11 ms·

Why Software Patents are Bad, Period. https://caseymuratori.com/blog_0027 https://caseymuratori.com/blog_0027 Patents are out of control, and they’re hurting

by myshpa 3y ago

Why Software Patents are Bad, Period. https://caseymuratori.com/blog_0027 https://caseymuratori.com/blog_0027 Patents are out of control, and they’re hurting innovation https://www.learnliberty.org/blog/patents-are-out-of-control-and-theyre-hurting-innovation/ https://www.learnliberty.org/blog/patents-are-out-of-control... Economic and Game Theory Against Intellectual Monopoly https://web.archive.org/web/20120121014753/https://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm https://web.archive.org/web/20120121014753/https://levine.ss... PATENTS AND INNOVATION IN ECONOMIC HISTORY https://gwern.net/doc/economics/2016-moser.pdf https://gwern.net/doc/economics/2016-moser.pdf Historical record shows how intellectual property systematically slowed down innovation https://web.archive.org/web/20140306012646/http://blog.p2pfoundation.net/historical-record-shows-how-intellectual-property-systematically-slowed-down-innovation/2012/03/27 https://web.archive.org/web/20140306012646/http://blog.p2pfo... Criticism of patents https://en.wikipedia.org/wiki/Criticism_of_patents https://en.wikipedia.org/wiki/Criticism_of_patents

gregman1 3y ago
There are no software patents in EU (maybe even in the whole Europe) with exception for specially designed hardware. Idk how that works.
- pclmulqdq 3y ago
  There are no software patents in the US either, as of 2014, except ones that have a physical effect on the world. Compression, encryption, and data structures are basically the only allowed software patents.
- pbhjpbhj 3y ago
  There are software patents in EPC countries (which includes EU, UK), but not software patents as such. A sibling noted that USA now requires a real-world effect, that change apparently mirrors the situation under EPC: software here can be patented if it makes a technical contribution, ie it must do something outside of the computer (or something that simulates something outside of a computer! see Halliburton). What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess. It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom). Any opinions here are my own and do not relate to my employment. This is not legal advice.
- rayiner 3y ago
  EU law only excludes patents for software “as such.” https://www.iam-media.com/regionindustry-guide/patents-in-europe/2019/article/securing-software-patents-through-the-epo https://www.iam-media.com/regionindustry-guide/patents-in-eu.... You can still patent inventions embodied primarily in software so long as it’s in the context of an industrial or consumer application. So you can’t patent RSA, but you can patent a phone that uses RSA to securely transfer data. Since the Supreme Court’s Alice decision in 2013, which tightened the longstanding exclusion to patentability for “abstract ideas,” it’s probably slightly harder to get (or keep) a software patent in the US than in the EU. Just because US courts are more willing to look past hardware aspects of an invention to see if the “gist” of the invention is an abstract idea implemented in software.
- GoblinSlayer 3y ago
  When hardware is designed to be controlled by software, then you can't exclude software from the patent, because such patent would describe nonworking hardware. But that software isn't patentable separate from hardware.
- loup-vaillant 3y ago
  Here’s a thought experiment: take a look at the Tillitis Key: https://tillitis.se https://tillitis.se It’s a security dongle that can execute arbitrary programs. It’s hardware is actually a RISC-V core implemented on top of an FPGA, with some firmware on top to load the user programs. Now the firmware is a kind of software, so patent should not apply, right? Heck one could even argue that the configuration of the FPGA should not count either, only the FPGA itself may count. There’s a problem though: the keys are locked. They kinda have to be to deliver their security promises, and prevent the secret key in the device from leaking, either by accident or by adversarial extraction. But then what do I have? A hardened piece of… hardware actually. And all the patents that didn’t apply "because software", now do. Or maybe they do not, I’m not a lawyer. I just wanted to highlight how fuzzy the frontier could be.
  - JoachimS 3y ago
    And you will be able to buy TKeys that are unlocked, and you (your organization) will then be able to personalize and lock them yourself. Does it then start out as SW, and then become hadrdware? Also not a lawyer. ;-) https://shop.tillitis.se/ https://shop.tillitis.se/
JumpCrisscross 3y ago
I’m not sure radicalising this debate helps anyone. We are trying for a narrow victory of preserving IPR. Turning that into a broader argument about software patents plays into the opposition’s hands.
- bityard 3y ago
  As long as people keep focusing solely on these "narrow victories" in order to simply maintain the broken status quo, the broader abuse of the patent system to serve as a legal anti-competitive moat in service of large companies who can afford expensive lawyers will continue. It's not radical to believe that.
  - JumpCrisscross 3y ago
    > long as people keep focusing solely on these "narrow victories" in order to simply maintain the broken status quo I’m not saying drop the fight. Just to show a modicum of strategy. Turning an IPR fight into a patent debate lets those looking to quash IPR win while doing nothing for the broader debate. What is smart, tactically, is doing exactly this when you oppose something: overscope so people disengage or get distracted in a juicier discussion while forgetting to send the relevant message to their elected or regulator.
    - jjk166 3y ago
      On the contrary, continuously applying fresh duct tape to a fundamentally broken system allowing it to limp along allows the opponents to point to it and say "see, the system works as is" and the bias in favor of upholding the status quo wins out. By allowing things to fail, you force people to get engaged to do something to fix the problem, at which point actual change becomes possible.
      - thfuran 3y ago
        Allowing important systems to fail is not without cost.
judge2020 3y ago
I'm starting to believe that all patents are at best ineffective, and at worse harmful in a globalized world, because it's not like airpods clones off aliexpress are actually being stopped at the port all too often.
- rocqua 3y ago
  I could imagine patents limited to physical designs, with a lifespan of say 5 years to actually be beneficial to innovation. Perhaps also a requirement to license patents at a 'reasonable rate'. I'm thinking of the 'sawstop' and 'festool domino' woodworking tools here. Which are important innovations that were probably motivated by patents, but whose patents have run long.
  - xahrepap 3y ago
    I actually think that Sawstop (in general. Might be some details that are bogus) is a great example of the patent system working as intended. The inventor reached out to several saw makers to license his new invention. None of them took it seriously. So he went and started a company with his new patent and became successful. Then other companies (Bosch specifically) tried to rip his tech off after they saw how effective it is, and he got to sue them and win. Also, their patents are about to or have already expired (https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sawstop_patents_really_about_to_expire/ https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sa...) Sounds like the 20 years gave him just enough time to: 1. Attempt to license the product and fail 2. Create a company 3. Market the company / product effectively 4. Exit ( https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-tooltechnic-systems/ https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-t... ) And now competition will begin to roll out their similar saws. I think 5 years would've been far too short for him. He would've been squashed. There would've been no motivation for companies to license his tech or buy out his company. They would've just waited 5 measly years and then stomped him. Now. If this was software, this whole thing would've played out in what? 5 years? 10 tops? So 20 years, to me, seems to be about right for some things. but absolutely TERRIBLE for others.
    - 3y ago
drschwabe 3y ago
Thanks for the links. How do you suggest startup entrepreneurs work around the broader moral dillemma here? On one had, we shouldn't feed the flames but on the other hand - we may need a foundation of patents for defensive measure or to reaslitically compete against the likes of IBM who have a gajillion patents. And I'm aware of at least one government grant programs that requires patents apart of their application process. From what I can asertain this is otherwise money on the table, after meeting that prerequsite. Are you suggesting we walk away from technology grants and just wing it with regards to what may happen when IBM legal team (or other patent troll) comes knocking ?
- joemullin 3y ago
  Can you point me to the government grant program that requires patents as part of the application process? That is potentially very concerning. I would be interested to learn more.
  - drschwabe 3y ago
    It's a Canadian tech grant; non-dilluting - and they don't explicitly specify it is a requirement, but from the rep directly working for the program and anyone who I've talked to who has applied to the program your chances of getting the grant are basically zero if there is no IP. Coincidentally, they have another smaller grant you can apply for that goes direct to a service provider of your choice; and basically they suggest you use this first to pay for a law firm to get a patent started and then apply for the larger grant thereafter.
  - varispeed 3y ago
    I've personally witnessed venture capital firms requiring patent filings as a prerequisite for funding. An acquaintance of mine once worked for a startup where the team was diverted from product development to ideation on patentable processes. The focus was less on innovation and more on creating a unique claim to secure funding, which I find misguided. The VC, instead of nurturing the inventive process, largely contributed to the crafting of a patent application. The objective was to design it in such a way that it was cryptic and as widely applicable as possible. Despite its questionable practices, the patent was approved, leading to the subsequent funding of the startup. However, the market didn't respond well to the idea, necessitating a pivot. Meanwhile, there were other companies independently pursuing similar ideas. They could have invested significant time and resources, unaware that they were infringing on an existing patent. It's a speculative guess, but I can't help but wonder if the VC fund is vigilantly searching for successful implementations of the patented idea, ready to initiate lawsuits for patent infringement. This illustrates the potential misuse of patents, which, rather than fostering innovation, sometimes stifle it.
varispeed 3y ago
Hardware patents are bad too. Even more bad are those that cover both hardware and simulation of hardware in software domain. For example, someone "invented" a circuit that lets you control an analogue filter parameters in a certain way. Then also was granted patent for a software that mimics behaviour of such circuit. As if someone found a loophole to patent mathematical formulas. Either people that grant patents are dumb or I don't know.
- kmeisthax 3y ago
  USPTO patent examiners are notoriously not granted enough time to review all submissions.
EGreg 3y ago
I am glad Hacker News is still against massively centralized things of SOME kind. I remember when the cypherpunks here were in favor of blockchain and crypto. The latest zeitgeist of being against decentralized stuff (witness the hate of plebbit) is leading the “hackers” here to learned helplessness and support online feudalism (big tech monopolies). And I was worried people started to embrace patents too. Y’all will love decentralization next summer again.
puvxiolo 3y ago
Now I am afraid of writing solutions to problems that are already solved for fun.

by myshpa 3y ago

gregman1 3y ago

There are no software patents in EU (maybe even in the whole Europe) with exception for specially designed hardware. Idk how that works.

pclmulqdq 3y ago
There are no software patents in the US either, as of 2014, except ones that have a physical effect on the world. Compression, encryption, and data structures are basically the only allowed software patents.
pbhjpbhj 3y ago
There are software patents in EPC countries (which includes EU, UK), but not software patents as such. A sibling noted that USA now requires a real-world effect, that change apparently mirrors the situation under EPC: software here can be patented if it makes a technical contribution, ie it must do something outside of the computer (or something that simulates something outside of a computer! see Halliburton). What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess. It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom). Any opinions here are my own and do not relate to my employment. This is not legal advice.
rayiner 3y ago
EU law only excludes patents for software “as such.” https://www.iam-media.com/regionindustry-guide/patents-in-europe/2019/article/securing-software-patents-through-the-epo https://www.iam-media.com/regionindustry-guide/patents-in-eu.... You can still patent inventions embodied primarily in software so long as it’s in the context of an industrial or consumer application. So you can’t patent RSA, but you can patent a phone that uses RSA to securely transfer data. Since the Supreme Court’s Alice decision in 2013, which tightened the longstanding exclusion to patentability for “abstract ideas,” it’s probably slightly harder to get (or keep) a software patent in the US than in the EU. Just because US courts are more willing to look past hardware aspects of an invention to see if the “gist” of the invention is an abstract idea implemented in software.
GoblinSlayer 3y ago
When hardware is designed to be controlled by software, then you can't exclude software from the patent, because such patent would describe nonworking hardware. But that software isn't patentable separate from hardware.
loup-vaillant 3y ago
Here’s a thought experiment: take a look at the Tillitis Key: https://tillitis.se https://tillitis.se It’s a security dongle that can execute arbitrary programs. It’s hardware is actually a RISC-V core implemented on top of an FPGA, with some firmware on top to load the user programs. Now the firmware is a kind of software, so patent should not apply, right? Heck one could even argue that the configuration of the FPGA should not count either, only the FPGA itself may count. There’s a problem though: the keys are locked. They kinda have to be to deliver their security promises, and prevent the secret key in the device from leaking, either by accident or by adversarial extraction. But then what do I have? A hardened piece of… hardware actually. And all the patents that didn’t apply "because software", now do. Or maybe they do not, I’m not a lawyer. I just wanted to highlight how fuzzy the frontier could be.
- JoachimS 3y ago
  And you will be able to buy TKeys that are unlocked, and you (your organization) will then be able to personalize and lock them yourself. Does it then start out as SW, and then become hadrdware? Also not a lawyer. ;-) https://shop.tillitis.se/ https://shop.tillitis.se/

JumpCrisscross 3y ago

I’m not sure radicalising this debate helps anyone. We are trying for a narrow victory of preserving IPR. Turning that into a broader argument about software patents plays into the opposition’s hands.

bityard 3y ago
As long as people keep focusing solely on these "narrow victories" in order to simply maintain the broken status quo, the broader abuse of the patent system to serve as a legal anti-competitive moat in service of large companies who can afford expensive lawyers will continue. It's not radical to believe that.
- JumpCrisscross 3y ago
  > long as people keep focusing solely on these "narrow victories" in order to simply maintain the broken status quo I’m not saying drop the fight. Just to show a modicum of strategy. Turning an IPR fight into a patent debate lets those looking to quash IPR win while doing nothing for the broader debate. What is smart, tactically, is doing exactly this when you oppose something: overscope so people disengage or get distracted in a juicier discussion while forgetting to send the relevant message to their elected or regulator.
  - jjk166 3y ago
    On the contrary, continuously applying fresh duct tape to a fundamentally broken system allowing it to limp along allows the opponents to point to it and say "see, the system works as is" and the bias in favor of upholding the status quo wins out. By allowing things to fail, you force people to get engaged to do something to fix the problem, at which point actual change becomes possible.
    - thfuran 3y ago
      Allowing important systems to fail is not without cost.

judge2020 3y ago

I'm starting to believe that all patents are at best ineffective, and at worse harmful in a globalized world, because it's not like airpods clones off aliexpress are actually being stopped at the port all too often.

rocqua 3y ago
I could imagine patents limited to physical designs, with a lifespan of say 5 years to actually be beneficial to innovation. Perhaps also a requirement to license patents at a 'reasonable rate'. I'm thinking of the 'sawstop' and 'festool domino' woodworking tools here. Which are important innovations that were probably motivated by patents, but whose patents have run long.
- xahrepap 3y ago
  I actually think that Sawstop (in general. Might be some details that are bogus) is a great example of the patent system working as intended. The inventor reached out to several saw makers to license his new invention. None of them took it seriously. So he went and started a company with his new patent and became successful. Then other companies (Bosch specifically) tried to rip his tech off after they saw how effective it is, and he got to sue them and win. Also, their patents are about to or have already expired (https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sawstop_patents_really_about_to_expire/ https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sa...) Sounds like the 20 years gave him just enough time to: 1. Attempt to license the product and fail 2. Create a company 3. Market the company / product effectively 4. Exit ( https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-tooltechnic-systems/ https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-t... ) And now competition will begin to roll out their similar saws. I think 5 years would've been far too short for him. He would've been squashed. There would've been no motivation for companies to license his tech or buy out his company. They would've just waited 5 measly years and then stomped him. Now. If this was software, this whole thing would've played out in what? 5 years? 10 tops? So 20 years, to me, seems to be about right for some things. but absolutely TERRIBLE for others.
  - 3y ago

drschwabe 3y ago

Thanks for the links. How do you suggest startup entrepreneurs work around the broader moral dillemma here? On one had, we shouldn't feed the flames but on the other hand - we may need a foundation of patents for defensive measure or to reaslitically compete against the likes of IBM who have a gajillion patents. And I'm aware of at least one government grant programs that requires patents apart of their application process. From what I can asertain this is otherwise money on the table, after meeting that prerequsite. Are you suggesting we walk away from technology grants and just wing it with regards to what may happen when IBM legal team (or other patent troll) comes knocking ?

joemullin 3y ago
Can you point me to the government grant program that requires patents as part of the application process? That is potentially very concerning. I would be interested to learn more.
- drschwabe 3y ago
  It's a Canadian tech grant; non-dilluting - and they don't explicitly specify it is a requirement, but from the rep directly working for the program and anyone who I've talked to who has applied to the program your chances of getting the grant are basically zero if there is no IP. Coincidentally, they have another smaller grant you can apply for that goes direct to a service provider of your choice; and basically they suggest you use this first to pay for a law firm to get a patent started and then apply for the larger grant thereafter.
- varispeed 3y ago
  I've personally witnessed venture capital firms requiring patent filings as a prerequisite for funding. An acquaintance of mine once worked for a startup where the team was diverted from product development to ideation on patentable processes. The focus was less on innovation and more on creating a unique claim to secure funding, which I find misguided. The VC, instead of nurturing the inventive process, largely contributed to the crafting of a patent application. The objective was to design it in such a way that it was cryptic and as widely applicable as possible. Despite its questionable practices, the patent was approved, leading to the subsequent funding of the startup. However, the market didn't respond well to the idea, necessitating a pivot. Meanwhile, there were other companies independently pursuing similar ideas. They could have invested significant time and resources, unaware that they were infringing on an existing patent. It's a speculative guess, but I can't help but wonder if the VC fund is vigilantly searching for successful implementations of the patented idea, ready to initiate lawsuits for patent infringement. This illustrates the potential misuse of patents, which, rather than fostering innovation, sometimes stifle it.

varispeed 3y ago

Hardware patents are bad too. Even more bad are those that cover both hardware and simulation of hardware in software domain. For example, someone "invented" a circuit that lets you control an analogue filter parameters in a certain way. Then also was granted patent for a software that mimics behaviour of such circuit. As if someone found a loophole to patent mathematical formulas. Either people that grant patents are dumb or I don't know.

kmeisthax 3y ago
USPTO patent examiners are notoriously not granted enough time to review all submissions.

EGreg 3y ago

I am glad Hacker News is still against massively centralized things of SOME kind. I remember when the cypherpunks here were in favor of blockchain and crypto. The latest zeitgeist of being against decentralized stuff (witness the hate of plebbit) is leading the “hackers” here to learned helplessness and support online feudalism (big tech monopolies). And I was worried people started to embrace patents too. Y’all will love decentralization next summer again.

puvxiolo 3y ago

Now I am afraid of writing solutions to problems that are already solved for fun.