4 ms·

So suppose I want to make a novel device, part of its functionality is software. I can't patent the software only the hardware. It's a mass market device, so I

So suppose I want to make a novel device, part of its functionality is software. I can't patent the software only the hardware. It's a mass market device, so I have an incentive to make the software a trade secret. I don't want people to conveniently reverse engineer my software so I design a custom CPU and store the code in encrypted form. That's a whole bunch of overhead that has been created by abolishing software patents. Not only will this kind of thing happen, but it will become commonplace and convenient (e.g. there will be off the shelf CPU designs that support obfuscation). Imagine the digital world returning to the guild system — and the beauty of digital technology is that this could happen ridiculously fast. Now, yes, trivial algorithms would not be worth protecting this way, and that's a Good Thing. But consider the inefficiencies and stupidity that will be created by abolishing software patents altogether. Oh and the DMCA will make any efforts to penetrate obfuscated software illegal in perpetuity.

linuxhansl 14y ago
RMS has a clear definition. Software that runs on a general purpose computer should not be patentable.
- bcoates 14y ago
  Why don't the anti-patent people use the simpler rule "Software cannot violate a patent". So if someone makes a physical invention that does something they can patent it but if it's something a general purpose computer can be programmed to do, writing that program does not cause the computer to violate the patent.
  - linuxhansl 14y ago
    It seems it is less of a problem to patent something physical (like an engine). In modern times there are few physical things that do not involve some kind of software, so it makes sense (although I'd still prefer not to have this at all) to patent the thing as a whole.
  - demallien 14y ago
    I've missed the party on this discussion, but I'm always fascinated when people make the argument you just made. Why should software be treated differently from hardware? Take the example of an old car engine. The spark plugs are fired by a rotating commutator switch in the distributor cap. The design of the commutator is patentable. But if I was going to implement that system today, I'd simply program a simple microcontroller to fire the spark plugs in sequence. The physical system has been replaced directly by a software system, but one is patentable, and the other isn't? In short, I would answer your question with a question. Why can hardware violate a patent and software not?
    - bcoates 14y ago
      Well obviously software can violate a patent I just think it's bad policy and the law should be changed. I'm not making a philosophical distinction or saying software patents are inherently unjust. Policy by nature makes an arbitrary distinction and says one thing has good effects and the other bad, so what follows is a policy argument as to why the arbitrary legal distinction should be made. Going from your example, in the absence of cheap programmable computers the problem of coordinating spark timing with the engine is a real engineering problem that probably required nontrivial R&D resources to get right. To the extent that distributors remained useful to the world, those sunk costs should be protected. If you didn't, there'd be a toxic second-mover advantage to just copying the other guy's R&D work. Software just doesn't have those kind of sunk-cost discovery problem, at least not at anything like the scale other disciplines do. The fixed costs in software are different. They're almost all about execution, education, coordination, and marketing. Imagine a software R&D guy, who discovers a new thing you can do with software. Assume the idea works, and is profitable: He's still spent a tiny fraction of bringing a product to market, even a product that is just an implementation of his invention. Patents won't fix the second-mover advantage, if any, because the first-mover costs aren't from software research. The mismatch actually starts to matter when non-practicing inventors come into play. In the old world of industry, these guys were at least providing a public service by creating inventions nobody else bothered to fund, so it was reasonable that companies that found their inventions useful should pay for them. But in software the non-practicing inventor hasn't paid the cost. There is still the first-mover disadvantage out there of building the market, educating your users, etc. on top of the cost of turning the invention into a shipable product that everyone in the market has to pay.
  - dlitz 14y ago
    This is actually what Stallman is advocating! In his own words: http://www.wired.com/opinion/2012/11/richard-stallman-software-patents http://www.wired.com/opinion/2012/11/richard-stallman-softwa... > My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.
    - bcoates 14y ago
      Thanks, I don't know how I missed that, I blame RMS's hair. I guess the phrase "Software Patents" and the strange rules about software patentability in Europe gave me the impression that they wanted to take the non-patentable route instead of the non-infringing one.
- Tloewald 14y ago
  So instead of getting economies of scale with general purpose computers we'll create a huge incentive to create special purpose silicon running obfuscated code. Perfect.
bcoates 14y ago
That's fine. Trade secrets are already how most things work in software and it's a much better model. I don't want their dumb ideas; I don't want their bad code; and I don't care about not being able to repurpose subsidized hardware. All I care about is removing the veto power the patent system gives random strangers have over my ability to develop things they have nothing to do with.
- randomdata 14y ago
  Trade secrets are what patents were designed to protect against. So that current knowledge can be made available to future generations, at the cost of a short term of exclusivity to the one who holds the secret. I feel the problem is that you can recreate many of the patents being granted today just by taking a quick glance at the implementation. What do future generations have to gain by knowing that one click can finalize a purchase on a website? Knowing what precise measurements of compounds when combined together can cure a disease has a little more merit.
  - bad_user 14y ago
    Isn't it funny how most software patents can't be protected by trade secrets? How many patents were infringed (1) by mistake, or (2) by somebody trying to emulate some behavior or (3) by somebody reading a patent description? Personaly I've never seen (3) happening. It may sometimes happen when it comes to video codecs or AI, but funny how those domains are strongly linked to math ;)
- Tloewald 14y ago
  This is a random veto power with a fixed lifespan in exchange ofr which the design is published. Trade secrets were an ongoing disaster. We're still trying to figure out how Stradivarius made violins, for example. Yes, stupid things get patented. Yes, the system is corrupt. But don't assume some other "simple" system or non system will have no downside.
  - andrewaylett 14y ago
    The trouble is, it's not the same: Software Patents protect the design of the idea not the implementation. Even after the patent has expired, you still don't get to see how the product actually works. Also, the implementation is protected by copyright -- it seems unfair to give software double-protection.
darkarmani 14y ago
> Not only will this kind of thing happen, but it will become commonplace and convenient...That's a whole bunch of overhead that has been created by abolishing software patents. Which is it? Convenient or a whole bunch of overhead? But then again, who cares? When is the last time anyone implemented a patented idea by looking at old patents? The idea is old by the time it is patented. > Oh and the DMCA will make any efforts to penetrate obfuscated software illegal in perpetuity. And that is worse than patent law? How would anyone know that obfuscated software was penetrated? That only comes into play when people uses snippets of firmware anyway. They already use DMCA like this, so it doesn't really matter. The biggest problem is the John Carmack problem of sitting down to do a week of work in a domain, and creating something that you find out is already patented.
new299 14y ago
"Not only will this kind of thing happen, but it will become commonplace and convenient (e.g. there will be off the shelf CPU designs that support obfuscation). Imagine the digital world returning to the guild system — and the beauty of digital technology is that this could happen ridiculously fast." Almost every embedded processor supports this kind of functionality (firmware in embedded flash can not be dumped). Encryption is also common place, as is code signing. I can't see you have much of a argument here, this stuff is already common place and used in addition (and sometimes in place of because it's actually a lot cheaper) software patents.

linuxhansl 14y ago

RMS has a clear definition. Software that runs on a general purpose computer should not be patentable.

bcoates 14y ago
Why don't the anti-patent people use the simpler rule "Software cannot violate a patent". So if someone makes a physical invention that does something they can patent it but if it's something a general purpose computer can be programmed to do, writing that program does not cause the computer to violate the patent.
- linuxhansl 14y ago
  It seems it is less of a problem to patent something physical (like an engine). In modern times there are few physical things that do not involve some kind of software, so it makes sense (although I'd still prefer not to have this at all) to patent the thing as a whole.
- demallien 14y ago
  I've missed the party on this discussion, but I'm always fascinated when people make the argument you just made. Why should software be treated differently from hardware? Take the example of an old car engine. The spark plugs are fired by a rotating commutator switch in the distributor cap. The design of the commutator is patentable. But if I was going to implement that system today, I'd simply program a simple microcontroller to fire the spark plugs in sequence. The physical system has been replaced directly by a software system, but one is patentable, and the other isn't? In short, I would answer your question with a question. Why can hardware violate a patent and software not?
  - bcoates 14y ago
    Well obviously software can violate a patent I just think it's bad policy and the law should be changed. I'm not making a philosophical distinction or saying software patents are inherently unjust. Policy by nature makes an arbitrary distinction and says one thing has good effects and the other bad, so what follows is a policy argument as to why the arbitrary legal distinction should be made. Going from your example, in the absence of cheap programmable computers the problem of coordinating spark timing with the engine is a real engineering problem that probably required nontrivial R&D resources to get right. To the extent that distributors remained useful to the world, those sunk costs should be protected. If you didn't, there'd be a toxic second-mover advantage to just copying the other guy's R&D work. Software just doesn't have those kind of sunk-cost discovery problem, at least not at anything like the scale other disciplines do. The fixed costs in software are different. They're almost all about execution, education, coordination, and marketing. Imagine a software R&D guy, who discovers a new thing you can do with software. Assume the idea works, and is profitable: He's still spent a tiny fraction of bringing a product to market, even a product that is just an implementation of his invention. Patents won't fix the second-mover advantage, if any, because the first-mover costs aren't from software research. The mismatch actually starts to matter when non-practicing inventors come into play. In the old world of industry, these guys were at least providing a public service by creating inventions nobody else bothered to fund, so it was reasonable that companies that found their inventions useful should pay for them. But in software the non-practicing inventor hasn't paid the cost. There is still the first-mover disadvantage out there of building the market, educating your users, etc. on top of the cost of turning the invention into a shipable product that everyone in the market has to pay.
- dlitz 14y ago
  This is actually what Stallman is advocating! In his own words: http://www.wired.com/opinion/2012/11/richard-stallman-software-patents http://www.wired.com/opinion/2012/11/richard-stallman-softwa... > My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.
  - bcoates 14y ago
    Thanks, I don't know how I missed that, I blame RMS's hair. I guess the phrase "Software Patents" and the strange rules about software patentability in Europe gave me the impression that they wanted to take the non-patentable route instead of the non-infringing one.
Tloewald 14y ago
So instead of getting economies of scale with general purpose computers we'll create a huge incentive to create special purpose silicon running obfuscated code. Perfect.

bcoates 14y ago

That's fine. Trade secrets are already how most things work in software and it's a much better model. I don't want their dumb ideas; I don't want their bad code; and I don't care about not being able to repurpose subsidized hardware. All I care about is removing the veto power the patent system gives random strangers have over my ability to develop things they have nothing to do with.

randomdata 14y ago
Trade secrets are what patents were designed to protect against. So that current knowledge can be made available to future generations, at the cost of a short term of exclusivity to the one who holds the secret. I feel the problem is that you can recreate many of the patents being granted today just by taking a quick glance at the implementation. What do future generations have to gain by knowing that one click can finalize a purchase on a website? Knowing what precise measurements of compounds when combined together can cure a disease has a little more merit.
- bad_user 14y ago
  Isn't it funny how most software patents can't be protected by trade secrets? How many patents were infringed (1) by mistake, or (2) by somebody trying to emulate some behavior or (3) by somebody reading a patent description? Personaly I've never seen (3) happening. It may sometimes happen when it comes to video codecs or AI, but funny how those domains are strongly linked to math ;)
Tloewald 14y ago
This is a random veto power with a fixed lifespan in exchange ofr which the design is published. Trade secrets were an ongoing disaster. We're still trying to figure out how Stradivarius made violins, for example. Yes, stupid things get patented. Yes, the system is corrupt. But don't assume some other "simple" system or non system will have no downside.
- andrewaylett 14y ago
  The trouble is, it's not the same: Software Patents protect the design of the idea not the implementation. Even after the patent has expired, you still don't get to see how the product actually works. Also, the implementation is protected by copyright -- it seems unfair to give software double-protection.

darkarmani 14y ago

> Not only will this kind of thing happen, but it will become commonplace and convenient...That's a whole bunch of overhead that has been created by abolishing software patents. Which is it? Convenient or a whole bunch of overhead? But then again, who cares? When is the last time anyone implemented a patented idea by looking at old patents? The idea is old by the time it is patented. > Oh and the DMCA will make any efforts to penetrate obfuscated software illegal in perpetuity. And that is worse than patent law? How would anyone know that obfuscated software was penetrated? That only comes into play when people uses snippets of firmware anyway. They already use DMCA like this, so it doesn't really matter. The biggest problem is the John Carmack problem of sitting down to do a week of work in a domain, and creating something that you find out is already patented.

new299 14y ago

"Not only will this kind of thing happen, but it will become commonplace and convenient (e.g. there will be off the shelf CPU designs that support obfuscation). Imagine the digital world returning to the guild system — and the beauty of digital technology is that this could happen ridiculously fast." Almost every embedded processor supports this kind of functionality (firmware in embedded flash can not be dumped). Encryption is also common place, as is code signing. I can't see you have much of a argument here, this stuff is already common place and used in addition (and sometimes in place of because it's actually a lot cheaper) software patents.