10 ms·

EFF taking on software patent reform

157 points by bits 14y ago

padobson 14y ago
If we're going to be moderate about this, the source code should need to be public and open sourced after the term of the patent expires.
- JackC 14y ago
  I think that's probably covered by this: "Patent applicants should be required to provide an example of running software code for each claim in the patent and tell the Patent Office which claims are covered by which lines of that code." The reference implementation in the patent itself would almost certainly be public domain once the patent expired.
PeterisP 14y ago
Wrong. EFF, this is not what we the members are asking - software patents should be abolished, not changed to "acceptable" terms. It's just a boil-the-frog strategy. There are no conditions that would make software patents a good thing ethically and economically.
- wissler 14y ago
  Indeed. I was about to go contribute, but then I saw that it's a total concession in principle. I don't want haggling over how much when a robber robs me at gunpoint, I want the robber to be stopped. I don't want a concession to the principle that robbing is legitimate.
iwwr 14y ago
EFF's position is too moderate. 5 year monopoly on software ideas? If not even the EFF is willing to take an unequivocal stance against software patents, the trolls and the system will keep their legitimacy. We should not be afraid to take (seemingly) radical positions. Fear of offending the status quo is what keeps it in place. Not too long ago the idea of patenting a theorem or a gene was dubious; the moderates may only slow the tide, not push it back.
- JumpCrisscross 14y ago
  We don't have unequivocal evidence that the status quo is wrong. It is prudent to take small steps and study the effects carefully after each one. Startups are rewarded for being bold. Countries can't take 80/20 decisions on faith.
  - loup-vaillant 14y ago
    Whatever the direction the evidence points to, it's likely massive. The real problem is to sort it out. In this respect, I very much like EFF's proposition to conduct a study about the effects of software patents on the economy. (Personally, I'd do that for the other patents for copyright as well, as well, but narrowing the field has its benefits.) While the EFF is prudent, I expect a proper study to yield much bolder results, with the evidence to back them up.
- chj 14y ago
  I believe EFF tries to avoid fight back from Big Corps. However, you're absolutely right. Software patents are absurd and should be abolished once and for all.
- adventureful 14y ago
  Extreme positions can typically only be accomplished in dire times. Outside of an extremely dire scenario, what you'll accomplish by taking the abolish software patents position, is nothing. If you want to make progress, the EFF is taking the right tact. If you want to be idealistic (and that's fine I'll emphasize), then stick to your guns and you'll see zero progress, but your ideals will still be intact.
  - loup-vaillant 14y ago
    > then stick to your guns and you'll see zero progress, but your ideals will still be intact. That would require some self deception. Those who have an ideal, and know at the same time that sticking to their guns wouldn't work, shouldn't stick to their guns. Unless of course they only want to signal an ideal, which I concede is easier than actually trying achieve it.
dfc 14y ago
Recently someone posted a link to change.org petitioning the EFF to take a tougher stand on patents: Petition the EFF to Oppose Software Patents -- http://news.ycombinator.com/item?id=4134873 http://news.ycombinator.com/item?id=4134873
elisee 14y ago
"If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees." By offering to reduce the time to five years, they are implicitly supporting the idea of using and defending the patent for those five years. You might legitimately think there's infringement and then the court might find otherwise. Calling anyone who goes to court with a patent a troll seems unnecessary in that case. "Infringers should avoid liability if they independently arrive at the patented invention." You don't pay damages, and then what happens? Do you still have to get a license or can you keep going because you invented it on your own? Also: how do you prove you independently arrived at the patented invention? Who's burden is it to prove / disprove it?
agravier 14y ago
I say, at that point, let the FSF "reform" software patents.
sneak 14y ago
It is already against the rules to patent an algorithm, as they are considered mathematics and thus unpatentable. The reform we need is just better application of the existing patent rules.
- SkyMarshal 14y ago
  Anyone know the legal distinction between an algorithm, which is not patentable, and a business method/process, which apparently is? I wonder if a viable legal strategy could be to have the definition of the former extended to the latter in some way.
rubberband 14y ago
This seems like a good first step. I never understood why people think we should try and abolish software patents. We can't. Period. There's too much money in them. We can attempt to reform or reshape them so they are less destructive, but crying for total abolition seems to be akin to attempting to abolish the IRS. It might make sense in a perfect world, but it will never, ever happen.
- slowpoke 14y ago
  >There's too much money in them. This is not an argument. I'm pretty sure there was a lot of money in the slave markets as well. Didn't stop the US from abolishing it, though.
nroach 14y ago
Number 4 is a tragically bad idea: "Infringers should avoid liability if they independently arrive at the patented invention." I love the EFF (and donate) but as a litigator it appears entirely unworkable. The root problem is that this proposal commingles the standards for copyright and patents. In copyright law, independent creation means there was no copying, and thus no infringement. Patents (sw or otherwise) are entirely different and exist for different purposes. Patents protect early work done by inventors from poaching by later (or larger) entrants. The inherent tradeoff is that the inventor must disclose to the world how his invention works in exchange for receiving a limited time period of market exclusivity. (EFF #1 is spot-on that the current time period is too long for software). However, the EFF is saying "If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it." If all inventors required was copy protection, they could rely on existing copyright law. Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles. Done right, a patent system should protect small inventors whose creation is groundbreaking in their industry, but that could be easily reverse-engineered or duplicated by the big players based simply on recreating the inventor's product without literal copying. TiVo vs. cable DVRs is a good example.
- bjornsing 14y ago
  I agree wholeheartedly. Slightly off topic, but there is a general modification of IPR law that I've never seen discussed but that I think could affect some very interesting change: simply require that licenses are available to all on reasonable and equal terms. For every registered patent or copyright there would also be a license template, ready to fill in, with payment details, preferably machine readable... You could apply that principle to copyright as well as patent rights. The consequence for copyright would be e.g. that large record labels would be forced to license their music to all online services, or not at all. If the government enforces a "monopoly" then why not also enforce an even playing field?
- snewman 14y ago
  Yes #4 could be problematic if not implemented carefully, but it is addressing a real problem. Parallel evolution is commonplace in the tech industry. In the current system, if two (or three, or twenty) companies legitimately and independently happen onto the same idea, whoever gets the patent can blindside the others. Often after the other inventors have made large investments in developing and fleshing out the idea, possibly to a much greater extent than the patent holder. This makes no sense, whether you're interested in promoting innovation, or simple justice and fairness.
law 14y ago
I appreciate their efforts, but I disagree with a couple of their points. First, their use of the term 'troll' automatically imbues the reader with a sense of the type of person from whom this effort attempts to protect innovators: people whose single business purpose is the collection and enforcement of patents. That's simply a small, yet quite vocal, subset of the majority of people who benefit from patent law, and who should be entitled to protect their inventions. With that in mind, I completely agree with limiting the term of software patents. In fact, I agree with limiting the terms of patents, generally; not inventions are the same, and technological innovation across various sectors does not progress at the same rate. Pharmaceutical patents, for example, typically aren't enforced until FDA approval occurs (which is sometimes up to 15 years later, giving them only 5 years to recoup the often immense investment in the research leading to the drug!). The second point is awful: why should someone with a bona fide claim in patent infringement have to pay when the court rules against their favor in something that's an arguable question of law? Claim construction is done by the court; that is, the judge is the one who decides what claims in a patent mean. If the judge's decision goes against what you reasonably believed to be a correct construction of the claims and the defendant then prevails on a motion to dismiss, but you appeal, and the Court of Appeals for the Federal Circuit reverses, but then the defendant appeals and it goes to the Supreme Court, which agrees with the original judge and by dint of their judgment creates new law? Shouldn't both parties have to pay their respective attorneys' fees here? Of course. Oh, you mean cases of vexatious or malicious litigation, which are effectively extortion? Call the bar association of the lawyers involved, and file an ethics complaint. Patent trolls can be kept in line with ethics complaints. I disagree with 3, because it violates due process unless there are significant changes to the Patent Act. Keep in mind: there's a major difference between sufficiency of disclosure and actually practicing an invention. Patent law has never required an inventor to actually produce or manufacture their invention, because it understands that sometimes, this is impossible. In software cases, what happens if you've imagined a beautifully complex system that's novel and non-obvious, but the software, skills, time, etc. required to bring it to fruition preclude you from doing so for whatever reason? What if you instead wish to license the invention to someone who can produce or manufacture the software? This provision would perpetuate corporate oligopolies by entitling those with the resources to reap the benefits of patent protection. We cannot allow this to happen. That brings me to independent inventions: I'm on the fence about this. Copyright law has something similar to this, but patent law doesn't, and I'm not really sure why. My only idea is that during the inventive process, you will always be looking to prior art, and a reasonably prudent person would likely discover the patented subject matter during this process. Of course, this doesn't address the concern with an 'ignorant inventor' independently inventing something patented. Here's the issue: issued patents are published, and the public is 'on notice' that this invention is no longer in the public domain. Of course, there are more than 7 million patents, of which maybe 2 million or so are active. While possible, it's just not the best use of someone's time to ensure that they're not infringing on someone else's invention. But it's also unfair to the inventor who took the steps to patent their invention if this 'independent inventor' is allowed to reap the benefits of something taken out of the public domain with notice given. I guess the problem we have is that notice isn't 'effective', and that falls onto the patent office: they need a better categorization system. This is a problem with the executive branch, rather than the legislative or judicial. Finally, I just want to talk about the sixth point, that someone shouldn't be allowed to collect 'millions' for a 'tiny infringement.' To me, this discredited the entire post, because it unnecessarily muddies the water with regard to liability. Patent infringement does not lead to treble damages (which I guess they fear), but willful patent infringement does. When an inventor sends you a cease and desist letter and you continue to practice the invention knowing that you're infringing, then you're liable for enhanced damages. But, you have to continue practicing the invention in willful disregard to the patent--it's a jury question. In short, the patent system IS in need of reform to take into account the mutability of technological advancement. However, let's not jump to conclusions and pollute the Patent Act with exceptions to a technology that appears on its face to be an exception; we need to find and eradicate the root cause of the perceived injustices.
rayiner 14y ago
A lot of people think we should get rid of software patents entirely. I'm curious to get peoples' feedback on this: I spent years working for a wireless startup. Our innovation was in the domain of software, but our product was not software--software just drove the product (military radios). The algorithms took years and millions of dollars of research to derive, and we patented them. I think that business model is valuable, and it's extremely common. The companies that manufacture radios, telephones, networking equipment, etc, don't necessarily have the agility to come up with innovative software, and the small firms that can come up with innovative software don't have the manufacturing capability to go into the end-user product market. Software patents allow them to focus on their core competencies, then engage in mutually beneficial transactions with the assurance that the legal system will keep them from getting ripped off. So my question is: how would businesses like the above work without software patents?
- felipeko 14y ago
  Doesn't copyright law already cover this?
  - rayiner 14y ago
    Copyright protects software, patents protect designs. For some types of software, say operating systems, the hard work is writing all the lines of code. No device driver is ground breaking, but all those devices have to have device drivers and someone has to write them. The product you end up selling is those lines of code. Copyright protects those specific lines of code you wrote. For other types of software, the hard part is figuring out how the software should work. That's where all the research dollars and engineer time gets spent. The actual lines of code are often an afterthought. If someone saw the code, they could easily figure out how it works and write an independent implementation. They can do that because writing the lines of code is the easy part. Copyright only protects the lines of code, so it can't help here. That's where patents come in. In both cases, the law facilitates a division of labor. Copyright lets one company write an operating system, and sell it to others. Copyright creates and protects the subject matter of that transaction. Patents let one company design an algorithm, and sell it to others. Patent law creates and protects the subject matter of that transaction. Now, I don't think the law should be concerned with protecting particular business models. However, it should be concerned with facilitating the division of labor. Indeed, that's one of the key purposes of property law. And that's why I think software patents have to exist in some form. Because I think it's good to be able to separate the process of design from the process of implementation, and without being able to protect design you can't do that. I should point out that ARM is a very good example of this design/implementation separation. What do you think ARM uses to protect its designs?
reader5000 14y ago
I think this is a good set of reforms to investigate, but I think a real problem is simply the PTO issuing bad patents, a large percentage in the realm of software, for the past decade or so. By "bad" I mean failing a basic novelty/obviousness analysis. I think it's more of an issue in software because software developers are essentially producing tens of "inventions" a day, every day, any of which are potentially infringing due to poor PTO operation. Whereas in something like chemical engineering a patent might affect maybe a few hundred other well-capitalized firms at a single point in their process, in software for any given app/developer potentially multiple patents are implicated in the course of a normal day's work. A lot of patent trolls seem to be exploiting "we got here first nya nya" patents. That is, they patent solutions to problems that the market has not deemed significant enough to solve yet (like in app purchasing, before the iphone). When the market does move and encounters these problems, the straightforward solution(s) are developed, and then in swoops the patent troll. The PTO just needs to become more sensitive to the unique industry that is software development: the high natural rate of invention, the high likelihood for multiple independent similar solutions to problems, the fact that a problem hasn't been solved yet doesnt mean the first submitted solution should nor can be patented, etc. I think if a patent holder can show "but for my solution, you never would have solved this problem in a reasonably efficient manner" then sure, let's protect his IP. Determining when that condition is true is obviously difficult, but the current PTO strategy of giving the benefit of the doubt to the patent applicant has proven a bad bet.
seats 14y ago
Tangential, but was just thinking about this today. Last week I visited the white house as a part of this program -> http://www.businessfwd.org/ http://www.businessfwd.org/ The two topics I brought up with the administration were patent reform and immigration reform. Brought up all the obvious issues that play on HN frequently. Today I got a follow up email intro to someone at the USPTO and here's a copy of my reply to that person. I also pointed him to the defendinnovation.org. Text of my message to USPTO---- The main concern I brought up during the white house visit was around software related patents and frivolous lawsuits by trolls. I'm sure you get this question often from technology and startup folks, but in my opinion it's pretty clear that the USPTO is effectively levying a giant tax on output of my industry due to issuance and complicit enforcement of patents around elementary concepts. To me the biggest costs to our economy come in the form of - - fear of patent conflicts prevent new companies from doing truly novel things that would generate jobs and innovation - costs of licensing patents from trolls or patent groups impede growth of companies at the most delicate nascent stage (e.g. MPEG-LA or Intellectual Ventures) - settlements out of court with trolls and/or direct costs of litigation to defend (for the bravest large companies who want to take a stand, e.g. google) - giant piles of money burned litigating frivolous patent disputes between large companies as a proxy for competing directly in the market (oracle vs google) In general software patents attract the worst elements of the free market. People and companies that take advantage of the system, who extort, abuse and profit from the structural deficiencies of the USPTO. A typical patent troll group will acquire a set of frivolous software patents covering concepts in use in literally any major piece of software so that technically every large company is an infringer. They will then approach a set of large or medium companies with a veiled threat and offer to sell a share of the patent troll entity. They give a choice to their target to get on board or take an ethical stand and if the victim chooses the later, they'll get sued for infringing and likely be forced to settle because truly there is infringement according to the drafting of the patent that was granted. It's the modern mafia. The root cause of all of these problems are two fold 1 - granting of patents for non-novel and trivial software and concepts 2 - inability to efficiently litigate and have a patent invalidated by demonstrating that it is truly trivial Google is a major force of good in this fight and the Oracle litigation has shown my industry a great deal of hope on this front. In particular Judge Alsup on that case showed a very keen understanding of the technology in question and how ridiculous the patent was that Oracle litigated with. That story had a happy ending, but honestly in large part because of that one judge. If this were a different court there could have been a vastly different outcome. http://news.cnet.com/8301-1035_3-57445082-94/judge-william-alsup-master-of-the-court-and-java/ http://news.cnet.com/8301-1035_3-57445082-94/judge-william-a... My question to you is simple - How can we address these root causes? The current patent system and review system was not designed for software and is clearly failing to adapt to the current environment and pace. USPTO is granting patents at an ever increasing rate. We quite literally are in such a broken state that I would wager that every piece of software being sold today is infringing on some patent. How long until that structure completely halts the development of any innovation at all? Too big of an issue to ignore. Thanks for listening.
forgottenpaswrd 14y ago
Most important of all, if you want a patent, provide working code.

157 points by bits 14y ago

If we're going to be moderate about this, the source code should need to be public and open sourced after the term of the patent expires.

JackC 14y ago
I think that's probably covered by this: "Patent applicants should be required to provide an example of running software code for each claim in the patent and tell the Patent Office which claims are covered by which lines of that code." The reference implementation in the patent itself would almost certainly be public domain once the patent expired.

PeterisP 14y ago

Wrong. EFF, this is not what we the members are asking - software patents should be abolished, not changed to "acceptable" terms. It's just a boil-the-frog strategy. There are no conditions that would make software patents a good thing ethically and economically.

wissler 14y ago
Indeed. I was about to go contribute, but then I saw that it's a total concession in principle. I don't want haggling over how much when a robber robs me at gunpoint, I want the robber to be stopped. I don't want a concession to the principle that robbing is legitimate.

iwwr 14y ago

EFF's position is too moderate. 5 year monopoly on software ideas? If not even the EFF is willing to take an unequivocal stance against software patents, the trolls and the system will keep their legitimacy. We should not be afraid to take (seemingly) radical positions. Fear of offending the status quo is what keeps it in place. Not too long ago the idea of patenting a theorem or a gene was dubious; the moderates may only slow the tide, not push it back.

JumpCrisscross 14y ago
We don't have unequivocal evidence that the status quo is wrong. It is prudent to take small steps and study the effects carefully after each one. Startups are rewarded for being bold. Countries can't take 80/20 decisions on faith.
- loup-vaillant 14y ago
  Whatever the direction the evidence points to, it's likely massive. The real problem is to sort it out. In this respect, I very much like EFF's proposition to conduct a study about the effects of software patents on the economy. (Personally, I'd do that for the other patents for copyright as well, as well, but narrowing the field has its benefits.) While the EFF is prudent, I expect a proper study to yield much bolder results, with the evidence to back them up.
chj 14y ago
I believe EFF tries to avoid fight back from Big Corps. However, you're absolutely right. Software patents are absurd and should be abolished once and for all.
adventureful 14y ago
Extreme positions can typically only be accomplished in dire times. Outside of an extremely dire scenario, what you'll accomplish by taking the abolish software patents position, is nothing. If you want to make progress, the EFF is taking the right tact. If you want to be idealistic (and that's fine I'll emphasize), then stick to your guns and you'll see zero progress, but your ideals will still be intact.
- loup-vaillant 14y ago
  > then stick to your guns and you'll see zero progress, but your ideals will still be intact. That would require some self deception. Those who have an ideal, and know at the same time that sticking to their guns wouldn't work, shouldn't stick to their guns. Unless of course they only want to signal an ideal, which I concede is easier than actually trying achieve it.

dfc 14y ago

Recently someone posted a link to change.org petitioning the EFF to take a tougher stand on patents: Petition the EFF to Oppose Software Patents -- http://news.ycombinator.com/item?id=4134873 http://news.ycombinator.com/item?id=4134873

elisee 14y ago

"If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees." By offering to reduce the time to five years, they are implicitly supporting the idea of using and defending the patent for those five years. You might legitimately think there's infringement and then the court might find otherwise. Calling anyone who goes to court with a patent a troll seems unnecessary in that case. "Infringers should avoid liability if they independently arrive at the patented invention." You don't pay damages, and then what happens? Do you still have to get a license or can you keep going because you invented it on your own? Also: how do you prove you independently arrived at the patented invention? Who's burden is it to prove / disprove it?

agravier 14y ago

I say, at that point, let the FSF "reform" software patents.

sneak 14y ago

It is already against the rules to patent an algorithm, as they are considered mathematics and thus unpatentable. The reform we need is just better application of the existing patent rules.

SkyMarshal 14y ago
Anyone know the legal distinction between an algorithm, which is not patentable, and a business method/process, which apparently is? I wonder if a viable legal strategy could be to have the definition of the former extended to the latter in some way.

rubberband 14y ago

This seems like a good first step. I never understood why people think we should try and abolish software patents. We can't. Period. There's too much money in them. We can attempt to reform or reshape them so they are less destructive, but crying for total abolition seems to be akin to attempting to abolish the IRS. It might make sense in a perfect world, but it will never, ever happen.

slowpoke 14y ago
>There's too much money in them. This is not an argument. I'm pretty sure there was a lot of money in the slave markets as well. Didn't stop the US from abolishing it, though.

nroach 14y ago

Number 4 is a tragically bad idea: "Infringers should avoid liability if they independently arrive at the patented invention." I love the EFF (and donate) but as a litigator it appears entirely unworkable. The root problem is that this proposal commingles the standards for copyright and patents. In copyright law, independent creation means there was no copying, and thus no infringement. Patents (sw or otherwise) are entirely different and exist for different purposes. Patents protect early work done by inventors from poaching by later (or larger) entrants. The inherent tradeoff is that the inventor must disclose to the world how his invention works in exchange for receiving a limited time period of market exclusivity. (EFF #1 is spot-on that the current time period is too long for software). However, the EFF is saying "If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it." If all inventors required was copy protection, they could rely on existing copyright law. Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles. Done right, a patent system should protect small inventors whose creation is groundbreaking in their industry, but that could be easily reverse-engineered or duplicated by the big players based simply on recreating the inventor's product without literal copying. TiVo vs. cable DVRs is a good example.

bjornsing 14y ago
I agree wholeheartedly. Slightly off topic, but there is a general modification of IPR law that I've never seen discussed but that I think could affect some very interesting change: simply require that licenses are available to all on reasonable and equal terms. For every registered patent or copyright there would also be a license template, ready to fill in, with payment details, preferably machine readable... You could apply that principle to copyright as well as patent rights. The consequence for copyright would be e.g. that large record labels would be forced to license their music to all online services, or not at all. If the government enforces a "monopoly" then why not also enforce an even playing field?
snewman 14y ago
Yes #4 could be problematic if not implemented carefully, but it is addressing a real problem. Parallel evolution is commonplace in the tech industry. In the current system, if two (or three, or twenty) companies legitimately and independently happen onto the same idea, whoever gets the patent can blindside the others. Often after the other inventors have made large investments in developing and fleshing out the idea, possibly to a much greater extent than the patent holder. This makes no sense, whether you're interested in promoting innovation, or simple justice and fairness.

law 14y ago

I appreciate their efforts, but I disagree with a couple of their points. First, their use of the term 'troll' automatically imbues the reader with a sense of the type of person from whom this effort attempts to protect innovators: people whose single business purpose is the collection and enforcement of patents. That's simply a small, yet quite vocal, subset of the majority of people who benefit from patent law, and who should be entitled to protect their inventions. With that in mind, I completely agree with limiting the term of software patents. In fact, I agree with limiting the terms of patents, generally; not inventions are the same, and technological innovation across various sectors does not progress at the same rate. Pharmaceutical patents, for example, typically aren't enforced until FDA approval occurs (which is sometimes up to 15 years later, giving them only 5 years to recoup the often immense investment in the research leading to the drug!). The second point is awful: why should someone with a bona fide claim in patent infringement have to pay when the court rules against their favor in something that's an arguable question of law? Claim construction is done by the court; that is, the judge is the one who decides what claims in a patent mean. If the judge's decision goes against what you reasonably believed to be a correct construction of the claims and the defendant then prevails on a motion to dismiss, but you appeal, and the Court of Appeals for the Federal Circuit reverses, but then the defendant appeals and it goes to the Supreme Court, which agrees with the original judge and by dint of their judgment creates new law? Shouldn't both parties have to pay their respective attorneys' fees here? Of course. Oh, you mean cases of vexatious or malicious litigation, which are effectively extortion? Call the bar association of the lawyers involved, and file an ethics complaint. Patent trolls can be kept in line with ethics complaints. I disagree with 3, because it violates due process unless there are significant changes to the Patent Act. Keep in mind: there's a major difference between sufficiency of disclosure and actually practicing an invention. Patent law has never required an inventor to actually produce or manufacture their invention, because it understands that sometimes, this is impossible. In software cases, what happens if you've imagined a beautifully complex system that's novel and non-obvious, but the software, skills, time, etc. required to bring it to fruition preclude you from doing so for whatever reason? What if you instead wish to license the invention to someone who can produce or manufacture the software? This provision would perpetuate corporate oligopolies by entitling those with the resources to reap the benefits of patent protection. We cannot allow this to happen. That brings me to independent inventions: I'm on the fence about this. Copyright law has something similar to this, but patent law doesn't, and I'm not really sure why. My only idea is that during the inventive process, you will always be looking to prior art, and a reasonably prudent person would likely discover the patented subject matter during this process. Of course, this doesn't address the concern with an 'ignorant inventor' independently inventing something patented. Here's the issue: issued patents are published, and the public is 'on notice' that this invention is no longer in the public domain. Of course, there are more than 7 million patents, of which maybe 2 million or so are active. While possible, it's just not the best use of someone's time to ensure that they're not infringing on someone else's invention. But it's also unfair to the inventor who took the steps to patent their invention if this 'independent inventor' is allowed to reap the benefits of something taken out of the public domain with notice given. I guess the problem we have is that notice isn't 'effective', and that falls onto the patent office: they need a better categorization system. This is a problem with the executive branch, rather than the legislative or judicial. Finally, I just want to talk about the sixth point, that someone shouldn't be allowed to collect 'millions' for a 'tiny infringement.' To me, this discredited the entire post, because it unnecessarily muddies the water with regard to liability. Patent infringement does not lead to treble damages (which I guess they fear), but willful patent infringement does. When an inventor sends you a cease and desist letter and you continue to practice the invention knowing that you're infringing, then you're liable for enhanced damages. But, you have to continue practicing the invention in willful disregard to the patent--it's a jury question. In short, the patent system IS in need of reform to take into account the mutability of technological advancement. However, let's not jump to conclusions and pollute the Patent Act with exceptions to a technology that appears on its face to be an exception; we need to find and eradicate the root cause of the perceived injustices.

rayiner 14y ago

A lot of people think we should get rid of software patents entirely. I'm curious to get peoples' feedback on this: I spent years working for a wireless startup. Our innovation was in the domain of software, but our product was not software--software just drove the product (military radios). The algorithms took years and millions of dollars of research to derive, and we patented them. I think that business model is valuable, and it's extremely common. The companies that manufacture radios, telephones, networking equipment, etc, don't necessarily have the agility to come up with innovative software, and the small firms that can come up with innovative software don't have the manufacturing capability to go into the end-user product market. Software patents allow them to focus on their core competencies, then engage in mutually beneficial transactions with the assurance that the legal system will keep them from getting ripped off. So my question is: how would businesses like the above work without software patents?

felipeko 14y ago
Doesn't copyright law already cover this?
- rayiner 14y ago
  Copyright protects software, patents protect designs. For some types of software, say operating systems, the hard work is writing all the lines of code. No device driver is ground breaking, but all those devices have to have device drivers and someone has to write them. The product you end up selling is those lines of code. Copyright protects those specific lines of code you wrote. For other types of software, the hard part is figuring out how the software should work. That's where all the research dollars and engineer time gets spent. The actual lines of code are often an afterthought. If someone saw the code, they could easily figure out how it works and write an independent implementation. They can do that because writing the lines of code is the easy part. Copyright only protects the lines of code, so it can't help here. That's where patents come in. In both cases, the law facilitates a division of labor. Copyright lets one company write an operating system, and sell it to others. Copyright creates and protects the subject matter of that transaction. Patents let one company design an algorithm, and sell it to others. Patent law creates and protects the subject matter of that transaction. Now, I don't think the law should be concerned with protecting particular business models. However, it should be concerned with facilitating the division of labor. Indeed, that's one of the key purposes of property law. And that's why I think software patents have to exist in some form. Because I think it's good to be able to separate the process of design from the process of implementation, and without being able to protect design you can't do that. I should point out that ARM is a very good example of this design/implementation separation. What do you think ARM uses to protect its designs?

reader5000 14y ago

I think this is a good set of reforms to investigate, but I think a real problem is simply the PTO issuing bad patents, a large percentage in the realm of software, for the past decade or so. By "bad" I mean failing a basic novelty/obviousness analysis. I think it's more of an issue in software because software developers are essentially producing tens of "inventions" a day, every day, any of which are potentially infringing due to poor PTO operation. Whereas in something like chemical engineering a patent might affect maybe a few hundred other well-capitalized firms at a single point in their process, in software for any given app/developer potentially multiple patents are implicated in the course of a normal day's work. A lot of patent trolls seem to be exploiting "we got here first nya nya" patents. That is, they patent solutions to problems that the market has not deemed significant enough to solve yet (like in app purchasing, before the iphone). When the market does move and encounters these problems, the straightforward solution(s) are developed, and then in swoops the patent troll. The PTO just needs to become more sensitive to the unique industry that is software development: the high natural rate of invention, the high likelihood for multiple independent similar solutions to problems, the fact that a problem hasn't been solved yet doesnt mean the first submitted solution should nor can be patented, etc. I think if a patent holder can show "but for my solution, you never would have solved this problem in a reasonably efficient manner" then sure, let's protect his IP. Determining when that condition is true is obviously difficult, but the current PTO strategy of giving the benefit of the doubt to the patent applicant has proven a bad bet.

seats 14y ago

Tangential, but was just thinking about this today. Last week I visited the white house as a part of this program -> http://www.businessfwd.org/ http://www.businessfwd.org/ The two topics I brought up with the administration were patent reform and immigration reform. Brought up all the obvious issues that play on HN frequently. Today I got a follow up email intro to someone at the USPTO and here's a copy of my reply to that person. I also pointed him to the defendinnovation.org. Text of my message to USPTO---- The main concern I brought up during the white house visit was around software related patents and frivolous lawsuits by trolls. I'm sure you get this question often from technology and startup folks, but in my opinion it's pretty clear that the USPTO is effectively levying a giant tax on output of my industry due to issuance and complicit enforcement of patents around elementary concepts. To me the biggest costs to our economy come in the form of - - fear of patent conflicts prevent new companies from doing truly novel things that would generate jobs and innovation - costs of licensing patents from trolls or patent groups impede growth of companies at the most delicate nascent stage (e.g. MPEG-LA or Intellectual Ventures) - settlements out of court with trolls and/or direct costs of litigation to defend (for the bravest large companies who want to take a stand, e.g. google) - giant piles of money burned litigating frivolous patent disputes between large companies as a proxy for competing directly in the market (oracle vs google) In general software patents attract the worst elements of the free market. People and companies that take advantage of the system, who extort, abuse and profit from the structural deficiencies of the USPTO. A typical patent troll group will acquire a set of frivolous software patents covering concepts in use in literally any major piece of software so that technically every large company is an infringer. They will then approach a set of large or medium companies with a veiled threat and offer to sell a share of the patent troll entity. They give a choice to their target to get on board or take an ethical stand and if the victim chooses the later, they'll get sued for infringing and likely be forced to settle because truly there is infringement according to the drafting of the patent that was granted. It's the modern mafia. The root cause of all of these problems are two fold 1 - granting of patents for non-novel and trivial software and concepts 2 - inability to efficiently litigate and have a patent invalidated by demonstrating that it is truly trivial Google is a major force of good in this fight and the Oracle litigation has shown my industry a great deal of hope on this front. In particular Judge Alsup on that case showed a very keen understanding of the technology in question and how ridiculous the patent was that Oracle litigated with. That story had a happy ending, but honestly in large part because of that one judge. If this were a different court there could have been a vastly different outcome. http://news.cnet.com/8301-1035_3-57445082-94/judge-william-alsup-master-of-the-court-and-java/ http://news.cnet.com/8301-1035_3-57445082-94/judge-william-a... My question to you is simple - How can we address these root causes? The current patent system and review system was not designed for software and is clearly failing to adapt to the current environment and pace. USPTO is granting patents at an ever increasing rate. We quite literally are in such a broken state that I would wager that every piece of software being sold today is infringing on some patent. How long until that structure completely halts the development of any innovation at all? Too big of an issue to ignore. Thanks for listening.

forgottenpaswrd 14y ago

Most important of all, if you want a patent, provide working code.