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This comes up at least once a month on HN. Drug and medical patents have at least some moral claim to virtue (don't come at me on that one). Whenever you see a

This comes up at least once a month on HN. Drug and medical patents have at least some moral claim to virtue (don't come at me on that one). Whenever you see an op-ed about how patents are so valuable, those are always the poster children. It's never software patents, because absolutely no one but lawyers thinks those are a good thing. But they're subject to the same laws as the "good" patents (whatever you think those are). So the solution is clear: Congress must legislate that software is not patentable subject matter. We can do this.

pclmulqdq 3y ago
I don't know any lawyers who think dumb software patents are good, including my own patent lawyers.
- AlbertCory 3y ago
  > dumb software patents their definition of "dumb" is probably quite different from yours (or most software engineers).
  - pclmulqdq 3y ago
    To clarify, I think both of us agree that things like weird data structures, compression/encryption algorithms, and a few other things that are actually non-obvious hard tech probably should be patentable (although it's usually a shitty business strategy to patent these things), but that most other software (including things like Amazon's one click ordering patent) shouldn't be. I will admit that I don't know where his moral line on this is exactly, and I know he is very happy to draft patents beyond it for strategic reasons. I think many smart patent lawyers are ultimately legal realists here - they have their own philosophical views, but their job involves working in the real system.
    - plank 3y ago
      >To clarify, … Not the parent, but: in that case you and I agree to disagree: any weird encryption algorithm is the usage of mathematics which should not be patentable in my opinion. The simplest solution in my mind is simply abolishing patents. Just as e.g. the COVID vaccines were developed using public funds, there is enough ‘protection’ in things like trade secrets (‘recipe of coca cola’) or copyright/-left (‘GPL’ or ‘iOS’) to keep us innovative enough.
      - pclmulqdq 3y ago
        I honestly don't think the patent office can draw the right line on what mathematical formulas are discovered vs invented, so that seems reasonable to me. I think you are looking at the abolition of patents from a very "software" perspective. Copyleft license terms have basically never been tested in court, and could just be unenforceable, but the tradition of software engineering seems to keep the peace there - GPL'ed and other open source hardware (which frequently has copyleft licensing) frequently gets ripped off without credit and nobody does anything about it. These would have bad facts in a court case, since the copyright doesn't cover the thing, just the schematics. Trade secrets also generally don't protect you when your product is easy to reverse-engineer and you have customers or competitors with a lot of money to do it. A drug is a prime example of this.
        AlbertCory 3y ago
        Step by step: first remove software from the domain of patent law. That IS a heavy lift, but abolishing all patents is an impossible one. Then the question of "OK, what IP protections should apply to software, if any?" can be addressed. I don't claim to have the answer all worked out
        pclmulqdq 3y ago
        That seems like a reasonable approach to me, and may come with a natural experiment built in. However, it's hard for me to suggest that an algorithm like PageRank, for example, is less inventive or risky to develop than a typical drug, which would suggest that some software ought to be available to patent.
    - freejazz 3y ago
      I love how software engineers think they have a clear understanding of what should or shouldn't be patentable, yet cannot come up with words to describe the delineation more accurately than "good" or "bad" or "weird", or other ways of just facially repeating patent requirements like "non-obviousness", yet don't seem to grasp this is the exact challenge that the law has to deal with with regards to patents. It's not an easy challenge. It turns out, it's actually incredibly hard to come up with a law that describes what should or shouldn't be patentable, with regards to anything that has yet to be invented.
      - AlbertCory 3y ago
        You seem to think that, having mastered what the law IS, you're also an authority on what it should be. Wrong. The people who live under the law are equally well qualified to judge that.
        freejazz 3y ago
        That's not what I think at all - I'm actually begging you to come up with a better delineation.. that's the challenge the law faces in regards to what it should be. We can't write a law that says "good patents are good, bad patents are bad" there needs to be a tangible, comprehensible delineation between good and bad patents that can be applied to things not yet invented... that's the challenge. I'm not sure how you came to your response at all, to be perfectly honest. I'm certainly not saying that lawyers are the only people who should be involved. I'm saying, if software engineers want to help... they need to actually help instead of just pretending like its trivial to delineate the good from the bad. It isn't. Really, the point I'm making is that, as experts in the field, if you cannot come up with a better delineation than simply stating "good" or "bad" - how is that you expect lawyers to do a better job? To further my point, that you responded the way you did is evidence that software engineers aren't actually engaging in the problem and are just sitting on the sidelines having tantrums because things aren't going the way they want.
        AlbertCory 3y ago
        OK, so do I understand you correctly that you'd like to write a law that separates the good patents from the bad ones? Tell us: is this a "good patent": https://en.wikipedia.org/wiki/Enfish,_LLC_v._Microsoft_Corp https://en.wikipedia.org/wiki/Enfish,_LLC_v._Microsoft_Corp. How about this? https://patents.google.com/patent/US7818399B1/en?oq=us7%2c818%2c399+ https://patents.google.com/patent/US7818399B1/en?oq=us7%2c81... Both of these are considered valid, post-Alice.
- shmerl 3y ago
  Dumb or not, no software patents are good, they shouldn't exist. Patent troll outfits are often run by lawyers, so they clearly see it as "good" for their protection racket. MPEG-LA for example.
  - AlbertCory 3y ago
    True, but he meant there are lawyers who'll cheerfully admit that a lot of patents are crap, but they'll defend plenty of other ones. I'm agreeing with you: Congress can end the legal hairsplitting, and just establish that software's not patentable.
ggm 3y ago
Before we stopped funding things properly, medical research was undertaken in publicly funded bodies. Thats where Insulin, and Penicillin emerged from. Prior to this of course drugs like sulpha and their precursors lay in the fully commercial dyestuff industry of "Mauve" fame (the Bayer-Hoechst thing) A shitload of science is done on the public purse. I don't want to objectify you, and you aren't wrong because stuff is now being done speculatively for profit day 1, but the "moral" aspect of this is really dubious to me: If we want to fund public health drug research, we can. And if we did, there would be no reason to vest patents over the discovery, we sunk the public purse into the drug design for public good outcomes. I back India every time on this: Fuck the patents, they just make the drugs.
- AlbertCory 3y ago
  > I don't want to objectify you What??? Read the post again: it was studiously neutral on the topic. I'm describing a political reality: software should be carved out of their space. They have a ton of clout in DC, and if you insist on killing drug patents, too, then nothing will ever be done. Guaranteed.
  - ggm 3y ago
    Yep. This is true. Until we get a good old fashioned FDR style socialist government back, its stupid to think about US centrally funded public works in any dimension. It was studiously neutral. But, the world is bigger than the USA and US patents leak into the world, which is a problem: other economies do it differently. Drug patents are bad. The pragmatic good in the short term is that they got us the covid vaccine, and will get us malaria, and better flu shots and probably personalised cancer treatments. All of that should be nationalised, and made available worldwide for public good. Fuck the shareholders. (not you. you're just calling it as you see it. I'll say it again: you aren't wrong) Software patents are both bad, and stupid.
    - robomartin 3y ago
      > Fuck the patents, they just make the drugs. > Drug patents are bad. The pragmatic good in the short term is that they got us the covid vaccine, and will get us malaria, and better flu shots and probably personalised cancer treatments. All of that should be nationalised, and made available worldwide for public good. > Fuck the shareholders. I wonder if you have any experience at all in a non-trivial business where heavy investment is a necessary precursor to getting something to market. For example, a hypothetical where you have to invest a million dollars cash and a year of work by a team of ten well-paid professionals (which is expensive) to get a product to market. I say this because anyone who has this experience would not say the things you are saying. Not because you altruistic sentiment is wrong. It isn't. At all. Your perspective is rooted in public good for the greatest number of people. Again, nothing wrong with that at all. The issue is one related to business reality. If the prevailing mode of operation is for society to just take what you develop through heavy investment of cash and time and give it to everyone, the problem quickly becomes evident: Nobody is going to take the risk or make the investment. "Fuck the patents, they just make the drugs" is a commendable position that can only be held by those who do not have to make the investment necessary to create and support those drugs or products. From that perspective, it is easy to steal anything. Yes, it is stealing when you take someone's work-product and do not compensate them at all. To use an imperfect example to illustrate the idea, it's like a situation where you spend five years saving money and slowly using it to build a house, only to have a bunch of people move-in and take it once built...and they don't pay you anything for it. In parts of the world this kind of thing actually happens, I know someone who had this problem in South America. It's fine to want better things for everyone. However, these ideas have to be rooted in reality. If everyone steals nobody is going to have any interest or motivation to take risks and build better things.

pclmulqdq 3y ago

I don't know any lawyers who think dumb software patents are good, including my own patent lawyers.

AlbertCory 3y ago
> dumb software patents their definition of "dumb" is probably quite different from yours (or most software engineers).
- pclmulqdq 3y ago
  To clarify, I think both of us agree that things like weird data structures, compression/encryption algorithms, and a few other things that are actually non-obvious hard tech probably should be patentable (although it's usually a shitty business strategy to patent these things), but that most other software (including things like Amazon's one click ordering patent) shouldn't be. I will admit that I don't know where his moral line on this is exactly, and I know he is very happy to draft patents beyond it for strategic reasons. I think many smart patent lawyers are ultimately legal realists here - they have their own philosophical views, but their job involves working in the real system.
  - plank 3y ago
    >To clarify, … Not the parent, but: in that case you and I agree to disagree: any weird encryption algorithm is the usage of mathematics which should not be patentable in my opinion. The simplest solution in my mind is simply abolishing patents. Just as e.g. the COVID vaccines were developed using public funds, there is enough ‘protection’ in things like trade secrets (‘recipe of coca cola’) or copyright/-left (‘GPL’ or ‘iOS’) to keep us innovative enough.
    - pclmulqdq 3y ago
      I honestly don't think the patent office can draw the right line on what mathematical formulas are discovered vs invented, so that seems reasonable to me. I think you are looking at the abolition of patents from a very "software" perspective. Copyleft license terms have basically never been tested in court, and could just be unenforceable, but the tradition of software engineering seems to keep the peace there - GPL'ed and other open source hardware (which frequently has copyleft licensing) frequently gets ripped off without credit and nobody does anything about it. These would have bad facts in a court case, since the copyright doesn't cover the thing, just the schematics. Trade secrets also generally don't protect you when your product is easy to reverse-engineer and you have customers or competitors with a lot of money to do it. A drug is a prime example of this.
      - AlbertCory 3y ago
        Step by step: first remove software from the domain of patent law. That IS a heavy lift, but abolishing all patents is an impossible one. Then the question of "OK, what IP protections should apply to software, if any?" can be addressed. I don't claim to have the answer all worked out
        pclmulqdq 3y ago
        That seems like a reasonable approach to me, and may come with a natural experiment built in. However, it's hard for me to suggest that an algorithm like PageRank, for example, is less inventive or risky to develop than a typical drug, which would suggest that some software ought to be available to patent.
  - freejazz 3y ago
    I love how software engineers think they have a clear understanding of what should or shouldn't be patentable, yet cannot come up with words to describe the delineation more accurately than "good" or "bad" or "weird", or other ways of just facially repeating patent requirements like "non-obviousness", yet don't seem to grasp this is the exact challenge that the law has to deal with with regards to patents. It's not an easy challenge. It turns out, it's actually incredibly hard to come up with a law that describes what should or shouldn't be patentable, with regards to anything that has yet to be invented.
    - AlbertCory 3y ago
      You seem to think that, having mastered what the law IS, you're also an authority on what it should be. Wrong. The people who live under the law are equally well qualified to judge that.
      - freejazz 3y ago
        That's not what I think at all - I'm actually begging you to come up with a better delineation.. that's the challenge the law faces in regards to what it should be. We can't write a law that says "good patents are good, bad patents are bad" there needs to be a tangible, comprehensible delineation between good and bad patents that can be applied to things not yet invented... that's the challenge. I'm not sure how you came to your response at all, to be perfectly honest. I'm certainly not saying that lawyers are the only people who should be involved. I'm saying, if software engineers want to help... they need to actually help instead of just pretending like its trivial to delineate the good from the bad. It isn't. Really, the point I'm making is that, as experts in the field, if you cannot come up with a better delineation than simply stating "good" or "bad" - how is that you expect lawyers to do a better job? To further my point, that you responded the way you did is evidence that software engineers aren't actually engaging in the problem and are just sitting on the sidelines having tantrums because things aren't going the way they want.
        AlbertCory 3y ago
        OK, so do I understand you correctly that you'd like to write a law that separates the good patents from the bad ones? Tell us: is this a "good patent": https://en.wikipedia.org/wiki/Enfish,_LLC_v._Microsoft_Corp https://en.wikipedia.org/wiki/Enfish,_LLC_v._Microsoft_Corp. How about this? https://patents.google.com/patent/US7818399B1/en?oq=us7%2c818%2c399+ https://patents.google.com/patent/US7818399B1/en?oq=us7%2c81... Both of these are considered valid, post-Alice.
shmerl 3y ago
Dumb or not, no software patents are good, they shouldn't exist. Patent troll outfits are often run by lawyers, so they clearly see it as "good" for their protection racket. MPEG-LA for example.
- AlbertCory 3y ago
  True, but he meant there are lawyers who'll cheerfully admit that a lot of patents are crap, but they'll defend plenty of other ones. I'm agreeing with you: Congress can end the legal hairsplitting, and just establish that software's not patentable.

ggm 3y ago

Before we stopped funding things properly, medical research was undertaken in publicly funded bodies. Thats where Insulin, and Penicillin emerged from. Prior to this of course drugs like sulpha and their precursors lay in the fully commercial dyestuff industry of "Mauve" fame (the Bayer-Hoechst thing) A shitload of science is done on the public purse. I don't want to objectify you, and you aren't wrong because stuff is now being done speculatively for profit day 1, but the "moral" aspect of this is really dubious to me: If we want to fund public health drug research, we can. And if we did, there would be no reason to vest patents over the discovery, we sunk the public purse into the drug design for public good outcomes. I back India every time on this: Fuck the patents, they just make the drugs.

AlbertCory 3y ago
> I don't want to objectify you What??? Read the post again: it was studiously neutral on the topic. I'm describing a political reality: software should be carved out of their space. They have a ton of clout in DC, and if you insist on killing drug patents, too, then nothing will ever be done. Guaranteed.
- ggm 3y ago
  Yep. This is true. Until we get a good old fashioned FDR style socialist government back, its stupid to think about US centrally funded public works in any dimension. It was studiously neutral. But, the world is bigger than the USA and US patents leak into the world, which is a problem: other economies do it differently. Drug patents are bad. The pragmatic good in the short term is that they got us the covid vaccine, and will get us malaria, and better flu shots and probably personalised cancer treatments. All of that should be nationalised, and made available worldwide for public good. Fuck the shareholders. (not you. you're just calling it as you see it. I'll say it again: you aren't wrong) Software patents are both bad, and stupid.
  - robomartin 3y ago
    > Fuck the patents, they just make the drugs. > Drug patents are bad. The pragmatic good in the short term is that they got us the covid vaccine, and will get us malaria, and better flu shots and probably personalised cancer treatments. All of that should be nationalised, and made available worldwide for public good. > Fuck the shareholders. I wonder if you have any experience at all in a non-trivial business where heavy investment is a necessary precursor to getting something to market. For example, a hypothetical where you have to invest a million dollars cash and a year of work by a team of ten well-paid professionals (which is expensive) to get a product to market. I say this because anyone who has this experience would not say the things you are saying. Not because you altruistic sentiment is wrong. It isn't. At all. Your perspective is rooted in public good for the greatest number of people. Again, nothing wrong with that at all. The issue is one related to business reality. If the prevailing mode of operation is for society to just take what you develop through heavy investment of cash and time and give it to everyone, the problem quickly becomes evident: Nobody is going to take the risk or make the investment. "Fuck the patents, they just make the drugs" is a commendable position that can only be held by those who do not have to make the investment necessary to create and support those drugs or products. From that perspective, it is easy to steal anything. Yes, it is stealing when you take someone's work-product and do not compensate them at all. To use an imperfect example to illustrate the idea, it's like a situation where you spend five years saving money and slowly using it to build a house, only to have a bunch of people move-in and take it once built...and they don't pay you anything for it. In parts of the world this kind of thing actually happens, I know someone who had this problem in South America. It's fine to want better things for everyone. However, these ideas have to be rooted in reality. If everyone steals nobody is going to have any interest or motivation to take risks and build better things.