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Patents on Software: A Nobel Laureate’s View

109 points by ckuehne 14y ago

PaulHoule 14y ago
Note there's a flip side to this -- the timescale of software patents is completely wrong from the viewpoint of a company that wants to use patents honestly. I was looking at a face recognition patent that was filed by the US by a Japanese company in 1998 that was finally issued in 2006. Eight years is a very long time in the fast moving software industry -- even if you get lucky and your patent granted in two years, it's quite possible that your invention is obsolete by the time you get your patent. Given that software is so fast paced, most organizations that expect to be "practicing entities" find the patent application to be a distraction from the task of getting a competitive product in the marketplace. This is a very different situation from other fields where you really can get a patent for a mechanical or electronic thing and then have the patent as a tool for negotiation w/ manufacturers.
- danielweber 14y ago
  Yes. We probably need a brand new category for software; something that grants protection faster, expires sooner, makes it easy to other people to implement after expiration, and has independent invention as a positive defense.
  - angersock 14y ago
    Or, you know, we could just get rid of software patents entirely. Less paperwork for all, and we can get back to shipping code without worrying.
    - spartango 14y ago
      If only it were that simple: one of the first, pragmatic challenges to this process would be to define a software patent. Remember that algorithms are not supposed to be patentable, so most of these "software" patents actually include elements of hardware, however broad.
- mtgx 14y ago
  That's similar to how Apple used a 15 year old patent against HTC, even though it had nothing to do with the iPhone. They used a, for most intents and purposes, very irrelevant patent, to keep HTC from competing with them against the iPhone (or make them pay dearly for it).
jandrewrogers 14y ago
The argument made is not unique to software or computer algorithms. Chemical process patents are identical to computer algorithm patents in this respect, just replace bits with molecules, and are among the oldest patentable subject matters. Long, complex sequential algorithms are a feature of many engineering disciplines. Chemical engineering, to use that example, designs elaborate and complex dynamic systems by chaining together abstract chemical algorithms. Each one of those little algorithms is subject to both patent and copyright. Like with software most of the commonly used algorithms and clever hacks were either never patented or the patents have long expired. It is only on the bleeding edge that some chemical algorithms are under patent; as with computer algorithms there are an unbounded number of potential algorithms but some are more efficient than others. Specific implementations are still covered by copyright and are widely licensed (as libraries). Most of the nominal specialness attributed to software as a domain for intellectual property does not really exist. Yet the rarely questioned assertion that computer software is special in some way has created a dearth of comparative studies that would likely be valuable from both a theoretical standpoint as well as a practical policy standpoint. Either these other areas, like chemical processes, are equally broken at a fundamental level and the scope should be extended beyond software, or there are differences in implementation across otherwise equivalent domains and we should borrowing from the better implementation. It seems like an oversight that no one is attempting to do either.
- nitrogen 14y ago
  Software is different because the cost of materials consumed is effectively zero and the barrier to entry is at most $35 for a Raspberry Pi, allowing anyone to code their way into a patent thicket. Software is also different because of its rapid pace of change, a pace that is threatened by insanely long patent terms (approaching as long as a good chunk of programmers have been alive).
  - brindle 14y ago
    I'm a chemist and a software engineer. With all due respect there are a lot of similarities. People who do ground breaking research need to have a way of protecting their intellectual property, whether its patents, copyrights, and or reasonable license fees, etc...
ecolak 14y ago
The whole "protecting intellectual property" thing could work if it was possible to issue patents in an unbiased and consistent way but patent examiners are human beings and they do some research on the issue, read the arguments from the patent lawyers and come to a (usually biased) decision. You even see cases where a patent is rejected 9 times and get accepted the 10th time. It is extremely difficult to come up with an unbiased, consistent and all-knowing (past work) way to issue patents, I'm not even sure if it's possible at all. And that's another reason why there should be no patents issued at least in the software industry.
hermanhermitage 14y ago
Doesn't the problem with imaginary things like gods, beliefs or intellectual property begin when someone tries to claim they are real and you must obey them?
deleted 14y ago
[deleted]

109 points by ckuehne 14y ago

Note there's a flip side to this -- the timescale of software patents is completely wrong from the viewpoint of a company that wants to use patents honestly. I was looking at a face recognition patent that was filed by the US by a Japanese company in 1998 that was finally issued in 2006. Eight years is a very long time in the fast moving software industry -- even if you get lucky and your patent granted in two years, it's quite possible that your invention is obsolete by the time you get your patent. Given that software is so fast paced, most organizations that expect to be "practicing entities" find the patent application to be a distraction from the task of getting a competitive product in the marketplace. This is a very different situation from other fields where you really can get a patent for a mechanical or electronic thing and then have the patent as a tool for negotiation w/ manufacturers.

danielweber 14y ago
Yes. We probably need a brand new category for software; something that grants protection faster, expires sooner, makes it easy to other people to implement after expiration, and has independent invention as a positive defense.
- angersock 14y ago
  Or, you know, we could just get rid of software patents entirely. Less paperwork for all, and we can get back to shipping code without worrying.
  - spartango 14y ago
    If only it were that simple: one of the first, pragmatic challenges to this process would be to define a software patent. Remember that algorithms are not supposed to be patentable, so most of these "software" patents actually include elements of hardware, however broad.
mtgx 14y ago
That's similar to how Apple used a 15 year old patent against HTC, even though it had nothing to do with the iPhone. They used a, for most intents and purposes, very irrelevant patent, to keep HTC from competing with them against the iPhone (or make them pay dearly for it).

jandrewrogers 14y ago

The argument made is not unique to software or computer algorithms. Chemical process patents are identical to computer algorithm patents in this respect, just replace bits with molecules, and are among the oldest patentable subject matters. Long, complex sequential algorithms are a feature of many engineering disciplines. Chemical engineering, to use that example, designs elaborate and complex dynamic systems by chaining together abstract chemical algorithms. Each one of those little algorithms is subject to both patent and copyright. Like with software most of the commonly used algorithms and clever hacks were either never patented or the patents have long expired. It is only on the bleeding edge that some chemical algorithms are under patent; as with computer algorithms there are an unbounded number of potential algorithms but some are more efficient than others. Specific implementations are still covered by copyright and are widely licensed (as libraries). Most of the nominal specialness attributed to software as a domain for intellectual property does not really exist. Yet the rarely questioned assertion that computer software is special in some way has created a dearth of comparative studies that would likely be valuable from both a theoretical standpoint as well as a practical policy standpoint. Either these other areas, like chemical processes, are equally broken at a fundamental level and the scope should be extended beyond software, or there are differences in implementation across otherwise equivalent domains and we should borrowing from the better implementation. It seems like an oversight that no one is attempting to do either.

nitrogen 14y ago
Software is different because the cost of materials consumed is effectively zero and the barrier to entry is at most $35 for a Raspberry Pi, allowing anyone to code their way into a patent thicket. Software is also different because of its rapid pace of change, a pace that is threatened by insanely long patent terms (approaching as long as a good chunk of programmers have been alive).
- brindle 14y ago
  I'm a chemist and a software engineer. With all due respect there are a lot of similarities. People who do ground breaking research need to have a way of protecting their intellectual property, whether its patents, copyrights, and or reasonable license fees, etc...

ecolak 14y ago

The whole "protecting intellectual property" thing could work if it was possible to issue patents in an unbiased and consistent way but patent examiners are human beings and they do some research on the issue, read the arguments from the patent lawyers and come to a (usually biased) decision. You even see cases where a patent is rejected 9 times and get accepted the 10th time. It is extremely difficult to come up with an unbiased, consistent and all-knowing (past work) way to issue patents, I'm not even sure if it's possible at all. And that's another reason why there should be no patents issued at least in the software industry.

hermanhermitage 14y ago

Doesn't the problem with imaginary things like gods, beliefs or intellectual property begin when someone tries to claim they are real and you must obey them?

deleted 14y ago

[deleted]