeGPT would become subject to obvious "does it actually work?" tests. Joe Average in the jury box might feel pretty confident saying "a Patent for an apple-peeler ain't valid if the so-called peeler completely fails to peel apples". Similar for software that fails to run, or to do anything resembling the claims.
  - nmz 4y ago
    At that rate, is the codegpt output any different than outputting from /dev/urandom?
- nerpderp82 4y ago
  You are wrong on this. A patent makes claims, patents should be shown to work, code is a proof of that. They are computational existence proofs. We should hold our systems to higher standards of rigor. You are shooting something down for how it could possibly be subverted, rather than do that, how about we think of ways that it could be made less corruptible? Is this not a pro-fatalistic stance? Not only should the patent require the code, the product should require the code to be held in escrow. And for safety critical systems, the formal checked models should be presented in a way the proves that the bits on the system were generated from the formally checked code. Would it fix all problems? Hell no! Would it prevent some entities from innovating in the market, hell yes! As it currently stands, you don't even have to have a working system. Corporations are effectively patenting problems, not solutions. Patents themselves are a worthless way of transferring knowledge, this is what needs to change.
gabereiser 4y ago
>Lawyers and politicians don’t want to solve a problem; they want to make a living from it. Lawyers want to add it to their practice areas, and politicians want to raise campaign funds from it. Solving it would defeat the purpose. Ugh, this is so true. We (US) stopped trying to solve problems after we created one of the biggest problems with the war on drugs. That was the last time we tried to solve anything. Everything else has been the quote. A debate to raise funds or add "expertise" feather in the cap so they can charge $500/hr to discuss it.
- gabereiser 4y ago
  For those outside the US. America went to war on people of color in the late 70s until 2014. It’s still the primary police handbook training guide for dealing with people of color. People of color is a racist way of saying Not White. We targeted the very social and economic policies we created for the poor and disenfranchised and then had the gall to be offended when they resorted to exactly what we created. This racism against black humans has been raging since 1776 in this country. With no signs of stopping. We would arrest people of color for drugs we put on the market and gave them ridiculous prison sentences where the white guy would walk with a fine, black people would get 10 years. Anyway, rant over, it’s fucked up. EDIT: Down voted to suppress the truth.
parentheses 4y ago
Thinking purely using a non legal mind trying to grasp legal concepts: If source code is akin to a machine whose inner workings can be patented, then data is akin to a physical object. A physical object could be a machine or it could be a creation made by a machine or both. Data is similar - it can be made by software or it could be software or both. Is this the right way to think about how the legal system views software and data? PS I’m in the US but interested to hear how this may vary from one country to another.
gumballindie 4y ago
Why do we even bother? Ai will cause mass unemployment among software engineers, some of whom have built the free software that ai companies now monetise, and none of this will matter.
frob 4y ago
When I was at one of the FAANGs, the corporate legal people wanted to make a patent for a recommendation system I was the tech lead on. They called me into a room with two patent layers for a disclosure meeting. In general, I have an issue with software parents, but I definitely didn't believe our work was patentable since everything seemed like an obvious extension of standard practices to me (think agents reaponding to events). I then proceeded to spend the next hour telling the lawyers that there is nothing novel in our system, that all of the connections and features would be obvious and intuitive to anyone familiar with the trade of software engineering, that all technologies in the system are common practices, and just in general refusing to let them reframe it in legalese to make it sound like something it wasn't. I could tell they were getting frustrated by the end, but it was one of the best hours I have ever spent. I'm proud I didn't let a megacorp patent standard software practices.
- judge2020 4y ago
  Did they lead with "we award $x for each patent"?
  - judge2020 4y ago
    I should say - 'did they forget to lead with'
- EGreg 4y ago
  Spoiler alert: they patented it anyway [1] after he left [2] [1] https://m.youtube.com/watch?v=j_1lIFRdnhA https://m.youtube.com/watch?v=j_1lIFRdnhA [2] https://m.youtube.com/watch?v=O95fnszzI6I https://m.youtube.com/watch?v=O95fnszzI6I
  - frob 4y ago
    I check for it every few months. If they do publish it, I plan on filing a challenge with the PTO. It has now been long enough that I don't think it will be published.
- freejazz 4y ago
vivegi 4y ago
Not every jurisdiction allows computer programs or algorithms to be patented. Having said that, a jurisdiction such as the US that allows software to be patented, already doesn't require source code as part of the patent application/regsitration/grant process. Good luck trying to invalidate every active software patent existing as on date with this clause. Ain't gonna happen!
stonemetal12 4y ago
While I do think every software patent I have seen fails the enablement requirement (there is a bit of selection bias there I have only looked at ones people call out as horrific), I think requiring source is a bad idea. Something like what would come out of a clean room reverse engineering effort should be good enough.
kgc 4y ago
Maybe just submit the executable. That would protect the code and also prove the existence of it.
indymike 4y ago
How about we just stop the madness on software patents, period?
deleted 4y ago
[deleted]
fargle 4y ago
notwithstanding the obvious arguments that patents are spectacularly unhelpful at leveling the playing field for at least software and pharma, pedantically shouldn't it be: No Source Code => No Patent

329 points by AlbertCory 4y ago

Working (!) source code should absolutely be required BUT there should also be a requirement that it not be unnecessarily complicated or obfuscated. Otherwise malicious compliance would be common.

mindvirus 4y ago
I feel like that could sort itself out. With overly complicated or obfuscated code, it would hopefully be hard to prove infringement.
- AlbertCory 4y ago
  You don't infringe the source code, you infringe the claims (as has always been the case). The source code provides the Written Description and Enablement requirements.

nullc 4y ago

Patent applications I've been party to have included source code (maybe all of them? don't recall). I think it should be required. I'm not confident that it would actually solve a lot, but it would help. We mentioned source code in a position paper on patent policy I helped write a number of years ago, https://www.ftc.gov/sites/default/files/documents/public_comments/request-comments-and-announcement-workshop-standard-setting-issues-project-no.p111204-00020%C2%A0/00020-60532.pdf https://www.ftc.gov/sites/default/files/documents/public_com... --- For software, such disclosures are particularly poor, as the October 2003 FTC report on The Proper Balance of Competition and Patent Law Policy [7] notes: “Several panelists discounted the value of patent disclosures, because the disclosure of a software product’s underlying source code is not required.” [7] http://www.ftc.gov/os/2003/10/innovationrpt.pdf http://www.ftc.gov/os/2003/10/innovationrpt.pdf --- The best counterargument I can make is that applicants would provide obfuscated or fake source code, just like the many other ways they cheat the application process. Still better than not requiring it. I liked the point that most counterarguments are effectively arguments that the patent absent the source doesn't constitute disclosure. > Believe it or not, many of the examiners in software have Computer Science backgrounds and are perfectly capable of this. I assume it's still the case that you need an appropriately shaped engineering degree, which does exclude many CS people. But absolutely it wouldn't be to surprising to see an examiner try to run the code. Even if they're not CS people they're technical and smart and would figure it out quick enough.

onion2k 4y ago

A software patent without source code (or at least psuedo code) is effectively patenting "all possible implementions of this idea". That should be considered too broad.

MattPalmer1086 4y ago
That's what a patent is though. Protection for the idea, not the implementation. You can disagree that software concepts can be patented (I tend towards this view), but you can't have a patent that only protects a particular implementation. That would be copyright.
- buran77 4y ago
  Wouldn't I be able to patent the idea of landing a rocket using a reverse launch process and stabilization fins and jets, even if I'm not even capable of landing a stone? If the implementation doesn't matter than I just locked everyone else out of landing rockets for decades. The idea is worth something but so is the implementation because ideas are generic and the more specific you make them, the more you actually define an implementation, in the physical world at least.
  - bdowling 4y ago
    > even if I'm not even capable of landing a stone? No, because the disclosure has to enable a person of ordinary skill in the art to practice the full scope of the invention. This is called the “enablement” requirement.
  - 1jbdg 4y ago
    Based on the idea only you’d struggle to describe that in sufficient detail that a relevant expert could use the invention…
  - abhibeckert 4y ago
    Your patent has to fully describe how the invention works. And if it doesn't work at all, then who cares if you own a patent for it, it's a useless invention anyway. If your rocket does work, then yes being able to lock everyone else out of it for decades is the entire point. But once those decades are over, anyone else can copy your idea, which has been documented for all of eternity. There's an almost endless list of inventions before patents that were never made public, and nobody knows how they worked. Unfortunately, that's the idea for how patents are supposed to work. In the real world what we have is patent trolls.

detuur 4y ago

Software patents have never contributed anything to society. Software is materially antithetical to patents. You can only ever clearly observe the output of software, and in many cases it's either hard or impossible to investigate the actual method (i.e. the patentable part). Regular patents work because they are easily** enforceable. If your competitor brings a rip-off of your machine on the market, you can buy one, take it apart, see the similarities with your own eyes, and have a case. If Meta rips off your method to apply an image filter, you better have 10 years of experience in reverse-engineering obfuscated code. Actually, don't even bother. The code runs on their servers and you will never have the opportunity to even investigate it. The upside to all of this is that a fun, creative interpretation of this exists. Which is that if you really want software patents, obfuscation and DRM should be forbidden so that patent claims can be investigated. **: Yeah I know that's no longer true in many cases.

chii 4y ago
> Software patents have never contributed anything to society. this is very noticeable because the truly useful software algorithms don't get patented, they get protection via trade secrets instead (and enforce it via courts and various internal processes). I say abolish software patents. Software copyright is good enough.
- marginalia_nu 4y ago
  > Software copyright is good enough. To play the devil's advocate: Is it though? Especially recently we've seen the widespread acceptance of copyright and license laundering through large machine learning systems such as copilot and chatgpt, backed by enough microsoft laywers to prevent meaningful push back from the copyright owners. They'll output verbatim copies of what was previously copyrighted code. If it is true that software copyright can be cleaned away in such a fashion, maybe patenting the algorithm itself actually is necessary to avoid big tech companies like microsoft from forcibly strip mining the ideas of independent creators.
  - sam_lowry_ 4y ago

pabs3 4y ago

I would also say No Source Code == No Copyright, we should require companies escrow their software source code so that when their software becomes abandonware, users can continue development of it. This would also get closer to a right to repair software.

mschuster91 4y ago
Add on that No Tooling == No Copyright. Source code is one thing, but particularly for large projects or ones ... creatively abusing compiler features depending on a specific version, you're straight fucked without the build environment used. And that's not all... there is one elephant left in the room: code signing keys. Like, what is it worth when you have the source code and the build environment, but the computer running it is locked down hard by an actually capable TEE? For now, a lot of these can be bypassed by the arcane art of power glitching, but that won't be the case forever - and some console makers, like Microsoft or Sony prior to removing Linux from the PS3, took away the incentive many elite hackers had to make homebrew possible so it's a good question if there will ever be an Xbox Series X modchip.
- pabs3 4y ago
  Agreed. That is a big part of why copyleft licenses like the GPL ensure users get the right to read, reuse, rebuild, reinstall software. https://sfconservancy.org/blog/2021/jul/23/tivoization-and-the-gpl-right-to-install/ https://sfconservancy.org/blog/2021/jul/23/tivoization-and-t... https://sfconservancy.org/blog/2021/mar/25/install-gplv2/ https://sfconservancy.org/blog/2021/mar/25/install-gplv2/
freejazz 4y ago
That's already the case with copyright, which is distinct from patent.
- fluoridation 4y ago
  You can, in fact, copyright closed source software.

djmips 4y ago

But who reviews the source code? Could you submit broken code? Code hastily written by ChatGPT?

anonymous_sorry 4y ago
From the article: > This is exactly what the PTO examiner would do. Believe it or not, many of the examiners in software have Computer Science backgrounds and are perfectly capable of this. It is not black magic anymore.

hghid 4y ago

Nice idea, but at some point GPT + "generate code to implement this patent", may develop plausible enough code to satisfy most Patent Examiners. I don't see this fixing the issue in the longer term - maybe a "use it or lost it" rule + much shorter enforcement period for software patents is what is needed?

AlbertCory 4y ago
I guess you haven't read many patent claims.

xipix 4y ago

Something not mentioned here is that software itself is rarely the subject of a patent. Instead, it is a "computer system running software". This, I think, is a trick to get around software itself not being patentable in some jurisdictions. I really like this proposal but it lays bare the fact that the invention lies entirely within the software itself. When the patent industry has been pretending for years that the "invention" is a hardware thing that could, optionally, use software.

bdowling 4y ago
We sometimes call them “software-implemented inventions.”
AlbertCory 4y ago
right, and next week's article is going to be about that (sort of). The Facebook patent whose diagram I showed was all filed after the Alice decision that was supposed to clear out bad software patents.

hnbad 4y ago

A good bunch of comments here tapping into the old fallacy of "intellectual property is {good,bad} except in these other domains I don't understand the problems of and my work isn't directly affected by". I've yet to see a case against software patents that doesn't also apply to all other modern patents rather than being compared to some easily comprehensible mechanical contraptions from the 1920s.

Kim_Bruning 4y ago
I once talked with someone who was writing a book about (among other things) how patents delayed development of aviation in the USA so much that they entered WW I without any aircraft of their own. (Despite the fact that the airplane was <ostensibly> invented in Ohio). So, your view might well be correct.
- hnbad 4y ago
  Oh, to be clear, I'm not saying intellectual property is good or bad, or at least what I'm saying applies either way. What I'm saying is that if you make an argument either way for one specific domain you should consider whether it's really an argument about that specific domain or if that's just the only one for which you thought this through. People in tech are used to treating tech as a special case so it's worth considering whether you've really found the exception or just found out that you actually disagree with the rule. Sure, software patents seem special if you contrast them with ye olde fashioned mechanical device but that's arguing against a strawman.
  - thfuran 4y ago
    I don't think they seem particularly special even then. Patenting an algorithm to be implemented by levers doesn't seem so categorically different from patenting one to be implemented by transistors.
    - AlbertCory 4y ago
      No, they are different. Read the automatic windshield wiper patents described in Flash of Genius. They provide circuit diagrams and explanations of why the wipers move faster when there's a lot of rain.

BartjeD 4y ago

I enjoyed reading it, but I have a few comments from a (non US) legal perspective. I also shared these in the substack. I put them here for discussion. A) One import aspect not hightlighted about the patent system is that it's intended to only verify the authenticity of a patent (substantially) if a conflict arises when the holder tries to enforce it. The checks to register a patent are comparatively minimal and formal. B) If companies file an ARP sample dated to the time they filed the patent they have already proven that they 'built' the software idea which the patent covers. The point of the patent is then to describe the application is sufficient detail that it may be enforced. If it is challenged the patent holder will have to prove his ARP meets the requirements of the patent. If it's too basic or the patent is too broad, the patent may well be invalidated. C) I am curious why there is so much emphasis on CRP patents. Are most software patents are CRP patents?

AlbertCory 4y ago
virtually all software patents are CRP. You almost never see source code, as I said in the article.

kazinator 4y ago

No buildable source code with build instructions and a test suite validating key input/output pairs ... no patent.

alexccrist 4y ago

those DALL-E images are terrible

ElfinTrousers 4y ago
My reaction to this article was "hmm, interesting point, OH GOD WHAT HAPPENED TO THESE PEOPLE IN THE PHOTO SOMEONE CALL A DOCTOR"
datpiff 4y ago
Yep, much worse than some free stock images

Joel_Mckay 4y ago

While the authors post seems to try to critique a US legal issue, the auto-generated ambiguous nonsense content is kind of disrespectful to readers. Having gone though the Patent process several times, I have observed the following: 1. The company president was primarily focused on locking down the business IP anyway possible. This also bumped the valuation by around $300k each time. 2. People will clone low-hanging fruit, and simply ignore patent trolls in places Software Patents aren't valid. Note, going after users for dimes is a bad business model. 3. The author/programmer usually solves some key feature for a business use-case, and submits the draft to an IP legal firm. First-to-file patent systems essentially get flooded with business-intelligence cloners, and novelty can become rather illusive. 4. The lawyers and business owners try to strip any sensitive information, create the most generalized abstract interpretation of the IP, and convert English into obfuscated legalese. People want to capture a market, sue savvy cloners, and seize competitors inventory which _may_ violate IP. 5. The entire Patent is basically just describing the context of how the claims section is to be interpreted, and how the IP is related to other IP class areas. Note, generally this also means only the claims section itself at the end of the Patent is actually enforceable. 6. In a global economy, the cost to enforce IP is beyond the reach of most startup budgets. Thus, overly aggressive business owners tend to go bankrupt trying to imitate a large firms policies, and discover most funding channels will give a hard "No" to chasing Patent rights. 7. The best plans don't require secrecy, offer economic incentives encouraging competitor cooperation, and punish cloners in a tit-for-tat model. 8. While technically it was only a few thousand dollars to challenge pending Patents, as far as I can tell it is a very rare occurrence due to the volume of works. Personally, I think once source-code is published it should fall under copyright , and invalidate current/future associated Patents. =)

jacquesm 4y ago
> the auto-generated ambiguous nonsense content What do you mean with this?
- AlbertCory 4y ago
  I think he means the Dall-E images. Which do give a visual illustration of some otherwise-dry concepts. Some people think anything humorous is disrespectful.

loonginthetooth 4y ago

[flagged]

deleted 4y ago
[deleted]
bdowling 4y ago
He’s also an uninformed dickhead. Here is where I stopped reading: > I’m not a lawyer but I can translate for you. The rest of it describes what he thinks patents should be, not what they actually are.
dang 4y ago
You can't break the site guidelines like this, no matter how much of a dickhead an author is or you feel they are. If you'd please review https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html and stick to the rules when posting here, we'd appreciate it.

denton-scratch 4y ago

I think the first software patents were for things like UI elements - the Lotus 1-2-3 design, or one-click ordering. I don't see any point in releasing code for something like that; the code is competely orthogonal to the design. You don't even need source to prove you are in posession of the invention; a working instantiation would seem quite sufficient. Code only becomes relevant if the "invention" amounts to an algorithm. But algorithms aren't eligible for patents are they? Well, they aren't here. So ironically, if you need to provide code to support your patent application, then you've proved you aren't eligible for a patent.

dig1 4y ago

Consider this: if math could be patented, IMHO we'd still be in the stone age. Maybe patents made sense two hundred years ago, but these days, they are mostly used as a tool for fighting between big corps and scaring the hell out of small players. On the other hand, if solo inventors do not know how to monetize their invention, they should give/sell it to someone who will know, not to milk the idea it for decades.

pclmulqdq 4y ago
> On the other hand, if solo inventors do not know how to monetize their invention, they should give/sell it to someone who will know, not to milk the idea it for decades. That's partly what patents are for. So a small inventor can sell a technology without getting reverse-engineered in the sales process. If they do get reverse-engineered, then there is a whole new set of patent customers who will buy the patents in order to sue over them.

tptacek 4y ago

A source code requirement would not meaningfully impede software patenting. The teeth of a patent are its claims, not its enablement. The premise of this post seems to be that a patenting entity would be required to disclose its actual commercial source code, but of course, were source code required, even given the best mode requirement, it would still be horseshit source code.

dctoedt 4y ago
> even given the best mode requirement The best-mode requirement was pretty much neutered as part of the America Invents Act, because: 1. USPTO patent examiners normally don't inquire about best mode unless there's a pretty-obvious failure; and 2. in litigation about an issued patent, "failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable ...." (35 U.S.C. § 282(b)(3)(A), at https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#d0e305845 https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l....)

AlbertCory 4y ago

HN'ers: Thanks! What a difference a title makes. Last week's article was more of an anti-software-patent screed, and ended with a vague statement about copyright. I got some feedback and realized the copyright part looked thrown in (which it was), and I took it out. That doesn't mean that copyright isn't well worth discussing, but I haven't spent as much time on that part of the law. This week's article is more focused on a specific issue, which would make a huge difference in the patent landscape. AMA.

raphlinus 4y ago

It's pretty easy to predict what would happen in practice if this policy proposal were adopted. An entire category of bullshit jobs would be created to write "source code" that met the regulatory requirements but had little connection to the actual code deployed in production. This code would largely be derived from the claims, and, like much patent language, be crafted to be as vague and general as possible. Most of this work could be automated by ChatGPT, as no insight is required. Another class of bullshit jobs would be created to interpret and analyze the code, as it's outside the skill set of lawyers and examiners. Any code published as part of a patent would immediately be anti-open source, as people actually creating things would be strongly discouraged from even looking at it, as doing so would support "willful infringement." The average level of code quality would be such that nobody would want to, anyway. There's lots that could be done to make the patent system more beneficial to society (including, in my personal opinion, dropping software patents entirely), but I don't think a code requirement would be particularly helpful.

bell-cot 4y ago
Maybe. Or, maybe such CodeGPT would become subject to obvious "does it actually work?" tests. Joe Average in the jury box might feel pretty confident saying "a Patent for an apple-peeler ain't valid if the so-called peeler completely fails to peel apples". Similar for software that fails to run, or to do anything resembling the claims.
- nmz 4y ago
  At that rate, is the codegpt output any different than outputting from /dev/urandom?
nerpderp82 4y ago
You are wrong on this. A patent makes claims, patents should be shown to work, code is a proof of that. They are computational existence proofs. We should hold our systems to higher standards of rigor. You are shooting something down for how it could possibly be subverted, rather than do that, how about we think of ways that it could be made less corruptible? Is this not a pro-fatalistic stance? Not only should the patent require the code, the product should require the code to be held in escrow. And for safety critical systems, the formal checked models should be presented in a way the proves that the bits on the system were generated from the formally checked code. Would it fix all problems? Hell no! Would it prevent some entities from innovating in the market, hell yes! As it currently stands, you don't even have to have a working system. Corporations are effectively patenting problems, not solutions. Patents themselves are a worthless way of transferring knowledge, this is what needs to change.

gabereiser 4y ago

>Lawyers and politicians don’t want to solve a problem; they want to make a living from it. Lawyers want to add it to their practice areas, and politicians want to raise campaign funds from it. Solving it would defeat the purpose. Ugh, this is so true. We (US) stopped trying to solve problems after we created one of the biggest problems with the war on drugs. That was the last time we tried to solve anything. Everything else has been the quote. A debate to raise funds or add "expertise" feather in the cap so they can charge $500/hr to discuss it.

gabereiser 4y ago
For those outside the US. America went to war on people of color in the late 70s until 2014. It’s still the primary police handbook training guide for dealing with people of color. People of color is a racist way of saying Not White. We targeted the very social and economic policies we created for the poor and disenfranchised and then had the gall to be offended when they resorted to exactly what we created. This racism against black humans has been raging since 1776 in this country. With no signs of stopping. We would arrest people of color for drugs we put on the market and gave them ridiculous prison sentences where the white guy would walk with a fine, black people would get 10 years. Anyway, rant over, it’s fucked up. EDIT: Down voted to suppress the truth.

parentheses 4y ago

Thinking purely using a non legal mind trying to grasp legal concepts: If source code is akin to a machine whose inner workings can be patented, then data is akin to a physical object. A physical object could be a machine or it could be a creation made by a machine or both. Data is similar - it can be made by software or it could be software or both. Is this the right way to think about how the legal system views software and data? PS I’m in the US but interested to hear how this may vary from one country to another.

gumballindie 4y ago

Why do we even bother? Ai will cause mass unemployment among software engineers, some of whom have built the free software that ai companies now monetise, and none of this will matter.

frob 4y ago

When I was at one of the FAANGs, the corporate legal people wanted to make a patent for a recommendation system I was the tech lead on. They called me into a room with two patent layers for a disclosure meeting. In general, I have an issue with software parents, but I definitely didn't believe our work was patentable since everything seemed like an obvious extension of standard practices to me (think agents reaponding to events). I then proceeded to spend the next hour telling the lawyers that there is nothing novel in our system, that all of the connections and features would be obvious and intuitive to anyone familiar with the trade of software engineering, that all technologies in the system are common practices, and just in general refusing to let them reframe it in legalese to make it sound like something it wasn't. I could tell they were getting frustrated by the end, but it was one of the best hours I have ever spent. I'm proud I didn't let a megacorp patent standard software practices.

judge2020 4y ago
Did they lead with "we award $x for each patent"?
- judge2020 4y ago
  I should say - 'did they forget to lead with'
EGreg 4y ago
Spoiler alert: they patented it anyway [1] after he left [2] [1] https://m.youtube.com/watch?v=j_1lIFRdnhA https://m.youtube.com/watch?v=j_1lIFRdnhA [2] https://m.youtube.com/watch?v=O95fnszzI6I https://m.youtube.com/watch?v=O95fnszzI6I
- frob 4y ago
  I check for it every few months. If they do publish it, I plan on filing a challenge with the PTO. It has now been long enough that I don't think it will be published.
freejazz 4y ago

vivegi 4y ago

Not every jurisdiction allows computer programs or algorithms to be patented. Having said that, a jurisdiction such as the US that allows software to be patented, already doesn't require source code as part of the patent application/regsitration/grant process. Good luck trying to invalidate every active software patent existing as on date with this clause. Ain't gonna happen!

stonemetal12 4y ago

While I do think every software patent I have seen fails the enablement requirement (there is a bit of selection bias there I have only looked at ones people call out as horrific), I think requiring source is a bad idea. Something like what would come out of a clean room reverse engineering effort should be good enough.

kgc 4y ago

Maybe just submit the executable. That would protect the code and also prove the existence of it.

indymike 4y ago

How about we just stop the madness on software patents, period?

deleted 4y ago

[deleted]

fargle 4y ago

notwithstanding the obvious arguments that patents are spectacularly unhelpful at leveling the playing field for at least software and pharma, pedantically shouldn't it be: No Source Code => No Patent