Software Patents

Posted by $ WilliamShipley 8 years, 4 months ago to Technology
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From the white paper:

The patent system is in crisis. Patents—particularly software patents—have become a tool for intimidation and expensive litigation, chilling the very innovation the patent system was supposed to encourage.

This report highlights how, since the mid-1990s, software patents in particular have proven to hinder rather than support innovation. For example:

• Software patents tend to be vague and overbroad, and they often cover every solution to a problem, rather than a specific solution, and leave the hard work of making functioning, usable products to others.

• The US Patent and Trademark Office does a poor job of reviewing software patent applications. One major issue is the limited time spent locating and reviewing previous inventions or publications, known as “prior art.”

• The recent flood of software patents has led to a dramatic rise of “patent trolls,” entities that monetize patents by suing or threatening to sue businesses, usually without making or selling a product themselves. Patent trolls now make up a majority of patent litigation. Their common tactics of frivolous lawsuits and forced settlements place a tremendous cost on innovators, businesses, and end users.

• Companies feel pressured to engage in a patent arms race, acquiring broad software patents for defensive purposes. If a company fails, its patents often end up in the hands of bad actors such as patent trolls.

In my personal opinion, the concept behind patents is that by providing a monopoly we encourage development and the sharing of information. The reality, at least in the software world, is that patents are used to discourage development. No company develops a software product because they can patent it, they develop it to improve their position in the marketplace. They protect their products with copyright. The growing library of patent information does not represent a resource to programmers, it is neither organized for useful search nor written in the language of programmers. There is a vast amount of information available to programmers for easy searching. We do not need to encourage companies to publish their algorithms – which, if patented, we wouldn’t use anyway. Development times are simply too short to go into negotiations on licensing – you find another algorithm. The few patents on non-obvious things such as the LZW patent have spurred the development of other algorithms that were deliberately not patented.

Unlike some in the EFF and others, I am entirely in favor of protecting the intellectual property of software developers like myself. I think that copyright law is the best way to do this. It is quick and low cost to acquire, which is important in such a fast moving industry with so many startups, it protects your investment in coding and testing and it allows everyone to build on ideas so that we can all produce more robust products.

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  • Posted by $ sjatkins 8 years, 4 months ago
    As a 30+ year commercial software developer I completely despise software patents. Software algorithms have more in common with mathematical formulas than with physical inventions. Worse, it is extremely difficult to separate out a software "invention" from other more general purpose code. It is hard to make a software patent that is believably specific and yet general enough to be worth while. One is encouraged to make the broadest and thus the most limiting to other software developers claims possible.

    In software any competent engineer that comes up against a similar problem is likely to hit on a way of tackling it that technically runs afoul of some software patent or another. If one researchers all possible patents before proceeding then very little can be done or even thought about. Most development projects do not have the option legally or financially to negotiate licenses for everything that may have been patented.

    Large firms make patent exchange royalty free deals with other large firms. Smaller firms and especially the small software startups ignore software patents on the grounds that it will only be after the viability of their products is proven that there is any danger of being sued. Unfortunately patent trolls have made this less viable.

    On top of this the patent period is much too long for a field as fast moving as software engineering.

    Copyright, but not the very long lasting mess recently enacted, makes sense for software but not patents.
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    • Posted by $ CBJ 8 years, 4 months ago
      “All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.” -- Ayn Rand, The Nature of Government

      Software patents do not come close to meeting the above requirements.
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    • Posted by $ 8 years, 4 months ago
      You mention a point that has been rattling around in my head that the problem drives the solution.

      I'm not sure that the time limit on copyright is relevant. We need to keep improving and updating -- which is good for everyone.
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  • Posted by $ CBJ 8 years, 4 months ago
    In your view, should copyright protection extend to software that is generated by other software? Or should it be limited to software directly created by a human being? The U.S. Constitution's copyright clause refers specifically to "Authors and Inventors", which would appear to support the latter interpretation.
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    • Posted by $ 8 years, 4 months ago
      An interesting question and one that goes beyond software IP and into inventions in general. With the rise of AI, who owns the IP rights created by AI?

      Is it the people who designed the AI? Is it the people who own the AI system? Is it in the public domain since the AI system can be replicated and thus there is no unique Author or Inventor?

      Browsing around, I've seen a number of articles and the issue is still up in the air. I think that the consensus is heading toward no one.

      DB would certainly have a better feel for current law, particularly since much hardware design, especially at the chip level is heavily computer generated. Of course with higher performance AI, the connection between the programmer and the result becomes ever more tenuous.

      What say you, Mr. Halling?
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  • Posted by $ 8 years, 4 months ago
    I'm noticing a pattern emerging here and on the posts started by the Hallings:

    The people with hardware engineering backgrounds are saying that software design is just like hardware design and that it should be patented the same way.

    The people with software engineering backgrounds are saying that software design is not the same as hardware design and should be protected via copyright.

    Of course this is a pattern, I'm not claiming universal agreement with these positions.
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    • Posted by khalling 8 years, 4 months ago
      Yes the pattern I see is one of emotion with no scientific reasoning or backing and one of solid reasearch and evidence.
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      • Posted by $ 8 years, 4 months ago
        It's really sad that all you can do cast aspersions.

        It is an interesting and an important subject. And you should notice that pretty much all the software specialists are coming down on the one side.

        Perhaps the position of considering software like electronics isn't actually supported by the practitioners of the art.
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  • -1
    Posted by dbhalling 8 years, 4 months ago
    EFF the socialist organization
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    • Posted by $ 8 years, 4 months ago
      That would be Argumentum ad hominem – the evasion of the actual topic by directing an attack at your opponent (or in this case the organization that generated the report).

      I don't agree with everything they say and would be glad to have a reasoned discussion. This is a serious issue that, given the importance of software in our future, will be important to our society.

      I understand you feel that patents will allow the industry to grow, I think exactly the opposite. That hundreds of thousands of obvious concepts will be locked down and only large companies will be able to play. This has been a 'start in your garage industry', I don't want to see it become one that only those with millions can play.

      I'll be glad to discuss aspects of this with you, but I have to tell you I will not comment on threads started by you or your wife since you've repeatedly demonstrated the willingness to use the force of hiding my comments to silence me.

      I take some time to write a reasoned analysis, not just toss out a one line insult.

      I guarantee that I will not hide anything you write,
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