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a) You probably didn't come up with something new and awesome worth the court's protection (sorry) b) If you did, HTC is going to use it anyway and bury your s

by ynniv 14y ago

a) You probably didn't come up with something new and awesome worth the court's protection (sorry) b) If you did, HTC is going to use it anyway and bury your suit in the courts until you run out of money (sorry) c) Either way, your example only applies to hardware or you wouldn't have a supply chain or manufacturing Ultimately, theft of the biggest idea of your 5¢ company doesn't warrant tens of billions of dollars of legal overhead. Perhaps I agree that raising the bar fixes the problem: if your invention can be implemented by a general purpose computer, it does not deserve patent protection. And that's "can", not "is" : if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection. Patent protection is for mechanical inventions (wheat threshers) and material transformations (metal casting). If pharma deserves protection, it is the exception, not the rule.

freehunter 14y ago
Well, it depends. If I had a truly great idea and also had interest in forming a cell phone company, why would I settle for just selling the idea (and why would I attempt to sell it if during the negotiations, the idea could be stolen at any time with no protection for me?) when I could be making millions selling a phone with my great software innovation? The point is, if there's absolutely no legal protection on ideas, ideas are worthless. People use the argument that math is universal and doesn't deserve protection, but the reality is that math is hard. If you come up with a math solution that is really clever, I feel you should be entitled to some kind of protection on it. What is hardware but applied math? Does programming not take man-hours of research and development? Does every line of code paid for make it to market? If we're arguing that R&D costs are what make sense for patents (like the pharma arguments I hear) then maybe you should have to show an itemized bill for your R&D and patent length could be adjusted so it's yours until you recoup that investment. We trash on Edison for stealing ideas and beating the inventor to the PTO. The same thing could happen in software. The solution I see to this is making sure the original inventor has a reasonable time frame to capitalize on the idea before it becomes a free-for-all. By that point, the market has had a chance to speak and recognize your innovation. What we can all agree on is that patents shouldn't be a lifetime income source based on lawsuits.
shasta 14y ago
> if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection The current patent laws are insanity, but I don't agree with this. The class of mathematical ideas too abstract to patent should be distinguished not just by whether or not an idea can be modeled mathematically (they all can!) but by how fundamental the ideas are. The goal should be to protect abstract ideas that will naturally be discovered independently by mathematicians. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals.
- ynniv 14y ago
  Any idea can be modelled mathematically, but that doesn't meet my criteria. Modeling is an estimation of how something works, but it isn't the mechanism by which something works. The current state of software patents results in people filing three sets of claims: the invention itself, a method that implements the invention, and a computer system that implements the invention. The rationale is that if invention claims (complicated math) are not enforceable, method claims might be, and if neither of those are, perhaps claims that mention hardware claim might be. You'll note that none of these motivations are strong, and that's because it has been left up to the courts to decide, and there is very little case law around software patents since everyone settles out of court. We think they are patentable because someone decades ago successfully enforced a patent regarding computer controlled curation of plastic. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals. What makes complex software more valuable than simple software? Any engineer worth their salt will claim the precise opposite. Also, a product is not in itself patentable outside of the trade dress. You first have to find the novel invention inside the product, which is generally a simple idea.
  - shasta 14y ago
    Modeling is an estimation of how something works, but it isn't the mechanism by which something works. Let's look at a concrete example. Suppose someone produces a device that contains some generic components: a centrifuge, spectrum analyzer, etc. and sells this device on the market. Someone else comes along and develops software that, with the aid of one of these generic devices, can detect a blood defect or airborne pathogens or whatever. Do you agree that this software should be patentable? Maybe you'd say that the software isn't patentable, but using the software with the machine is? And attempting to sell a clone of the software wouldn't be patent infringement per se, but if it was clearly intended to be used with the devices would be inducing infringement and also a tort? If that's your position then we agree in spirit, I think, though I think that looks mostly like double talk to me. If you don't think such a device should be patentable on the grounds that the only new component is software, then we disagree. What makes complex software more valuable than simple software? I didn't say it was more valuable, and I don't think complexity should even be a requirement. It's just that software that pertains to the real world tends to be complex.
rayiner 14y ago
You seem to have a very "Web 2.0" viewpoint. Yes, all the consumer-facing web startups pimped here on HN aren't really doing anything where patent protection would be beneficial. But in the embedded realm, there are a lot of situations where software might merit patent protection. E.g. my wife is pregnant, and we recently got an ultrasound. The ultrasound machine gave us a surprisingly detailed three-dimensional image of the fetus. I'd be willing to bet that the algorithms for generating these visualizations were not something you could whip up in a few weeks using Rails. Without patent protection, the maker of that software has to get into the business of building ultrasound machines. He can't just sell the patent to someone who builds ultrasound machines. I think there is a lot of value in being able to facilitate such specialization of labor.
- nitrogen 14y ago
  I'd wager that the algorithms used to produce that 3D ultrasound image are also widely used and documented in academic contexts for scientific imaging. The test for patentability isn't "beyond the comprehension of a Rails developer," it's (or ought to be) "beyond the comprehension of all experts in all related fields."
  - rayiner 14y ago
    The test for patentability isn't "beyond the comprehension of" it's "is not obvious to." I used to work at a company that developed algorithms for wireless devices. They were comprehensible to experts in the field. But they certainly weren't obvious. If they had been, we wouldn't have spent years and millions of dollars coming up with them.
    - akmiller 14y ago
      And if you spent years and millions of dollars coming up with it and some other company somewhere else was doing the same and in the end you had very similar if not identical algorithms why is it that one of you is entitled to use your own creation and the other is not? That's the thing I can't get past with most of your arguments on here. If an algorithm is truly unique and worth the patent then in reality it shouldn't need the patent at all. I also don't understand the "I invented an extremely complicated algorithm for solving X" mentality. We all stand on the shoulders of those who came before us in solving more and more complicated problems. Without the software, algorithms, and general knowledge of computing that have been made available to us we'd not be able to take that and build ever more complicated systems on top of that.

by ynniv 14y ago

freehunter 14y ago

Well, it depends. If I had a truly great idea and also had interest in forming a cell phone company, why would I settle for just selling the idea (and why would I attempt to sell it if during the negotiations, the idea could be stolen at any time with no protection for me?) when I could be making millions selling a phone with my great software innovation? The point is, if there's absolutely no legal protection on ideas, ideas are worthless. People use the argument that math is universal and doesn't deserve protection, but the reality is that math is hard. If you come up with a math solution that is really clever, I feel you should be entitled to some kind of protection on it. What is hardware but applied math? Does programming not take man-hours of research and development? Does every line of code paid for make it to market? If we're arguing that R&D costs are what make sense for patents (like the pharma arguments I hear) then maybe you should have to show an itemized bill for your R&D and patent length could be adjusted so it's yours until you recoup that investment. We trash on Edison for stealing ideas and beating the inventor to the PTO. The same thing could happen in software. The solution I see to this is making sure the original inventor has a reasonable time frame to capitalize on the idea before it becomes a free-for-all. By that point, the market has had a chance to speak and recognize your innovation. What we can all agree on is that patents shouldn't be a lifetime income source based on lawsuits.

shasta 14y ago

> if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection The current patent laws are insanity, but I don't agree with this. The class of mathematical ideas too abstract to patent should be distinguished not just by whether or not an idea can be modeled mathematically (they all can!) but by how fundamental the ideas are. The goal should be to protect abstract ideas that will naturally be discovered independently by mathematicians. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals.

ynniv 14y ago
Any idea can be modelled mathematically, but that doesn't meet my criteria. Modeling is an estimation of how something works, but it isn't the mechanism by which something works. The current state of software patents results in people filing three sets of claims: the invention itself, a method that implements the invention, and a computer system that implements the invention. The rationale is that if invention claims (complicated math) are not enforceable, method claims might be, and if neither of those are, perhaps claims that mention hardware claim might be. You'll note that none of these motivations are strong, and that's because it has been left up to the courts to decide, and there is very little case law around software patents since everyone settles out of court. We think they are patentable because someone decades ago successfully enforced a patent regarding computer controlled curation of plastic. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals. What makes complex software more valuable than simple software? Any engineer worth their salt will claim the precise opposite. Also, a product is not in itself patentable outside of the trade dress. You first have to find the novel invention inside the product, which is generally a simple idea.
- shasta 14y ago
  Modeling is an estimation of how something works, but it isn't the mechanism by which something works. Let's look at a concrete example. Suppose someone produces a device that contains some generic components: a centrifuge, spectrum analyzer, etc. and sells this device on the market. Someone else comes along and develops software that, with the aid of one of these generic devices, can detect a blood defect or airborne pathogens or whatever. Do you agree that this software should be patentable? Maybe you'd say that the software isn't patentable, but using the software with the machine is? And attempting to sell a clone of the software wouldn't be patent infringement per se, but if it was clearly intended to be used with the devices would be inducing infringement and also a tort? If that's your position then we agree in spirit, I think, though I think that looks mostly like double talk to me. If you don't think such a device should be patentable on the grounds that the only new component is software, then we disagree. What makes complex software more valuable than simple software? I didn't say it was more valuable, and I don't think complexity should even be a requirement. It's just that software that pertains to the real world tends to be complex.

rayiner 14y ago

You seem to have a very "Web 2.0" viewpoint. Yes, all the consumer-facing web startups pimped here on HN aren't really doing anything where patent protection would be beneficial. But in the embedded realm, there are a lot of situations where software might merit patent protection. E.g. my wife is pregnant, and we recently got an ultrasound. The ultrasound machine gave us a surprisingly detailed three-dimensional image of the fetus. I'd be willing to bet that the algorithms for generating these visualizations were not something you could whip up in a few weeks using Rails. Without patent protection, the maker of that software has to get into the business of building ultrasound machines. He can't just sell the patent to someone who builds ultrasound machines. I think there is a lot of value in being able to facilitate such specialization of labor.

nitrogen 14y ago
I'd wager that the algorithms used to produce that 3D ultrasound image are also widely used and documented in academic contexts for scientific imaging. The test for patentability isn't "beyond the comprehension of a Rails developer," it's (or ought to be) "beyond the comprehension of all experts in all related fields."
- rayiner 14y ago
  The test for patentability isn't "beyond the comprehension of" it's "is not obvious to." I used to work at a company that developed algorithms for wireless devices. They were comprehensible to experts in the field. But they certainly weren't obvious. If they had been, we wouldn't have spent years and millions of dollars coming up with them.
  - akmiller 14y ago
    And if you spent years and millions of dollars coming up with it and some other company somewhere else was doing the same and in the end you had very similar if not identical algorithms why is it that one of you is entitled to use your own creation and the other is not? That's the thing I can't get past with most of your arguments on here. If an algorithm is truly unique and worth the patent then in reality it shouldn't need the patent at all. I also don't understand the "I invented an extremely complicated algorithm for solving X" mentality. We all stand on the shoulders of those who came before us in solving more and more complicated problems. Without the software, algorithms, and general knowledge of computing that have been made available to us we'd not be able to take that and build ever more complicated systems on top of that.