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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 a

by 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.
- rayiner 14y ago
  I think the impetus for #4 goes away if we raise the bar for obviousness, which we need to do. If you patent a complicated system, it's vanishingly unlikely that someone will come up with an independent version of the same idea within the patent term. If 20 companies legitimately happen onto the same idea, to me that suggests the idea is too obvious to be patentable.
gruseom 14y ago
Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles. What is this doctrine of equivalents and other established principles? I'd like to know if it is reasonable for software or was developed for other fields and then misapplied to ours. Also, can anyone point to an example of a small inventor who made a groundbreaking software contribution, patented it, and then profited from that patent as it was applied by big players on a large scale? Since that's the use case that's supposed to justify software patents, it would be interesting to see some examples. Given how many counterexamples there are (basically, all the ones we hear about), it seems likely that this argument is a straw man, or whatever one calls a straw man when somebody's arguing in favor of it rather than against.

by nroach 14y ago

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.

rayiner 14y ago
I think the impetus for #4 goes away if we raise the bar for obviousness, which we need to do. If you patent a complicated system, it's vanishingly unlikely that someone will come up with an independent version of the same idea within the patent term. If 20 companies legitimately happen onto the same idea, to me that suggests the idea is too obvious to be patentable.

gruseom 14y ago

Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles. What is this doctrine of equivalents and other established principles? I'd like to know if it is reasonable for software or was developed for other fields and then misapplied to ours. Also, can anyone point to an example of a small inventor who made a groundbreaking software contribution, patented it, and then profited from that patent as it was applied by big players on a large scale? Since that's the use case that's supposed to justify software patents, it would be interesting to see some examples. Given how many counterexamples there are (basically, all the ones we hear about), it seems likely that this argument is a straw man, or whatever one calls a straw man when somebody's arguing in favor of it rather than against.