The problem with the patent system and pretty much every argument that Gene Quinn makes here, is that it is nearly impossible to determine who actually is first to innovate, but LEGALLY the first to apply is the one to benefit, regardless of all other variables. And then we leave it to the legal system to verify that a person “won the race” with wasted hours of litigation paperwork, and argument. Filing first does not imply that you thought of it first.

Just because a system allows something to happen, or even makes a definition for how something should happen, does not make it right. The letter of the law once wrote it illegal for slaves to leave their owners. Luckily the laws are changeable, and sometime in the future we will have a better solution than law we have currently.

With all due respect, if you think China is going to surpass us because we grant software patents you are completely and totally missing the boat.

Whether you ever want to admit it or not, the truth is that in the US those who moan about software patents give up and modify their behavior after reading the title and the Abstract of the patent, neither of which have anything to do with the exclusive rights granted. So through their ignorance of the law they are giving up and giving in based on their imagination, not based on fact or any reality.

Having taught many Chinese students I can say that based on my experience they are extremely dedicated, hard working and they never give up. They work however long it takes and do whatever is necessary to succeed and inform themselves. If the US loses to China it will be for that reason and the lazy programmers who moaned and gave up for absolutely no reason and allowed themselves to be victims of their imagination will be to blame. NOT software patents.

-Gene

The real winner of your argument is China. While the United States is fighting court cases, China will be using software to expand science, engineering, technology, and mathematics. China will overtake the US by the end of the decade.

I’ll come back in 10 years, and well finish our discussion.

“Those who are anti-software patent are simply pro copying.”

That is ridiculous and a bald-faced lie, on its face. Copyright law clearly prevents what you suggest, and as a software developer I have no desire to copy others work verbatum. However, if I want to create an application from scratch (which I have done many times over), I would like assurance that some troll won’t try and sue me for violating some ridiculous patent.

You have lost all credibility in my eyes, and I will never trust you to present a level headed argument again.

There are several patent patents that I know of immediately and others that I can’t recall and are difficult to find.

See US 6,574,645 for one example.

I realize that is not a fair argument because there is a vast difference in the quantitiy of patents in each field. Software by far has the largest number of patents filed which both demonstrates the need for software patents and the need for better examination. Because I work with patents daily, I understand that on any commercial method there are several thousand patents with art in most fields going back 50+ years. Software and hardware patents go back to the 60′s and some electrical components are much older. There is a lot of information out there that is frequently not used by inventors. As a software professional, patents may provide you a better view of the art than any literature or trade show brochure.

The trouble is, and this is more common with older patents, some patent attorneys obfuscate (hide) the true meaning of the invention to get broader claims for their clients. These broader claims may be so confusing that the inventor, the patent attorney, the examiner, and the public don’t understand what the true invention is. Alternatively, many inventors want their paten to cover more than they actually demonstrate with the invention. Instead of drafting a claim that covers a specific type of hedge fund transaction that uses a well thought out transaction algorithm, the draft a claim that reads on most transactions with the simplest version of the algorithm. Because the attorneys/agents then take out many limitations to ensure no one side-steps the claims, they end up reading on everything. In order to prevent this, there should be better patent examination and there should be an annotated public database of patent and other software methods.

I understand the task can be daunting at first, but if you do the search and review once for your field, you will have a pretty good picture of where the patents are and what they mean. There are always patents that you can’t find, but if you understand the field you start to understand the novelty of each patent. You will find that many of the “bad patents” are actually narrow patents that don’t block your methods. The rest you may have to think about but you can either design around or design within an existing expired patent.

There is a balance between cost of searches, size of business, danger of infringement and existence of competitors. A guy at home programming for open source probably shouldn’t worry about infringement. You can look briefly at various patents and ensure you’re not copying them by doing a very quick search on your own. It may help you understand the field and identify some alternative methods. A larger company should definitely pay for good searches along the way: patentability before development, freedom to operate before commercialization, and non-infringement if presented with a close patent.

There is a balance between patents and use, in the case of software patents, a pool might alleviate some of the problems and the more companies in the pool the better it would work. Talk one on one with a patent attorney to learn more about your options, costs, and likelihood of infringement and/or suit.

Mike

Would you care to write up your comment #100 into an article for the blog? I think it would be quite useful to use to jump start a new discussion.

We will probably never convince the anti-software patent folks, and they will never convince us, and that is fine. But it seems clear to me that patent attorneys know that not all software patents should be issued and a good many that have been shouldn’t have been because they are too vague and not enabled. Add onto that those that are likely not new and nonobvious and there is a problem no doubt. That, however, does not mean that ALL software patents are overly broad. Those that actually can satisfy the patentability requirements should be issued as patents.

If you are not up for it that is fine. I can write something at some point picking up directly on this line, but wanted to offer it to you.

Thanks.

-Gene

Why would anyone imagine that? What you suggest is clearly not new, so no patent would be able to issue. So your hypothetical is counter factual and contrary to reality. If you want to try and come up with a hypothetical that is realistic we can talk about it and explore, but to compare software that is useful, new, non-obvious and innovative to something that is not new and would be obvious is like comparing elephants and mice.

-Gene