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How would you legally define "software patent"? If you figure it out, please let the Supreme Court, the CAFC and the USPTO know, because currently nobody really

How would you legally define "software patent"? If you figure it out, please let the Supreme Court, the CAFC and the USPTO know, because currently nobody really knows. As for "ammunition", look up the Berkeley Patent Survey [1]. The only damning thing you'll find in there, though, is that entrepreneurs in software on average don't think they present a competitive advantage, so "only" 60% of software startups file for patents. And it's typically because investors ask for them. Edit: I misremembered... It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049

AnthonyMouse 13y ago
> How would you legally define "software patent"? Software patent: A patent that can be infringed by executing a software program on a general purpose computer. > It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. Which does tell you something, doesn't it? Unless VC-backed startups are an incredibly small percentage of startups, the patents filed by non-VC-backed startups would have to be significantly smaller than 24% (I assume 25% was a typo, see table on page 1277 of the report). Moreover, given the stark contrast in the numbers, query whether the VCs are interested in patents as patents vs. interested in them as a method for weeding out uncommitted startup founders. But I'm less concerned about the number of patents software startups are applying for. If nobody was applying for software patents at all, obviously the patent system wouldn't be doing any good there, but it wouldn't really be the strongest call for abolishing them -- no harm no foul, right? The problem isn't (just) the lack of usefulness or cost effectiveness of patents to innovators, it's the harm created by mass producing land mines. Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is.
- throwawaykf 13y ago
  > Software patent: A patent that can be infringed by executing a software program on a general purpose computer. Ever wonder why all the jurists all over the world have not stumbled upon such a simple and elegant definition? Herein lies just one problem: your definition of software patents may also include: - Control systems for automotive, industrial and robotic systems. - Signal processing methods for digital communications, audio processing, speech processing, image processing, video processing, automated control systems, and so on. - Microcode in processors - Embedded firmware in appliances and devices. - Mechanical watch designs. They are simply mechanical implementations of algorithms. - Digital circuits, chips and hardware that implements any of the above. The software / hardware equivalence makes simple definitions impossible. > Which does tell you something, doesn't it? It could tell me many things, depending on what assumptions I may apply. Let's see how many you disagree with. - The majority of software startups are not doing anything particularly technically innovative. - The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative. - Patents are expensive to apply for and get, something a startup can't often afford. - Patents don't provide enough protection for software products anyway. (The last two are actually borne out by the study.) > query whether the VCs are interested in patents vs. interested in them as a method for weeding out uncommitted startup founders. Why wonder when there are studies on the subject? It's called "signaling". Of course VCs have no interest in IP itself, only what it means for their ROI. But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil. > Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is. Again, why guess when there are studies :-) If you believe James Bessen it's actually manufacturing, industrial and semiconductor firms. (See his "A generation of software patents" paper. Flawed study, IMO, but a useful starting point.) If the answer surprises you, maybe you should consider that "software patents" are not easy to define.
  - AnthonyMouse 13y ago
    > The software / hardware equivalence makes simple definitions impossible. The software / hardware equivalence is overstated. You can implement everything in hardware that you can implement in software, but you can't implement everything in software that you can implement in hardware. There is no software alone that you can run on a general purpose computer to cause it to generate thrust, or convert raw steel into an automobile chassis, or help the immune system to fight cancer. So your argument seems to be that we can't define "software patent" as "patent that software executing on a general purpose computer infringes" because that would include patents over software hard-coded into hardware. But why is that a problem? Firmware is code. Microcode is code. They're supposed to fall into the same category as "software" -- the fact that you can't disambiguate them is a result of them being the same thing. And they are all things that, like other software, can be protected by copyright. On the other hand, the watch isn't the same thing. The formula that describes the timing of a watch mechanism is not a watch mechanism. A watch simulator is not a watch. Executing a software simulator of a watch mechanism on a general purpose computer without a clock doesn't imbue it with the ability to keep time. You can patent a physical watch without patenting its "algorithm" in much the same way as you can patent a specific nuclear reactor design without patenting E=MC^2, or patent a drug without causing a research paper describing the drug to infringe. >- The majority of software startups are not doing anything particularly technically innovative. >- The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative. The second is a refutation of the first. If you take Microsoft, IBM et al as not doing anything particularly technically innovative, even though they are applying for a large number of patents, "innovation" (in the sense of interesting rather than merely something you can lawyer through the patent office) is clearly not a requirement for obtaining a patent. Which means that a lack of innovation can't adequately explain why startups should be less inclined to file for patents than larger firms which are innovating even less. >- Patents are expensive to apply for and get, something a startup can't often afford. >- Patents don't provide enough protection for software products anyway. It doesn't surprise me that the study found both of these. This is evidence that software patents are ineffective to promote innovation. But again, uselessness without harm is irritating but mostly benign. The real trouble is that software patents are harmful, because they entrench incumbents by creating patent thickets and facilitate the trolling of successful innovators by lawyers and failures. > But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil. That's the point. If we get rid of software patents then VCs would need to find some other signaling mechanism to distinguish between startups, but founders would no longer need to spend scarce resources and time on patent prosecution that could better be spent somewhere more productive.
dublinben 13y ago
Can't we just return to the point when software which was copyrighted could not also be patented? This double-dipping is unique to the software industry, and has proven to be harmful to innovation.

AnthonyMouse 13y ago

> How would you legally define "software patent"? Software patent: A patent that can be infringed by executing a software program on a general purpose computer. > It's actually only 25% of all software startups in the survey, but 67% of VC-backed startups. Which does tell you something, doesn't it? Unless VC-backed startups are an incredibly small percentage of startups, the patents filed by non-VC-backed startups would have to be significantly smaller than 24% (I assume 25% was a typo, see table on page 1277 of the report). Moreover, given the stark contrast in the numbers, query whether the VCs are interested in patents as patents vs. interested in them as a method for weeding out uncommitted startup founders. But I'm less concerned about the number of patents software startups are applying for. If nobody was applying for software patents at all, obviously the patent system wouldn't be doing any good there, but it wouldn't really be the strongest call for abolishing them -- no harm no foul, right? The problem isn't (just) the lack of usefulness or cost effectiveness of patents to innovators, it's the harm created by mass producing land mines. Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is.

throwawaykf 13y ago
> Software patent: A patent that can be infringed by executing a software program on a general purpose computer. Ever wonder why all the jurists all over the world have not stumbled upon such a simple and elegant definition? Herein lies just one problem: your definition of software patents may also include: - Control systems for automotive, industrial and robotic systems. - Signal processing methods for digital communications, audio processing, speech processing, image processing, video processing, automated control systems, and so on. - Microcode in processors - Embedded firmware in appliances and devices. - Mechanical watch designs. They are simply mechanical implementations of algorithms. - Digital circuits, chips and hardware that implements any of the above. The software / hardware equivalence makes simple definitions impossible. > Which does tell you something, doesn't it? It could tell me many things, depending on what assumptions I may apply. Let's see how many you disagree with. - The majority of software startups are not doing anything particularly technically innovative. - The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative. - Patents are expensive to apply for and get, something a startup can't often afford. - Patents don't provide enough protection for software products anyway. (The last two are actually borne out by the study.) > query whether the VCs are interested in patents vs. interested in them as a method for weeding out uncommitted startup founders. Why wonder when there are studies on the subject? It's called "signaling". Of course VCs have no interest in IP itself, only what it means for their ROI. But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil. > Because if software startups aren't getting many software patents, but the number of software patents being issued keeps going up, guess who is. Again, why guess when there are studies :-) If you believe James Bessen it's actually manufacturing, industrial and semiconductor firms. (See his "A generation of software patents" paper. Flawed study, IMO, but a useful starting point.) If the answer surprises you, maybe you should consider that "software patents" are not easy to define.
- AnthonyMouse 13y ago
  > The software / hardware equivalence makes simple definitions impossible. The software / hardware equivalence is overstated. You can implement everything in hardware that you can implement in software, but you can't implement everything in software that you can implement in hardware. There is no software alone that you can run on a general purpose computer to cause it to generate thrust, or convert raw steel into an automobile chassis, or help the immune system to fight cancer. So your argument seems to be that we can't define "software patent" as "patent that software executing on a general purpose computer infringes" because that would include patents over software hard-coded into hardware. But why is that a problem? Firmware is code. Microcode is code. They're supposed to fall into the same category as "software" -- the fact that you can't disambiguate them is a result of them being the same thing. And they are all things that, like other software, can be protected by copyright. On the other hand, the watch isn't the same thing. The formula that describes the timing of a watch mechanism is not a watch mechanism. A watch simulator is not a watch. Executing a software simulator of a watch mechanism on a general purpose computer without a clock doesn't imbue it with the ability to keep time. You can patent a physical watch without patenting its "algorithm" in much the same way as you can patent a specific nuclear reactor design without patenting E=MC^2, or patent a drug without causing a research paper describing the drug to infringe. >- The majority of software startups are not doing anything particularly technically innovative. >- The (vast) majority of the software industry as a whole is not doing anything particularly technically innovative. The second is a refutation of the first. If you take Microsoft, IBM et al as not doing anything particularly technically innovative, even though they are applying for a large number of patents, "innovation" (in the sense of interesting rather than merely something you can lawyer through the patent office) is clearly not a requirement for obtaining a patent. Which means that a lack of innovation can't adequately explain why startups should be less inclined to file for patents than larger firms which are innovating even less. >- Patents are expensive to apply for and get, something a startup can't often afford. >- Patents don't provide enough protection for software products anyway. It doesn't surprise me that the study found both of these. This is evidence that software patents are ineffective to promote innovation. But again, uselessness without harm is irritating but mostly benign. The real trouble is that software patents are harmful, because they entrench incumbents by creating patent thickets and facilitate the trolling of successful innovators by lawyers and failures. > But if there's no funding, there's no startup, let alone innovation, so for many founders it's a necessary evil. That's the point. If we get rid of software patents then VCs would need to find some other signaling mechanism to distinguish between startups, but founders would no longer need to spend scarce resources and time on patent prosecution that could better be spent somewhere more productive.

dublinben 13y ago

Can't we just return to the point when software which was copyrighted could not also be patented? This double-dipping is unique to the software industry, and has proven to be harmful to innovation.