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Here is one of those rare stories in hacker news where I can claim special expertise. But yeah, I am a patent lawyer, so everyone listen to me :) I should poin

by hristov 17y ago

Here is one of those rare stories in hacker news where I can claim special expertise. But yeah, I am a patent lawyer, so everyone listen to me :) I should point out that this case does not directly concern software patents. The patent at question is not a software patent but a business method patent. It was a patent for a commodity trading strategy that as claimed did not require a computer or software to execute (i.e., it could have been executed by a human without the aid of a computer). Now why does everyone say that software patents are on trial? Well, many people, especially those that want to see software patents invalidated, hope that either (i) the supreme court will make an anti-patent ruling that is broad enough to cover software patents or (ii) even if they do not invalidate software patents, the supreme court will recite some kind of reasoning that will be used thereafter to attack software patents. But any effect on software patents from this case will be indirect. The supreme court usually does not like to rule on things that are not properly in front of it. So their decision here will not stray from the matter at hand which is business method patents. In my opinion, the supreme court should affirm the federal circuit in rejecting business method patents. I think it is common sense that patents should be limited to technology one way or another. But regarding to software -- I agree with pg that there really isn't anything special about software that is not applicable to hardware, and there is no reason to single software out. When people complain about software patents, they usually complain about obvious patents, and that is an issue sometimes. But the way to solve this is make sure the patent office applies the obviousness laws better and not by wholesale invalidation of all software patents.

greendestiny 17y ago
I don't think the problem with software patents exists solely in the fundamental difference between hardware and software. I think the problem arises from a number of things including the number of software inventors (nearly every programmer at one time or another) and the abstract nature of software. These things tend to mean that inventions are far more likely to coinvented than copied in the world of software. An enforcement of the level of nonobviousness needed in software patents to make them useful for society would just about ban them outright anyway.
wtallis 17y ago
Any ruling striking down the Bilski patent without placing new limits on software patents would be ineffectual, wouldn't it? Breyer alluded to business method patents filed in the form of "Do X, with/on a computer", but if those and purely mathematical software patents are made clearly invalid, then that would take care of most of the problematic software patents.
a-priori 17y ago
I want to share my views on this issue, because they're somewhat different from the typical arguments I hear against software patents. I'd like feedback from anyone willing to provide it. I agree with you and PG that there's nothing fundamentally different about software that should make it unpatentable, but I think that the policy should be decided based on what will best stimulate innovation. For whatever reason, right now patents are more of a hinderance. Innovation in software is happening often despite patents, and rarely because of them. Even though the industry is around a half-century old now, we still seem to be in a sort of "exploratory phase" where there's no consensus on how software should best be developed, or what the "best practices" and core techniques of the industry are. I'm trying to come up with a good analogy, but I don't think this has ever happened with another technology for such a long period of time. Those of us in the industry try to pretend this is not the case by wrapping what we do in lingo and titles from more developed fields, like engineering, in order to appear more respectable. I, myself, have held the title of "software engineer" before, but I'd be lying to say that what I do is anywhere near as well understood as designing a bridge, a car, or a building's electrical system. The current problems with software patents, such as poor enforcement of the obviousness test, all stem from this. There's no clear understanding right now of what is "obvious". While this exploratory phase lasts, software patents are a form of premature optimization. Presumably, at some point, we'll enter a sort of "exploitation phase" where the techniques and methods for developing software stabilize. The spontaneous innovation we currently see will begin to slow, and it will make sense to try to foster innovation with patents. When that happens, the issue of software patents should be revisited, but for the time being, I think that society would be better off without them.
owinebarger 17y ago
PG and you draw the wrong conclusion - to the extent hardware is like software it should only be protected as expression. The sad fact about intellectual property law is that the courts have taken the "To promote the Progress of Science and useful Arts" part of the copyright clause and affixed it to the first amendment instead. The implicit message of including the clause in the constitution at all is that the right to copy exists and belongs to everybody. That right is only properly traded when the expression or invention fulfills that requirement. That being said, I don't advocate acting as if patents are not where they are. You've got to take the world as you find it, and if the government makes patents available on loose terms you should use that to your business's advantage.

by hristov 17y ago

greendestiny 17y ago

I don't think the problem with software patents exists solely in the fundamental difference between hardware and software. I think the problem arises from a number of things including the number of software inventors (nearly every programmer at one time or another) and the abstract nature of software. These things tend to mean that inventions are far more likely to coinvented than copied in the world of software. An enforcement of the level of nonobviousness needed in software patents to make them useful for society would just about ban them outright anyway.

wtallis 17y ago

Any ruling striking down the Bilski patent without placing new limits on software patents would be ineffectual, wouldn't it? Breyer alluded to business method patents filed in the form of "Do X, with/on a computer", but if those and purely mathematical software patents are made clearly invalid, then that would take care of most of the problematic software patents.

a-priori 17y ago

I want to share my views on this issue, because they're somewhat different from the typical arguments I hear against software patents. I'd like feedback from anyone willing to provide it. I agree with you and PG that there's nothing fundamentally different about software that should make it unpatentable, but I think that the policy should be decided based on what will best stimulate innovation. For whatever reason, right now patents are more of a hinderance. Innovation in software is happening often despite patents, and rarely because of them. Even though the industry is around a half-century old now, we still seem to be in a sort of "exploratory phase" where there's no consensus on how software should best be developed, or what the "best practices" and core techniques of the industry are. I'm trying to come up with a good analogy, but I don't think this has ever happened with another technology for such a long period of time. Those of us in the industry try to pretend this is not the case by wrapping what we do in lingo and titles from more developed fields, like engineering, in order to appear more respectable. I, myself, have held the title of "software engineer" before, but I'd be lying to say that what I do is anywhere near as well understood as designing a bridge, a car, or a building's electrical system. The current problems with software patents, such as poor enforcement of the obviousness test, all stem from this. There's no clear understanding right now of what is "obvious". While this exploratory phase lasts, software patents are a form of premature optimization. Presumably, at some point, we'll enter a sort of "exploitation phase" where the techniques and methods for developing software stabilize. The spontaneous innovation we currently see will begin to slow, and it will make sense to try to foster innovation with patents. When that happens, the issue of software patents should be revisited, but for the time being, I think that society would be better off without them.

owinebarger 17y ago

PG and you draw the wrong conclusion - to the extent hardware is like software it should only be protected as expression. The sad fact about intellectual property law is that the courts have taken the "To promote the Progress of Science and useful Arts" part of the copyright clause and affixed it to the first amendment instead. The implicit message of including the clause in the constitution at all is that the right to copy exists and belongs to everybody. That right is only properly traded when the expression or invention fulfills that requirement. That being said, I don't advocate acting as if patents are not where they are. You've got to take the world as you find it, and if the government makes patents available on loose terms you should use that to your business's advantage.