Going the wrong way, need to address the patent system
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| Author | Content |
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| swbrown Feb 27, 2007 5:43 PM EDT |
they're going about it the wrong way - we already know basically everything we've ever written violates some set of patents and we surely violate some of Microsoft's given how many they've filed and for such trivial things. That's the problem with the software patent system - people patent the obvious, or even other people's inventions (BlueJ), and wait and watch to see if anyone else steps on it as if they were landmines. You don't know they're there until your leg gets blown off. How do landmines 'foster innovation'? What needs to happen: 1) Get it out in the open and start trying to change the software patent system. 2) In combination, start a defensive patent movement to tear it down from the inside - start filing patents on damn near everything you write with terms that permit use in any non-proprietary Open Source (hopefully some lawyers will step up to define this in a way that works). Make the big players in the industry hate the software patent system as well, and they'll help tear it down. |
| jimf Feb 27, 2007 6:53 PM EDT |
> change the software patent system. You mean eliminate it altogether. |
| DarrenR114 Feb 28, 2007 5:27 AM EDT |
jimf, You can't eliminate something that doesn't exist. So-called "software patents" are actually either "design patents" or "utility patents". The trouble comes in when unethical corporations submit patents that are solely software-based. The patent process is designed to protect inventions in progress, so with the right weasel words, it is not so apparent to a non-programmer patent reviewer that a "device" is made up solely of software code and no one else will review it because of the need to protect the inventor's "invention". This sort of thing isn't limited to the PTO. While in the USAF, because I needed a hard drive to put in a PC that originally came with just dual floppy drives, I created a requisition for a "large capacity data storage device." I knew this wording would go right over the heads of the logistics people at SAC HQ. The reason I had to go to this extreme for such a simple request (back in 1990) was that all requisitions for "standard" computer parts had to go through command channels to be bought off the national contract. The idea was to cut costs for hardware and software. The result was having to wait several months for things like hard drives, mice, monitors, etc. There was a loophole - for "non-standard" hardware, the Chief of Base Supply (my boss' boss in this case) could approve purchases on a case-by-case basis. In the end, I got my hard drive (40 Meg RLL as I recall) in 48 hours instead of 48 days - and at less cost than the national contract for computer equipment to boot. And I don't care what many of the old-guard "experts" say - software code is not simply a form of expression for mathematical algorithms. No more so than an artist drawing a circle is performing a mathematical expression. But that's a different debate for another time. |
| jimf Feb 28, 2007 5:53 AM EDT |
> You can't eliminate something that doesn't exist. So-called "software patents" are actually either "design patents" or "utility patents". The trouble comes in when unethical corporations submit patents that are solely software-based. The patent process is designed to protect inventions in progress, so with the right weasel words, it is not so apparent to a non-programmer patent reviewer that a "device" is made up solely of software code and no one else will review it because of the need to protect the inventor's "invention". So obviously, as far as US law is concerned, they do exist. At least until they are reviewed, which could be never. As I said, eliminate it altogether. |
| DarrenR114 Feb 28, 2007 6:21 AM EDT |
>As I said, eliminate it altogether. Eliminate what exactly? Patents? Not going to happen ... EVER. The fact of the matter is that by and large the US patent system does work. Occasionally you do have anamolies that give indications that a legislative repair may be necessary, but that's the way the system is built. It's very organic in nature. Identify the exact source of the problem and fix the cause but let's not throw the baby out with the bath water. |
| hkwint Feb 28, 2007 8:44 AM EDT |
Quoting:Eliminate what exactly? Patents? No, we were talking about software patents (I thought). The US patent system may work rather well, software patents don't, at all. Software should be protected by copyright, not by patents, since patents (ought to be / ) are about implementations, and software patents are (most of the time) about processes and ideas, and are very vague / say nothing about implementations most of the time. |
| DarrenR114 Feb 28, 2007 9:04 AM EDT |
My point is that there is no such thing in the US as a "software patent" so they can't be eliminated. What obviously needs to be changed is the review process for patents involving software code. "Utility Patents" and "Design Patents" which make use of software code are perfectly legitimate. And it has been held by the US courts (as was highlighted by Microsoft in MS v. ATT) that software code itself is not patentable, but must be attached to a device or process. So again my question is: Eliminate what exactly? |
| jimf Feb 28, 2007 10:32 AM EDT |
DarrenR114, You're just playing with semantics, or being obtuse.... But either way it's annoying. In any case software, in any way shape of form (yes, that includes "Utility Patents" and "Design Patents") belongs with copyrights, and 'not' patents (ie generic "software patent"). Is that exact enough enough for you? |
| DarrenR114 Feb 28, 2007 11:04 AM EDT |
jimf, WRONG. Having gone through the patent process quite recently, I can tell you from experience that you are incorrect. Yes, the company I work for also did the copyright route for the software source code, but the software still had to be included in the patent claims for the utility patent because some of the claims were based on the way a certain set of softwareis being used in a certain manner. I'm told by the patent attorney it works the same for design patents. All components of an invention must be specifically described. If a component of a new device is "control software", for instance, then that software must be described in its function and design. This would not make the said patent a "software patent". It would be an invention that includes software. And it's not just "semantics". You go to your congresscritter and ask that laws be enacted to eliminate "software patents". You'll be told that the law already exists - software is not patentable in and of itself. If you want things to change, you've got to be specific *and* correct about what's wrong with the situation. The problem isn't that the law allows for software patents - it doesn't. The problem is that the current review process is not necessarily adequate for the literal deluge of patent applications. A patent is supposed to worded so that a layperson, not necessarily employed in the field of endeavor, can reproduce the invention independent of the inventor. What do we need to do to change the process? If you're not intimately familiar with the complete process, then you're not in the position to make suggestions. Having the PTO asking you or me for improvements to the patent application process would be like the engineers of the Tacoma Narrows Bridge asking the pedestrian off the street how they could have improved their construction process. The pedestrians would certainly be able to point to the results of the problem, but I doubt even 1 in 100 of the witnesses could have identified the cause of the failure of the Tacoma Narrows Bridge. Instead of demanding that software patents be eliminated, how about asking your congressional representatives how Microsoft seems to be able to circumvent the law as you understand it? Who knows? Maybe by you asking the question, a congressional inquiry might just happen, and then maybe, just maybe, some needed patent reform. Let me just close with this analogy: Calling for the elimination of software patents is like demanding laws be enacted against murder, stealing and rape: the laws are already there - we just need to find out why they don't seem to be working. |
| jimf Feb 28, 2007 11:28 AM EDT |
> WRONG. Well, yeah, you are indeed wrong. Sorry, If you (and undoubtedly your company) disagree, I'd expect that. > the laws are already there Yes they are and they need to be changed or repealed. It may not be good for Corporate, but it is in the best interests of the US Citizens... |
| DarrenR114 Feb 28, 2007 11:30 AM EDT |
@jimf - You want to *repeal* the laws that preclude software patents?? Could you do me a favor and re-read my previous with an attitude toward comprehending what I wrote. You're now making zero sense. |
| jimf Feb 28, 2007 11:59 AM EDT |
> You want to *repeal* the laws that preclude software patents?? Absolutely... > comprehending what I wrote. Oh I do, I do. > You're now making zero sense. No, what now exists makes zero sense. Way past time to correct that. What you did get right is that this needs to be handled through legislative action. |
| DarrenR114 Feb 28, 2007 12:26 PM EDT |
I think we agree - but I'm not sure ... I'm SOOOO confused. Is your main complaint that it seems that the flimsiest of patents seem to be getting approved a lot more? If so - I agree. I don't believe "eliminate them" is a valid answer, because there's nothing for Congress to act on - the current law is supposed to prevent them from getting approved. Now, "Fix the law so inventors don't get patents on software inventions" is something to chew on - but may still be unnecessary: I don't know because I have only a small bit of direct experience with the patent process. What may be necessary may be as simple as gettting the PTO to hire some more application reviewers who have extensive IT experience so that the existing law may be more effectively administered. I think the first step is definitely getting Congress to at least start an inquiry as to why it seems there are so many "software inventions" (which is different from inventions that use software). The patent process does work for the most part - I think that what's happening is akin to the $600 hammers that get sold to the DoD. Anomalies that get a lot of publicity give the impression that the whole system is broken. So, now that leads us to the next question: Who wants to start the drive to get Congress to actually investigate the problem? |
| jimf Feb 28, 2007 1:20 PM EDT |
I think I'm being a little more expansive than you in what I see 'software' needs to cover, but otherwise, yes I agree with you. I think that 'anything' software needs to deal with copyright law 'not' patents. This probably means that we'll have to get rid of patents in that area by passing specific legislation (more laws :P ) to actually accomplish the goal. > Who wants to start the drive Oh boy... I don't even know where to start, and I suspect that there will be certain parties opposing that have more experience (and a lot more $) than we do. Or maybe this is just one of those days I'm feeling a little old to have to keep up with the revolution ;-) ... |
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