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Debunking the Software Patent “Pen and Paper Myth”


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
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Posted: April 14, 2010 @ 11:23 am
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What I refer to as the “pen and paper myth” has once again resurfaced on IPWatchdog.com in a comment.  The pen and paper myth goes like this: software should not be patentable because anything that can be done with pen and paper is not an invention and exclusive rights should not be given to any one person or entity.  Presumably the thought process here is that if you patent software you would prevent someone from engaging in the method using pen and paper.  Of course, that is not true, but why would a little thing like reality get in the way of making an otherwise absurd and provably incorrect statement?  Such provably wrong statements are rampant in the patent world today, particularly in light of what appears to be an all out media assault on technology and innovation that would make the persecutors of Galileo proud.

So just sit right back and I’ll tell a tale, a tale of a fateful trip, which if followed would result in far more than the wreckage of a tiny ship.  The tanking of the US economy is at stake, so take a sip of coffee, sugar up and stretch so you will be able to stay away and pay attention.  I know this is preaching to the choir for many, but for those who seemingly seek to remain clueless, if you actually pay attention you might learn something!

First, it is impossible not to recognize the all out assault on patents specifically and intellectual property rights more generally.  Regardless of what Judge Sweet says, thinks or writes, and regardless of the propaganda spewed by 60 Minutes and a veritable whose who of the so-called media elite, Myriad Genetics does not own you, gene patents do not give exclusive rights to anyone’s genes and the USPTO is not an evil enterprise where leaders stay awake at night trying to figure out ways to grant exclusive ownership to corporations over your internal organs.  Stop and think for a moment rather than jump off the cliff like lemmings!  Are you a method of isolating DNA?  NO!  You are a person.  It really is that simple!

Next, on to the software topic.  Is software equivalent to pen and paper?  It is almost absurd that I have to address this, but I do; over and over and over and over and… well you get the idea.  I can conclusively prove that software is not equivalent to pen and paper.  Go to IPWatchdog.com.  Right click on “View Source.”  Then print what opens.  Then close out of IPWatchdog.com.  Then place the paper you just printed right next to your keyboard.  When IPWatchdog.com does not miraculously open itself on your computer and display in the monitor then you should pretty conclusively prove to yourself that software is not equivalent to pen and paper.  For some staunch believers you might want to move the paper around, perhaps tape it over your monitor, maybe place it on top of the CPU.  Perhaps fold it, open your CD drive or DVD drive and place the paper on it as if it were a disk and close the tray.  Eventually even the most ardent anti-patent folks will have to come to the conclusion that no amount of manipulation of paper with text on it will result in the calling up of IPWatchdog.com.



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Now that we are all on the same page and realize that software is not equivalent to pen and paper, what in the name of Pete are those who say it is equivalent thinking?  Well, what they are trying to say is that if a process can be completed using pen and paper then there is no innovation and no patent should issue because if it does issue then everyone will be prevented from using pen and paper.  NO!  Read the patents, not just the title.  A patent is much more than a title, and much more than an Abstract on page 1.  In fact, the only thing that really matters when determining the right granted are the claims.  Software patents by their very nature are tied to a machine or some kind of a system and cannot operate outside the assistance of machine implementation.  You see, software runs on machines, not on pen and paper.

Going one step further, the reality is that engaging a process using pen and paper can sometimes take weeks, months, years or decades, when the use of a computer properly equipped with software can perform the task in seconds.  That kind of efficiency has always been recognized as innovative and worthy of a patent.  Whether you like it or not, that type of innovation has been patentable since 1790 and is exactly what Madison and Jefferson wanted to encourage.  This type of advancement is the march of innovation and specifically the goal of the Constitution.

Software is what makes the machine functional, and that as a matter of fact, law and reality means it is patentable.  A machine without software is just an overpriced paper weight.  A machine with appropriate software is a useful and increasingly critical tool.  Software is the engine that drives the machine and it is absurd to think for a minute that it cannot or should not be patentable.

There is at least some logical rationale to the pen and paper argument, but it has nothing to do with software.  The Bilski case pending before the Supreme Court relates to a pure business method; specifically one that is disassociated from any technological implementation.  It is a purely mental process.  Forget for a moment how Bilski would ever be able to tell whether anyone were infringing his purely mental process, he wouldn’t.  As a purely mental process it has nothing to do with software, yet the majority of the Federal Circuit sitting en banc issued a decision that attempted to kill pure business method patents by not aiming at pure business method patents but aiming at software in general.  In so doing they managed not to kill pure business methods, call into question the patentability of software, call into question the patentability of medical devices and diagnostic methods and pretty much take out US high-tech industry out behind the woodshed and shoot it in the head.

The Supreme Court will overrule the Bilski decision, of that I have no doubt.  They will dial it way back because the Federal Circuit decision didn’t actually deal with the case before the Court.  It was an opinion that had little or nothing to do with the invention in question, period.  Unfortunately, because of the extreme overreaching by the Federal Circuit in Bilski pure business methods, software, biotechnology and diagnostic methods were all lumped together as if they were one in the same.  Newsflash… they are not!  Another newsflash… practically everything can be characterized as a business method because the entire goal of the inventor and applicant is to obtain exclusive rights to somehow exploit in business.  So business methods are here to stay, although Bilski himself is likely out of luck.

The fact that there are individuals out there who would prefer to rely on pen and paper, taking years to accomplish simple tasks that computers running appropriate software can accomplish in seconds, shouldn’t mean software is not patentable.  Go ahead and refuse to use software if you want to rely on pen and paper.  Let the rest of us have software patents.  You will still be able to use your pen and paper if you like, perhaps moving to a remote part of the Pacific Northwest where you can simultaneously search for Bigfoot (or Sasquatch if you prefer) while you attempt to write out lines of computer code and instructions that will spontaneously compile and run without the assistance of any kind of machine.  Wait… come to think of that… spontaneous compiling and running of software outside of a machine oriented architecture would be patentable!  Maybe I should get in touch with my inner troll and file a patent application or two!

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Posted in: Anti-patent Nonsense, Business Methods, Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Patents, Software, Software Patent Basics

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

139 comments
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  1. This “pen and paper” argument is a obvious strawman, and I don’t think you do a very good job of defeating it anyway. Your “print out the HTML source code” test is laughable. There are no patents on the basic rendering of HTML source into a viewable web page. If there was, this conversation would not be happening right now because these patents would make it expensive, if not impossible to publish and comment on posts. The real reason software patents are bad is that the USPTO cannot afford to hire (or maybe even thinks it is not in their best interest to hire) examiners that would actually be qualified and competent to judge weather a software patent is new and non-obvious. There are a number of high-profile software engineers who are against software patents. http://redmonk.com/sogrady/2010/03/19/software-patents/

    60 Minutes did do a great job on demonizing Myriad Genetics. But let’s address the real issue with that case. It is false to believe that there would be no investments in biotech without the ability to pay back the investors in crazy multiples. Evidence lies with organizations that accept donations for the research of cancer and other diseases. And Jonas Salk was not a capitalist maximalist seeking to profit from sick children. Yes, there was a flood of biotech investments after GE’s plasmids patent, but these investors had bought what patent lawyers were selling: patent everything you can to protect you IP and investors will come. And the other issue with Myriad is that they prevent others, even schools and non-profits, from building on their work to make yet more life saving discoveries, all in the name of a buck.

    I understand you must defend your profession, but the world is better off without software patents, genetic patents, and business method patents.

  2. Gene,

    A good set of arguments. At the risk of gilding the lily, could I suggest an expansion? While you focused on the software that most people are familiar with and who’s output is viewed on a display, a wide range of software goes beyond that. Consider the software in a pacemaker that shocks the heart out of arrythmia, or the software that lands the space shuttle or the software that runs industrial plants and opens/shuts valves as approriate so that there are no “uncontained expansions”. All of these make the pencil-and-paper argument inane.

    It even includes the fly-by-wire programs that controls (?) acceleration of cars when you step on the gas pedal. But let’s leave that topic for another day, shall we?

    John

  3. -Gene

    I actually have a small beef with this one. I think that we both agree that properly issued software patents are a good thing, and bad software patents need to be dealt with, but I don’t like the pen and paper argument, and here is why. First, lets look at the ipwatchdog.com example. There is some javascript there, which requires computation, but for the most part, the source for a web page is not executable code, but formatting instructions for the browser. Even if you include the javascript, and any code running on the server, a person could execute those instructions and draw pictures to match the formatting by parsing those documents in their head or on paper and draw an image that looks like ipwatchdog.com would in a browser, short the images and advertising.

    Of course, it doesn’t matter because ipwatchdog.com isn’t patented. You can’t patent websites, you just get copyright on their content. You can get patents on software that runs your website, but the contents of web pages in general don’t contain patentable code. If you did have a patent on some code that was written in javascript, vbscript, or some other script in a webpage, then it would cover more than just the browser ready versions.

    The real issue here is about the patentability of processes and what is required to make a process patentable? You are correct that they are usually tied to a particular machine, which means that it wouldn’t cover a pen and paper implementation, no matter how long it would take to complete, but all software can be computed by hand on pen and paper and does not require a machine in order to be executed. It might not have the end result required if you don’t have the proper mechanical processes attached to it, but it could be done. I could have a giant 800 x 600 grid of lite brite and manually fill in pixels if I wanted to, or color in boxes with colored pencils or crayons.

    Yes, you are right that software is required to make a computer function, but the real innovation there is the computer itself, not the program. The program is only innovative because of the process it implements and the ability of the computer to execute it faster than could be done by hand. I think we are both in agreement that old processes shouldn’t be given new patents just because somebody converts them to code?

    -John

    What you fail to realize in your examples, is that they are complete packages. The software by itself in those devices does nothing without the innovations of the hardware, the same way regular software is useless without the computer. A program does not shock a patients heart, the pacemaker does. The software aids it in doing that task on time, and any patent on that software should have the caveat that it be tied to that pacemaker, as Gene pointed out when he mentioned that programs are tied to machines.

    Just because the machine the software runs can do amazing things doesn’t mean anything when considering whether or not it can be executed on paper, because all software can, the results just don’t mean anything if it isn’t tied to a particular machine, which is the whole point. A point which your examples make me think you miss.

  4. Nick-

    Perhaps you don’t really understand the meaning of straw man. It is not a straw man if it is what is being said by those who don’t like patents.

    I agree it is ridiculous. At least we agree on that. Obviously if simple HTML and php can’t run on paper than innovative software can’t.

    In terms gene patents, you obviously didn’t watch 60 minutes. You really should read the patents, learn the science involved and read the 1952 legislative history and Supreme Court cases on patentable subject matter.

    I am not one defending the profession, just pointing out the reality you and others choose to ignore do to your ideology.

    -Gene

  5. Gene –
    I think the lesson could be taught without the negativity. A simple explanation that software is the next innovative frontier. As we get away from the individual hardware machines and develop more processes for virtual machines and cloud computing, our hardware becomes irrelevant and the process becomes relevant. Apps are currently tools, but as they are developed they will accomplish more dramatic and innovative tasks. The main argument against software patents is that programmers still want all programming to be free to use. They want to be able to write without hesitation anything they feel appropriate even if they are copying another persons processes. Admittedly software patent review is shoddy at best and many issued patents may be found obvious, especially in light of KSR and with a better prior art review. I would not wield any software patents like a hammer.

    Nick – How many universities developed working drugs with FDA approval prior to the passage of Hatch-Waxman (1984)? Please get back to me with the uber university that was actually equipped to develop a drug through FDA approval and market that drug. You did know that the BRCA gene was discovered by research at the Cancer Institute and was licensed to Myriad? Thus some of the money earned helps finance further cancer research.

    POP – Ebony and ivory… Computer hardware and software make a family. The software wouldn’t run very fast on an abicus and the hardware would be boring without good software. Thus they complement each other and innovations occur in one, the other, or both that make the system better.

    The Myriad case should not be decided on feelings. I am sorry if you wanted a second opinion on your BRCA test, or can’t afford a BRCA screen. University research continues on BRCA, in fact several papers published last month. Myriad prevented labs that were offering cut -rate BRCA analysis with cease and desist orders (No, I haven’t reviewed them or looked into the practices of those that received letters). I do know that academic research continues though. Go to NCBI and look up the latest BRCA research.

    Mike

    http://www.fdli.org/pubs/Journal%20Online/54_2/art2.pdf

  6. POP-

    On the road, so can’t do a long reply. I think we agree on a lot, but I disagree that the only innovation is in the computer. I also disagree that all software can be computed by pen and paper, but I do hear you.

    Take for example the iPhone (on which I type this response). What makes it cool are the apps, which are software. One great app us the flashlight app that turns the device into a flashlight (white screen). That could not be computed on paper. The goal is light. Ficus on the function provided. Yes, the program can be written on paper and it’s workability proved, but the functional use requires the app turn the iPhone into a flashlight.

    More later…

    Mike-

    Point taken about the negativity, but it’s a style choice to flesh out the issues, not unlike John Stewart or Bill O’Reilly. After all, according to some on another patent blog I am the FOX News of patents.

    -Gene

  7. -Gene

    I think we are pretty much in agreement here, except for one thing. You said the flashlight app can’t be computed on paper, except that it can. All computers are reducible to Boolean operations which can be done on paper. It is only because that program is being run on a computer that has a display which emits light, that it actually makes it a flashlight. One skill that most SysAdmins obtain pretty quickly is the ability to funnel output into different pipes so that data goes somewhere other than the standard display (the screen). If you replaced the display on your iPhone with one that doesn’t emit light, it would still work, but wouldn’t function as a flashlight anymore.

    It is only when you combine the algorithm and the iPhone that you have an invention. The app + iPhone = innovation. It has to be taken as a complete package. The algorithm itself is not inherently a flashlight app and only becomes one when executed on a device capable of emitting light. We have all used computers where the monitor went bad and you hear that internal speaker beep. In that case, none of the usual display is going to the screen, but all the algorithms on that computer will still compute just fine. Or, imagine if your iPhone screen broke? The flashlight app will still execute just fine, but the phone wont be a flashlight anymore.

    I guess what I am basically trying to say is that any algorithm can be executed on paper, but a lot of them are only useful when executed on a specific device, and so that device needs to be included as part of the patent, in my opinion. I think we agree on this point.

  8. Pop-

    Sitting in traffic in Pittsburgh – aaarggg.

    Not sure about the paper thing still, but minor point. We are in major agreement. You have given me an insight. More tomorrow.

    -Gene

  9. I agree that perhaps software could be patentable subject matter. However, after some serious thought and looking at some empirical evidence, the granting of patent rights to software and related inventions fail to provide incentives to innovation.

    On March 4, 2008, Jim Bessen presented a summary of his book titled “Patent Failure” at the Berkman Center Luncheon Series at Harvard. The audio (MP3 format) contains the entire presentation (http://tinyurl.com/y4rjox4). I highly recommend a listen. Jim and his co-author of his book, Michael Meurer, present some compelling arguments against the continuation of the current U.S. patent system to cover software.

  10. “It is only when you combine the algorithm and the iPhone that you have an invention.”

    Your statement is incomplete. It would be better stated as “… that you have an [enabled] invention.” However, like all good patent attorneys, we know there is a difference between 112, first paragraph (i.e., enablement and the specification) and 112, second paragraph (i.e., distinguishing and the claims).

    Put simply, the claims do not have to enable the invention. This point is too many times lost on both practitioner and examiner alike. They seem to want to include limitations that although may be needed to enable an invention are not necessary to distinguish the invention over the prior art. Any computing device needs a power supply, but you don’t have to recite a power supply when claiming a computing device. Similarly, you don’t have to recite the algorithm + iPhone when just the algorithm is enough to distinguish the invention over the prior art.

    “I guess what I am basically trying to say is that any algorithm can be executed on paper.”
    However, of the hundreds of software patent applications” (I put it in quotes because there is really no such thing) I deal with, none involve solely algorithms — there is almost always a data structure/device that is being manipulated/used. Properly drafted “software” claims should easily pass muster, even under the Federal Circuit’s Bilski test.

  11. Please defeat this one (TRIPS art 10):

    “Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”

    And this one:

    “TRIPSart13: Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.”

    Software patents undermine the legititmate interests of the copyright holder.

    Can you argue against that?

  12. About the algorithm of the “addition”, do you agree that it is patentable subject matter (101 test) if it is implemented in a computer?

    I am not talking here about other tests here, like obviousness and al.

    Look, the addition of 2 numbers is producing a nice technical effect inside the computer, so it produces a technical effect.

  13. Hey, I think we’re winning. (a) the only people still arguing in favour of software patents are the lawyers who make their living from them. (b) they perceive themselves as under threat. (c) to argue their case, they have to resort to crazy lines of reasoning, and to insulting the intelligence of their opponents by calling them “clueless” and their arguments “absurd”.

    Forget the status quo for a moment. Imagine a world without patents. Now prove to me that it is in society’s best interests to dictate that once one person has written a particular program, no-one else is allowed to write the same program, even if they came up with it independently with no knowledge of the previous activity. Because that is happening all the time, and there is no way to prevent it happening, and it does no harm to society that it happens.

  14. Another “Flat Earth” society debate about software. Under what rock do these “no patent for software invention” people reside; it must be a big big rock. I guess nothing should really be patentable. After all, a drug is the mere re-arrangement of atoms into different bonds. A machine is the mere organization of matter (already known) into a different structure. It could all be done by hand. A method, of any sort, is a series of known lesser steps. Ho hum. In truth, any invention is a mere re-do of what is known into something unknown. It has to be. So, software and the methods enabled thereby should not be patentable because they are algorithms being performed by a known machine. But for the machine, nothing would happen. I can assure you, but for the software, nothing would happen either. IBM shared these views (software is trivial) once upon a time, before MS ruled the world.

    Gene: I believe this crowd to be impenetrably clueless when their ideology collides with reality. Flat earth indeed.

  15. It seems to me that the discussion of software inventions reflects a general linguistic bias that limits defining a machine as being tangible. Machine, however, has had an intangible connotation for a long time. Take, for example, the Finite-state machine (FSM). In computer science, the FSM has been officially in use at least since Noam Chomsky published his “Syntactic Structures” in 1957. Processes can of course be intangible machines subject to all the novelty and prior art tests thinkable and are, taken as such, very much patentable.

    Until attorneys and the courts start discussing linguistic issues, e.g., tantible vs. intangible machines, I don’t see any resolution on the horizon, not withstanding the upcoming Bilski and the Supreme Court decision. Without that, we will all be subjected to endless ruminations based on the common assumption that software and the (tangible) machine are different entities. They are both one integrated machine and should be patent-tested as such.

  16. -Just Visiting

    I understand what you are saying, but my arguments were coming from section 101 that states that it must be “new and useful.” I don’t expect every component to be listed, or even specific components to the level of the brand and model of a phone, however, for the flashlight app that Gene brought up to be useful, it has to be connected to a light emitting display of some kind, which should be included, because that is the only way to make it useful in the context in which it is being presented. You can’t get a patent for things that don’t work.

    I agree with you that most “software” patents are not solely made up of algorithms, in fact, most of the ones I have looked at don’t have any algorithms in them at all! In some sense the whole debate about algorithms is moot because they don’t seem to ever appear in a patent claim. Data structures are really just part of the algorithm, so they aren’t separate, but the devices themselves are. Like I said before, this whole debate is really about processes, which is all software really is.

    There are, however, some processes which are only useful when enabled by a computer, and that I would say, is a pretty good description of a software patent. Not all software processes are only useful when enabled by a computer though, and those processes which were useful before being executed on a computer were clearly already enabled. It might make them faster, but the use of a computer to speed up execution time is not a new invention.

  17. I truly feel for the ‘no software patent’ crowd and understand their frustration. IBM files 3000+ applications each year, many of them 95% similar with only one paragraph of new text that isn’t novel. They get patents issued by sheer volume, not quality. The key to improving the system is not to rail against software patents but to strive for a better examination. The greatest inventions to come will be software inventions, they won’t be tied to a specific machine but instead will be in the clouds somewhere and they will achieve things we’ve never seen before. The Sci-Fi geek in me turns straight to the Star Trek(r) transporter, that is a signal transported from one location to another and would involve great improvements in software and manipulation of existing molecules, yet may not in the end require a lot of hardware (magnets and a very powerful computer to map millions of individual molecules?). The invention in the end should be enabled (describe in the spec how it works with some hardware) and novel (claim the invention so that POSITA knows what is claimed and new).

    We all know good software claims and bad software claims when we see them. As practitioners we should strive for clarity in the patents we draft and the claims we prosecute. The old paradigm of hiding the ball, drafting claims that are tangentially related to the invention, making deliberately vague arguments, and getting overly-broad claims issued probably won’t get a patent that stands up to litigation. I have made a concious effort to educate my inventors on the importance of drafting around prior art and not hiding our heads in the sand. Some patent practitioners and inventors still cling to the old ways, their omnibus claims should not issue and examination NEEDS to improve. We wouldn’t be having this debate if the issued software patents were better examined (Note: I am not blaming the examiners, I instead blame the lack of a good prior art software and/or business method database).

  18. I find it interesting to read the “most popular” blog and the railing against Gene (as EG put it – jealousy?) in comparison to the professional (mostly) debates on this blog. It seems that clamping down on the profane and downright incorrect (6) pronouncements earns the enmity of the “vocal” crowd, but I find the willingness (pop, JV) to actually listen more invigorating.

    Thank you all.

  19. Michael Kay-

    You can think you are winning all you want, but that would be to ignore facts, law and logic. If it helps you get out of bed in the morning though, go for it!

    You want those who support patents to “prove” to you the value of patents. Why don’t YOU prove to us your position? We have all the facts, logic and law on our side, so the burden really needs to be on you. All you have to do is look around the globe and where there are no patent rights or weak patent rights there is the absence of economic activity. All you have to do is ask entrepreneurs and small businesses how impossible it is to attract investors and capital necessary to expand and create jobs without patents. All you have to do is look at the free riders that take whatever they can when there are no protections. All you have to do is study economics even just a little to know that the producer has to charge a premium in order to recoup the cost of production, which is not possible when copying can happen instantly.

    So go ahead and YOU prove your case. I have repeated set out the case for patents and it is getting old, tired and ridiculous for those of you who don’t like patents to simply provide no substance, no analysis and say “you prove it.”

    By the way, we don’t have to imagine a world without patents. It exists in every third-world country on the planet. Is that what you want for the US?

    -Gene

  20. John-

    The FES (flat earth society) is definitely living under a rock. The hostility toward property rights, capitalism and economic development is astonishing and telling. I guess jobs are just supposed to create themselves and investors should be mandated to invest to spur economic activity regardless of the likelihood of success. Isn’t that sort of what got us into this recession in the first place? Investment without rationale expectation of success?

    Personally, it warms my heart to know that there are so many anti-software patent people out there. The only ones who care are those who are developing the software, which means it will be all the easier for my clients to succeed and put those without patents out of business. There are real opportunities to dominate in the software space and those who are foolish enough to forego patents out of ideology deserve to be dominated in the marketplace.

    Cheers.

    -Gene

  21. Free love man! We should all share, there should be no money, no god, no hunger. Software is the hemp clothing of the modern world, dude. (/|\)

    IF we left innovation in the hands of open innovation, we’d all be sitting in front of greenscreens, sharing our unix code and lovin our punch cards. True innovation typically, but not always, comes from paid research and development programs. Everything from sound, graphics, animation, compression, encryption and speed have been improved by paid research into software development. The fact that you want it to be free does not make it free. IF you develop a business around a patented innovation whether you developed it independently or not you are an infringer. Many of the free software advocates do not develop independently, they instead enjoy copying. They see some innovation that makes life easy, they want to use it without consequence. They’ll be fine if they keep it to themselves not because it’s legal, but because they do not impact the business of the original developer. BUT if you start your own company based on others innovations you can and will be sued (or you can limit your customer base to Nigeria, North Korea and Venezuela). You cannot change the mind of those that don’t listen.

    IF you are listening, I’ll summarize briefly:
    Copyright only protects code (direct copying of a CD).
    Patents protect processes (A + B -> C).
    Software is a process (Input + manipulation -> output).
    The next great innovations will be in software.
    R&D is required for innovation.
    Money is required for good R&D.
    Patents protect monetary investment in innovation.
    Software patents are currently hindered by poor examination and overly zealous companies (IBM, MS, etc.).
    You can rail against the corporate world, but you still have to get a job to feed your family.
    Good luck with life, if you are still punching away in unix in front of a green screen with a punchcard at least you don’t have a family to feed.

  22. John M,

    Re: “On March 4, 2008, Jim Bessen presented a summary of his book titled “Patent Failure” at the Berkman Center Luncheon Series at Harvard. The audio (MP3 format) contains the entire presentation (http://tinyurl.com/y4rjox4). ”

    Some of his arguments seem dated. 1) Submarine patents are no longer available, you only have 20 years from the priority date, not 17 years from issue. 2) Claims are becoming more defined because the field is developing. 3) The law is improving written description and enablement requirements are becoming larger hurdles for software. 4) Unreasonable royalties, payments for lost cases, seem to be getting more in line with the type and level of infringement.

  23. P.S. It was a really good talk and the information very useful.

  24. >Why don’t YOU prove to us your position?

    Wow, amazing, you not only believe this stuff, you believe it so passionately you think anyone who doesn’t is an idiot.

    To answer your specific question, the burden of proof should be on those who want to restrict freedom, not on those who want to allow it. Patent monopolies are a restriction of freedom and a restriction of the free market.

    I run a small innovative software company and I know that my less innovative competitors can flatten me any day they choose merely by threatening a patent infringement suit. I am innovating despite the risk created by the patent system. It offers me no protection and no incentive whatsoever. I can’t get insurance against this risk: all professional liability policies exclude it.

  25. Oh, by the way, I’m in the UK where patenting software is officially not allowed. This doesn’t help me much because 60% of my market is in the US. The way I see it, most of the interesting action in the software business these days is in Europe and Asia, not in the US. Programmers in the US can’t write a line of code any more without consulting a lawyer, so this isn’t surprising.

  26. -Michael Kay

    I feel your anxiety when it comes to worrying about software patents lurking round the corner. Everybody hears stories about people getting screwed, or reads about ridiculous software patents and thinks, can’t this happen to me? However, the real problem is bad patents, not all patents. I used to be in your camp, and thought that throwing out all software patents was the only solution, but I have changed my mind after looking into the issues more and more.

    If your competitor has a good software patent, then they were innovating, and you are coming after them, and therefor are not innovating. If the software patent is bad, you can try to get it thrown out, or maybe it won’t hold up in court, even though it will still cost you, but the real solution is to reduce the bad patents, not throw out all of them.

    I do agree however that the amount of work and potential cost of making sure you inside the patent coloring lines can be prohibitively expensive for the small business or start-up.

  27. Fundamental problem:
    You have not invested to protect your innovation so A) you either aren’t innovative enough or B) you prefer to bury your head rather than face the facts. Make sure you document your innovation in a public forum with a historical record if you would like to keep you innovation in the open. Trade secrets can be used and a later patent filed if they are kept out of the public sector. You advocate open source, you should post all of your code for all to use. The only way to protect yourself from later developed patents.

    If 60% of your market is in the US, then you either need to contribute your innovation to open source or risk losing 60% of your business.

  28. Some misunderstanding here:

    >If your competitor has a good software patent, then they were innovating, and you are coming after them, and therefore are not innovating.

    The fact that my software does X and someone else has done X does not mean that my software is not innovative. X might be completely irrelevant to the aspects of my product that make it innovative.

    >You have not invested to protect your innovation

    I’m not worried about my competitors trying to reproduce what I have done. I am confident in my ability to compete by continued innovation. I am worried about being sued for doing something that I and most other programmers would consider obvious but some idiot judge in Texas has decided only one programmer in the world should be allowed to do.

  29. If the programmer did it first and it is novel, the programmer filed for a patent, and the patent claims are valid, then yes you should worry. If X isn’t that innovative then remove X, if X is simply then design Y that does something similar to X but is outside of the claims. Otherwise if you use X, if it is required for your product, then you are copying X. You need to pay for a license or not use X. IF you don’t know about the patent to X, you can continue to operate with X until the patent is brought to your attention. You can revise or remove X at that point.

    I agree that there are bad software patents out there now. They need to improve examination. IF you get sued for X and you pull out an article or other public use that occurred before the patent was filed, then you can invalidate the patent. IF X wasn’t innovative then there should be use prior to the patent filing. IF you can’t find prior art, then don’t use X.

  30. “Imagine a world without patents. Now prove to me that it is in society’s best interests to dictate that once one person has written a particular program, no-one else is allowed to write the same program, even if they came up with it independently with no knowledge of the previous activity. Because that is happening all the time, and there is no way to prevent it happening, and it does no harm to society that it happens.”

    In that world, I imagine a world where nobody wants to be the best innovator. Instead, they want to be the best copier. Why sweat the hard stuff when you can copy it from somebody else.

    If a world without patents would be so great, why haven’t other countries ditched their patent systems?

  31. “In some sense the whole debate about algorithms is moot because they don’t seem to ever appear in a patent claim.”

    Grasshopper — you are learning.

    “those processes which were useful before being executed on a computer were clearly already enabled. It might make them faster, but the use of a computer to speed up execution time is not a new invention.”
    Those should easily be dealt with under 103 — no need to bring 101 into the mix.

  32. Twitter recently announced some “official twitter apps” and other plans knocking the wind out of some third party startups that built apps on twitter’s platform. Not the first time startups have been blindsided by larger startups that co-opt their innovations or take sides with a competitor. Might cause some anti-patent developers to rethink their anti-patent position. If you have an innovative app or website, why wouldn’t you want to protect it with a patent to provide some leverage?

  33. >Why sweat the hard stuff when you can copy it from somebody else

    Copying is prevented by copyright. Patents also prevent independent invention – something that happens all the time in software, because programmers innovate every day of their lives. Unless the lawyers stop them.

  34. Michael Kay says: “I am worried about being sued for doing something that I and most other programmers would consider obvious…”

    Then you are reckless and careless by not seeking a patent. If you have no patents you are at target and will get shot. If someone comes after you then you need to have counterclaims, it is that simple.

    Michael Kay says: “The fact that my software does X and someone else has done X does not mean that my software is not innovative.”

    Actually, yes it does. Me too or second comers are not innovators.

  35. “I run a small innovative software company and I know that my less innovative competitors can flatten me any day they choose merely by threatening a patent infringement suit.”

    Really? If your less innovative competitors have patents to assert, that means they have performed some type of innovation. If you have no patents, perhaps you really haven’t been doing any innovation. Of course, if you had a patent portfolio of 5, 10, 50 patents, they next time somebody in your business space comes knocking on your door, claiming that you are infringing their patents, you show them how they are infringing their patents — what happens next is typically an exchange of cash and a cross-licensing agreement and everybody gets back to work.

    Moaning about software patents isn’t going to save your business. There is a <5% chance that software-related patents will be invalidated in our liftetimes. Too much history, too much money, too much momentum involved to have any great changes. If you want to win in business you have to learn the rules of the game and then play it hard. If you don't, somebody playing it harder than you is going to run you over. FYI — you can take that advice and apply it to any aspect of your business.

    Finally, there are relatively easy ways to get around threats of patent infringement based upon dubious patents — it is called reexamination — a relatively cheap process.

  36. @jb
    Twitter allowed and encouraged people to build third-party apps. This made Twitter more valuable, and the app developers were allowed to take whatever gains they could while they could. If things were patented, not of this would be allowed to happen, and twitter would be less useful. Just because someone figures out how to do something novel does not mean it should have a patent. And technology moves fast, so there is no reason this novel software needs to “be protected,” assuming this protection means that it can be used for a while. So no, I don’t see any anti-patent developers re-thinking their positions. They know this comes with the territory.

    @Gene
    Today, the things you can do with software are pretty obvious to good developers. And that fact that two developers can independently come up with similar solutions without ever seeing each other’s work is the perfect test case for obviousness. When this happens, the methods are obvious and do not deserve a patent.

    @just visiting
    “In that world, I imagine a world where nobody wants to be the best innovator.” You are obviously not an innovator, because I can tell you that there is plenty of innovation going on in the open source software space where people are coming up with great ideas all of the time. It is not the “invention” they sell, it is the execution and implementation of the solution that makes the money. To borrow from a proverb: “You can teach a man to fish, but what if he can’t figure it out, or does not have time to learn? You can sell him a fish.”

  37. Nick, Twitter isn’t claiming patent infringement. They are copying anyone who has a useful app but no patent. They’re basically saying, “we like your idea, we’re taking it.” IF the app creator has no patent then they have no recourse. The app is public domain and twitter will make any money off of the app (advertising, licensing or sales of the app). So if Nick developed NickApp and made 99 cents each time it was downloaded, then Nick would be happy. If Nick didn’t get a patent, Twitter said thanks, but now I want to make this app available so I am copying it. NickApp does X, Twitter writes XApp to do X, Twitter makes 5 cents advertising through X, Nick makes no money. Nick is not happy.

  38. @Mike
    With the pace of innovation today, your scenario is just the way things are. Developers who are making apps on an extremely young platform know things can change at any moment, or that the owner of the platform can co-opt their ideas, and they accept that risk. The good developers are making apps on multiple platforms anyway, so they can move on to the next opportunity.

  39. @Michael Kay “The fact that my software does X and someone else has done X does not mean that my software is not innovative.”

    @Gene Actually, yes it does. Me too or second comers are not innovators.

    I’m appalled, but not really surprised, that as a lawyer your understanding of logic is so weak. When a programmer makes logical errors like this, the software fails.

    Let’s explain it like this. My software has 1000 functions. 17 of them are things that no-one has ever done before. 3 of them are things that unknown to me, someone else has patented and I reinvented independently. I claim my software is innovative. I also claim that if the patent system gets in the way of this software being successful, this is evidence that the patent system is inhibiting innovation to the detriment of economic progress.

    You say I should protect myself by filing my own patents. Where’s the logic in that? Microsoft have zillions of patents, but that didn’t stop some tin-pot company from suing them for trillions for an obvious idea that they invented independently and infringed unknowingly. Besides, I live and work in a country where (quite rightly) you can’t get software patents.

  40. Nick, I agree with you that most apps are obvious and don’t deserve patents. I believe most apps don’t have any patents right now either. The Twitter incident is an example of why some patents may be of value for INNOVATIVE software. IF a more innovative app than “flashlight” required money and time to develop, then that would need patent protection. The more innovative the software the more likely people are to copy it. The music recognition software may have taken lots of time and money to develop, voice recognition is competitive, difficult and constantly evolving. Other innovations are out there that may be even more relevant, life-saving (medical) or productive that do deserve patent recognition. The “no patents for software” stance throws the baby out with the water. If their are no software patents, you can throw out all independent development. Microsoft will snatch up all programs it likes, deliver them with MS, and screw any new companies from entering the market. That’s why IBM, MS, etc. file thousands of patents yet argue against them. They are some of the biggest offenders to software patents. Additionally, a good software database, a dated, historically accurate open source database of existing code would protect against bad patents. Tie each software patent to code that existed before it, that anticipates the language of the claims and you have the solution to bad patents.

    CREATE A DATABASE PRIOR ART CODE TO KILL BAD SOFTWARE PATENTS. Annotate the database with date in public use, history, outline of code (A + B -> X) patents it invalidates.

  41. -Michael Kay

    “Let’s explain it like this. My software has 1000 functions. 17 of them are things that no-one has ever done before. 3 of them are things that unknown to me, someone else has patented and I reinvented independently. I claim my software is innovative. I also claim that if the patent system gets in the way of this software being successful, this is evidence that the patent system is inhibiting innovation to the detriment of economic progress.”

    What you don’t seem to understand is that people don’t patent functions, or methods, or procedures, or whatever you want to call them. Those are all words the describe code, which is protected under copyright. What software patents protect is processes, which can be expressed through code. In order to patent those processes, they should be new, non obvious, and useful. Does that mean that they always are? Hell no, and that is the biggest problem we are having right now, but if somebody does come up with a process that is new, non-obvious, and useful, and you are using several of them in your program, then you might have to yield to that.

    Because so many different processes are combined to produce one product in software, does it make sense economically? I don’t know. Does the investment dollars and research time that is generated by patents outweigh the costs in such a complex market as software? I don’t know. It is hard to say since most people agree the system isn’t working right now.

  42. Michael Kay, I explained – if you don’t know about 3 functions that are patented then you don’t knowingly infringed. If presented with a patent to function 276, then you can revise function 276 to avoid patent infringement. Or you may present your patent to the process of steps [(1000-17) -> 1000] for cross-licensing.

    Remarkably, the tin-pot company that sued MS for trillions (i4i) developed software for MS. MS saw their proposal, copied their proposal, used their research, and incorporated it into MS Word without paying 1 dime. MS intentionally stole from i4i which is why the award was so high. I agree that every case is not so cut-and-dry. The one-click stuff, really? Well it is easily designed around. I don’t know why people don’t read the entire claim properly.

  43. >What you don’t seem to understand is that people don’t patent functions, or methods, or procedures, or whatever you want to call them. Those are all words the describe code, which is protected under copyright. What software patents protect is processes, which can be expressed through code.

    Another of the problems, of course, is that lawyers and programmers use the same words to mean different things, which means we have great difficulty understanding one another. I think that your “process” is what I meant by my “function”, and is quite different from the programmer’s use of the word “process”. I certainly wasn’t using the word “function” in the sense of a fragment of code, and I don’t think you are using “process” in the sense of a thread of execution! Of course, the fact that our concepts are so abstract is another reason why patenting software is bad – it is impossible, realistically, to determine whether two ideas are equivalent when both are sufficiently abstract; it’s also impossible to determine whether an idea is off limits when it might have been described in the patent databases using completely different terminology.

  44. Michael Kay, again you are right – in a way. A process in patent terms is another word for method ( A + B -> C). In software sense, this would be the overall function (not mathematical – instead output) of the software. Where people are off is the idea that copyright protects the software. Copyright protects the code – strictly the letter of the code. By definition copyright only protects the code. This protects against software piracy, a major concern of MS and other software producers. There is no question about what copyright protects, it is clearly defined, and it only protects against direct copying (Copy program A from harddrive C:\ to disc D:\).

    It does not protect the overall program from re-engineering by our friends at MS. MS sees Netscape, MS develops Explorer. What happened to Netscape? Could they have stayed more relevant? Would patents have helped? Did they have patents? MS copied Netscape, flat out developed a internet browser 99.9% identical to netscape. Name 1 product that MS developed de novo. Good software patents protect small companies from goliaths like MS. Most of the companies being attacked by bad software patents are the big guys. But bad software needs to go.

  45. “Copying is prevented by copyright. Patents also prevent independent invention – something that happens all the time in software, because programmers innovate every day of their lives. Unless the lawyers stop them.”

    Word-for-word copying in prevented by copyright. Copyrights can be EASILY designed around. Anybody who relies upon copyright to protect their software is looking for a big disappointment.

    Independent invention happens in a lot of other fields as well. However, an “independent invention” would simply be the exception that swallowed the rule – since everybody would claim independent invention.

    What is to prevent somebody from coming into your office and stealing all of your computers and servers? hmmmm …. let me think about it for a minute …. hmmmm …. oh yeah, it is the law (i.e., as applied by the lawyers). Those damn layers – they stop all of the fun.

    FYI – programmers don’t innovate every day of their lives. Most of them use the same tools as to similar problems to achieve similar results. Most of what gets done on a daily basis isn’t patentable and probably is covered by anybody’s patent.

    “I claim my software is innovative. I also claim that if the patent system gets in the way of this software being successful, this is evidence that the patent system is inhibiting innovation to the detriment of economic progress.”
    Property rights, no matter the kind, inhibit economic progress in one way or another. To take my example from above, your property rights to your server and computers inhibit my ability to resell those servers and computers to someone who could put them to better use. I would love to build a nice surf shack on Miami Beach, however, people already own the property I want to build on – sucks for me, but that is the nature of almost all legal rights.

  46. “You are obviously not an innovator, because I can tell you that there is plenty of innovation going on in the open source software space where people are coming up with great ideas all of the time”
    Ahhh … another believer in communism. It took generations before communism died in most places because it is such an idyllic concept that those were part of it wanted to make work. Ultimately, people want to be recognized (monetarily) for their hard work and ideas, and that isn’t going to happen with open source.

    ““You can teach a man to fish, but what if he can’t figure it out, or does not have time to learn? You can sell him a fish.”
    The fish sellers want to be able to tap into an unlimited, no-cost supply of fresh fish. Fortunately, there are enough volunteers (err .. suckers) that are more than willing to supply that fish. Ultimately, IMHO, most fisherman (who are volunteering their fish) are going to wise up and realize that what they do has value.

  47. “Ahhh … another believer in communism.”
    Ah, we have resorted to name calling. This is not a black and white issue, as you will see below.

    “Ultimately, people want to be recognized (monetarily) for their hard work and ideas, and that isn’t going to happen with open source.”

    If this is your position, you do not understand the open source business (as in $$$ money) model, and are not qualified to judge it. There are business that use open source as PART OF their business model. Companies give away software for free so that they can sell the implementation of it when the client does not know how, sell custom solutions outside of the standard package. They the fact that their software is running on so many platforms in ways other than selling the software. I know is is very hard concept for a capitalist maximalist to understand. Need example companies using this business model? How about these Fortune 500s: Sun, Red Hat, IBM.

  48. Nick-

    Please explain how someone saying your views suggest you are a believer in communism is name calling. You do understand that it NOT name calling and would be descriptive of a particular philosophy or ideology, correct?

    Please also explain how if someone calling you or your views communist is name calling how you using “capitalist maximalist” is not likewise name calling?

    Just trying to keep things intellectually honest :-)

    As for the companies you point to in the Fortune 500… Sun, Red Hat and IBM, you do realize they all have extensive patent portfolios, right?

    -Gene

  49. “the fact that our concepts are so abstract is another reason why patenting software is bad – it is impossible, realistically, to determine whether two ideas are equivalent when both are sufficiently abstract; it’s also impossible to determine whether an idea is off limits when it might have been described in the patent databases using completely different terminology.”

    Exactly why ideas and abstract concepts are not patentable. Only inventions are patentable.

    You are right that programmers and patent attorneys use the same language to mean different things, but since it is defined in patent law and we are talking about patent law here should you and other programmers use the language in the same way the Patent Act and cases interpreting it do if you are going to question the patentability of software? This is a major problem really. Computer programmers and many scientists think they know more about patent law than patent attorneys, which is really absurd. You think you can use your own meanings and transpose them into the patent world.

    The trouble with computer programmers and most anti-patent folks (in my opinion) is that they don’t read the patents and somehow think they know what is covered simply by looking at the title, maybe reading the abstract and looking at the pictures. The reality is the claims define the exclusive right and if you want to self-exclude yourself from using concepts and ideas that are not protected in a patent that is not a patent law problem. That is a problem created by lack of understanding of the law and rights associated with a patent.

    -Gene

  50. POP-

    You have come a long way in your understand of patent law. I think if you could act as translator between patent attorney and software guys (and gals) there might just be more common ground than anyone could have imagined.

    -Gene

  51. >What happened to Netscape? Could they have stayed more relevant? Would patents have helped?

    What an awful thought: that patents could have given Netscape a 20-year monopoly on web browsers. Which serves the public better: saving a company that can’t keep up with the competition, or forcing companies to innovate to survive in a competitive environment?

  52. >What is to prevent somebody from coming into your office and stealing all of your computers and servers?

    It would be quite hard for them to do that without knowing they were doing it and having malicious intent. Infringing patents can be done unknowingly, which is against all principles of natural justice.

  53. Michael Kay-

    Why do you think patents on a product that no one wants to use would be a bad thing? Netscape was behind by at least V 3 of Internet Explorer. So their right to exclude others would have been meaningless because no one would have wanted to use Netscape, so no one would have wanted to infringe.

    I think you have a screwed up idea of what patents provide. If one owns a patent that doesn’t prevent an entire line of research, development or innovation, it merely excludes what is specifically claimed in the patent. You seem to believe that a patent carves out an entire industry, which is simply not correct.

    -Gene

  54. >Why do you think patents on a product that no one wants to use would be a bad thing?

    Just suppose that there is one thing (P) that Netscape did really well, and that they patented it, and then they failed in the market because there were other things that they did really badly. You really think it’s a good thing that P should be off limits for the rest of the industry? You claim that is in the public interest and that it encourages innovation? Putting P off-limits just means that everyone else has to produce sub-optimal software. No-one gains from that.

    As far as I can see, we have lots of unsuccessful companies who failed to translate an idea into commercial success suing successful companies who got it right. We’re rewarding failure. The whole system is bonkers.

  55. More misunderstanding of the benefits already accrued at the time of patent grant and ignorance of the effects of the aspect of promotion with the design around.

    Quid Pro Quo, people.

  56. My point above was that MS does not innovate. They copy. They have an unfair advantage in the market place. My Windows software asks me every time I log on if it can switch my default search browser to a) windows search or b) bing. If I want to find my favorite search engine Dogpile (not google) it tells me that it is not available. Is that fair to Dogpile, which I think does a better job? MS doesn’t have to do a better job, they just force you to their services. At home I can choose Mozilla, but the MS Explorer is impossible to remove from the computer I purchased. MS is embedded in everything. The EU agrees, MS has been the target of many antitrust actions yet they comply at a minimum and continue to gobble up various services. At work I don’t even get an option. Corporate America, IT and MS in one big “Jack Sandwich” with me stuck underneath.

    Patents will and do protect the little companies from unfair copying of their inventions. Most software patents are fairly easy for a 3rd grader to design around. Apparently marketing is less innovative than a 3rd grader because they always try to do exactly what the other guy is doing. You scream and shout against software patents, you own a small software start-up, exactly how many times have you been at the receiving end of a patent suit? You are arguing against a threat that isn’t there. They COULD charge you with infringement, if you did exactly what their patent claims. Do you understand the scope of their claims? The generic statement, “Everything is claimed!” doesn’t work because everything isn’t claimed. Much stuff is available in the prior art, many patents have expired, many more read on very specific methods.

    Unfortunately every patent owner/inventor likes to think their patent is broader than it really is. Non-commercial entities (Trolls) also like to think their patents are broader than they really are. Sometimes they get away with it, usually they don’t. Most patent infringers argue that the patent is narrower, and doesn’t affect them. In this case, as with many of the anti-software patent crowd (and anti-Myriad crowd), it suits their argument to claim the patents are broader and more obtrusive than they really are. Yes Netscape had many patents, No it didn’t stop Microsoft or Mozilla, and the industry moved on leaving Netscape behind (or behind the scenes). Your fears about software patents are unfounded. As the field matures and more patent prior art is available, the patent quality will improve. Bad software patents are bad for software and bad for patents. If the patents were limited to truly innovative processes, then both software and patents would benefit. Your insistance that all software be available in a eutopian free-for-all does not foster innovation in medical or technical software applications where a lot of time and money is spent to develop new solutions to very complex problems.

  57. >You scream and shout against software patents, you own a small software start-up, exactly how many times have you been at the receiving end of a patent suit?

    Never, fortunately. But the risk is an enormous distraction and diversion of effort. It wastes hours of time every time I write a contract. It’s diverting money into the pockets of lawyers and serving no useful purpose to the economic good of society.

  58. -Mike

    Just a few points. You can remove Internet explorer as long as you have administrator privileges. I won’t walk you through it because it is different in different versions of Windows, but you can do it. The trick is that it isn’t in the installed programs, but in the Windows features section. This is also where you can turn off things like minesweeper. I do agree though that it is obnoxious for them to bundle it, but it isn’t any more worthless than most of the software that gets bundled on a new Windows box, and as long as it lasts long enough to download a good browser, it does serve some function.

    Also, Mozilla is directly descended from Netscape. When Netscape opened up their source code, it became the basis for Mozilla, and Netscape continued to pour effort into that project. If you ever used the old Netscape with built in email reader, it looks just like Thunderbird did until this last 3.x version. That is because it was mostly the same source code. Netscape released their code in order to gain developers to help combat the rise of IE being bundled with Windows.

    I recommend using Linux, then you don’t have all those Windows problems. ;)

  59. “What an awful thought: that patents could have given Netscape a 20-year monopoly on web browsers. Which serves the public better: saving a company that can’t keep up with the competition, or forcing companies to innovate to survive in a competitive environment?”

    Let’s follow up on that a little. The next Netscape comes along. However, they are small, at the start-up phase, and need cash. Back in the roaring 90s, people just threw money at your company. However, the lesson of the likes of Netscape and all the other failed software companies has not been forgotten by investors. So this “next Netscape” comes along and has this great new technology — should they attempt to get a patent on it? Or should they donate it to the open source crowd like some suggest and let those best suited to implementing the technology reap the benefits? How do this startup get compensated for its work? Put another way, who will compensate them if their ideas aren’t protected?

  60. Michael Kay-

    “serving no useful purpose to the economic good of society.”

    I could say the same about many programmers who over promise, under deliver and pretend everything is black magic. So if you want to complain about diverting money into the pockets of lawyers, let me ask why you are engaging in contracts and attempting to get paid for something that should be free for everyone to take, copy and distribute as they see fit? Why engage in such extortion?

    Lets try and keep things honest, shall we? If you are complaining about lawyers and the need to have them why not just create and give the stuff away? Why have a contract in the first place? Because you want to be able to resort to legal remedies if you get screwed.

    You are such a hypocrite!

    -Gene

  61. “Just suppose that there is one thing (P) that Netscape did really well, and that they patented it, and then they failed in the market because there were other things that they did really badly. You really think it’s a good thing that P should be off limits for the rest of the industry? You claim that is in the public interest and that it encourages innovation? Putting P off-limits just means that everyone else has to produce sub-optimal software. No-one gains from that.”

    Not particularly business savvy, are you? In the example outlined above. Netscape should license their technology out to other companies. The market will determine a fair price for whatever feature that Netscape invented. The technology is then available for people to use and improve upon, and Netscape has an income stream to develop more technology. This stuff happens all the time, and it is a win-win situation for everybody.

    The open source crowd, however, doesn’t want to reward the inventors. Instead, they want to keep all the profits to themselves. Heck of a business model — rely on other people to do the heavy lifting (for free) and then capitalize on their work by making a few modifications.

  62. -Just Visiting

    “The open source crowd, however, doesn’t want to reward the inventors. Instead, they want to keep all the profits to themselves. Heck of a business model — rely on other people to do the heavy lifting (for free) and then capitalize on their work by making a few modifications.”

    Hardly. Most of the active work going on right now is being done by corporations that make money on Linux. Do small time contributors get rewarded for their work? No, but they didn’t expect to. Almost any individual like Linus, or corporation contributing major work to open source products is being compensated in one way or another.

    Besides, thinking that way is to miss the point of open source. If I am a company like Google and I need a bunch of new features and I write them into the current project, then all that work becomes available for everybody else to use too, but I was going to do that work anyways because I needed it. The only thing that happens is that more people gain, but you don’t lose anything, unless you are afraid of your competitors doing the same. If however, they are in the same business as you are, then they are probably doing the same thing and you will get their contributions. And they don’t contribute anything, then they probably don’t have a very good leg to stand on for offering support since they didn’t write any of it.

    Ubuntu makes a fair bit of money selling support for their server distro, as does Red Hat and Suse (Novell), but they all also contribute A LOT back into it.

  63. >Put another way, who will compensate them if their ideas aren’t protected?

    Copyright protection for software works perfectly well. The system could be greatly improved and modernized, but unlike patents, the system largely achieves its purpose, both in software and in other creative industries like music, films, and book publishing (none of which seem to need patents alongside).

  64. >Not particularly business savvy, are you?

    Are your arguments really so weak that you have to resort to ad hominem insults?

    >The market will determine a fair price for whatever feature that Netscape invented.

    No, it won’t. The market has been distorted by the government granting a monopoly to Netscape. The fair price would be the cost of developing the same technology independently from scratch. The artificial monopoly created by the patent inflates this price unfairly.

  65. >If you are complaining about lawyers and the need to have them .

    I wasn’t complaining about lawyers. I was complaining about the patent system. The patent system creates work for lawyers, and costs money that could be spent more productively.

    >You are such a hypocrite!

    My, you know how to make friends and influence people.

  66. Michael Kay,
    Some of your statements contradict themselves or work only on an individual basis for someone who is donating their time and expertise to open source. Your model works for a slowly migrating ethereal bed of software that makes changes and tweaks to existing technology.

    Your model does not work for someone who is developing an new or complex solution to a complex problem. Some problems require investment of time and money to overcome. In that case, merely exposing a competitor to your new software method would then lead to complete loss of your investment without return.

    In the case of i4i, Microsoft asked for a XML editor that could be integrated and function within a word processing program seamlessly. i4i spent time and money developing a system for MS. i4i demonstrated the system for MS with features under what appears to be standard business setting, confidentiality, etc. i4i presented them with the features and benefits of their system and may have left them a copy of the software. MS took their work, sent it to an software engineer and said make this with these features, you can do it this way. The engineer wrote new code to do the same thing the same way. MS stole the guts of their XML editor from i4i and gave them nothing in return, no credit, no money, no development costs.

    Without patents, software developers would have to hide the methods used to keep a competitive edge over their competition. No one would share code, I’m sure you don’t allow your clients to freely distribute the work you do for them. Do you let your clients revise your software and become your own competitor? Without patent protection you do. With patent protection, people disclose their NOVEL AND INNOVATIVE ideas to the public for a limited protection, the innovation becomes public after 20 yrs.

    IF the open source crowd started a database of public methods (code with a little description of what it does) that was dated and historically accurate they could stop bad software patents. Someone from the USPTO should work with RedHat/OpenSource to develp a Computer and Business Methods Annotated Database (CABMAD) that is annotated with enabling code and flow diagram describing the function. The USPTO could add patent literature and the database would eliminate bad patents. People could tie art to patents and easily see patents directed to certain processes. It would foster innovation because it would provide many design arounds and it would rid the world of BAD software patents. If the USPTO doesn’t take it on, maybe the EPO or WIPO and the EBI could work at it.

  67. “Are your arguments really so weak that you have to resort to ad hominem insults?”

    Boo hoo … if you cannot take the heat … find another blog.

    “No, it won’t. The market has been distorted by the government granting a monopoly to Netscape. The fair price would be the cost of developing the same technology independently from scratch. The artificial monopoly created by the patent inflates this price unfairly.”

    Oh please, are you that ignorant about business?

    “The fair price would be the cost of developing the same technology independently from scratch?” People/companies buy things (technology, products, services) based upon their value to that particular person/company — not based upon the underlying cost to produce the “thing.”

  68. “My, you know how to make friends and influence people.”

    Just calling it like I see it Michael.

    Still waiting for you to address the contract issue though. You picked out my characterization of your position as being hypocritical, but choose not to address the substance. Typical I know, but telling nonetheless.

    You moan about patents and resources yet you choose to engage lawyers to protect you through contract law. So please do enlighten us as to why you choose to do that? If establishing rights in software is bad when done through the patent system why is it appropriate when you seek to do the same thing through private contract? Why not just rely on a hand shake deal and then when it is broken and your code is taken and payment is not made just chalk it up to software being something that should be free to take?

    And, by the way, I do know how to make friends and influence people very well thank you very much. I also know how to stay relevant and intellectually honest as well.

    -Gene

  69. This has been an enlightening discussion. I usually only discuss these matters with other programmers, where there is an almost universal consensus that software patents are bad for innovation. This is confirmed by a recent poll in New Zealand, where 80% of the members of the profession who responded took this view. It’s interesting to discuss the same matter on a forum with legal professionals, and to discover that you think we are all idiots and/or communists. I’m not going to persuade you, and I have to get on with real work. So goodbye.

  70. I usually only discuss these matters with other programmers, where there is an almost universal consensus that software patents are bad for innovation.

    This is obvious that such discussions generate your keen insights into actual patent law and are one great big kool-aid party.

    Not complaining miind you – those are great for my sales.

  71. MIchael Kay,

    I understand your discouragement. It is hard when there are two sides to the argument. We don’t listen to yours and ours makes no sense to you. Software programmers are afraid of the idea of patent infringement. The idea that someone may harm them when they just developed a program on their own. As a software engineer you have likely never had to analyze the scope of a patent claim, compare the patent claim to your process, and determine if your process infringes the patent. Many software patents are directed to a specific series of steps that accomplish a goal much better than they have in the past. Frequently if you change one or two parts of the process you are outside the scope of the claims. Often you’ll find that most processes don’t even infringe the claims.

    You site i4i, but after reviewing the case it appears that Microsoft flat out stole i4i’s work. You likely would have sued MS if put in the same situation and MS had done the same to you. Imagine presenting to MS what you could do for them, expecting a big contract and lots of steady work. Next imagine MS doesn’t hire you but instead generates the exact same thing you showed them. You’ve held on to that work waiting for MS so they will pay you top dollar, but now they just undercut you and leave you with no where to sell your great product. You court case will not have had a good outcome because you don’t have patent protection.

    Most software programmers are complaining a) because they don’t understand how the patent system works and what a patent claim covers, or b) because they want to copy someone elses work without any strings attached. Most I think just want to do and copy what they want, most probably use bit-torrent and download songs for free, most probably feel it’s fair because it’s all a part of the global community.

    Continuing with blatant disregard for IP Issues is not a valid argument. Like driving down the road with a blindfold on saying you didn’t see the speed limit. If you ever get served with a cease-and-desist letter, contact a patent attorney. I wish you the best.

  72. @Mike
    “…they want to copy someone elses work without any strings attached. Most I think just want to do and copy what they want, most probably use bit-torrent and download songs for free, most probably feel it’s fair because it’s all a part of the global community.”

    No, this is not how most programmers think. We could just as easily say that all lawyers like to see people suffer, stomp on anyone when given the chance. Of course, this is probably not true. Some are good people.

    Like all people, programmers need to be given a reason to by. When confronted with a challenge, we would rather come up with creative solutions to problems ourselves rather than just copy. But if someone has figured out the solution and wants to share, we are all for that too. Programmers and people who support open source do not have a blatant disregard for all IP. We know the difference between a fake copy and the genuine deal, and we will pay when we think it is worth it to us. It is up to business developers and marketers to figure that out. We also like to contribute and take from the gift economy with open source software, Creative Commons works, and the public domain because we see benefits there to, and they are different. We would rather see the best execution of an idea compete in the commercial marketplace.

  73. “It’s interesting to discuss the same matter on a forum with legal professionals, and to discover that you think we are all idiots and/or communists.”

    I wouldn’t say I think programmers are idiots and/or communists. I do think it is fair to say that the ideology of many programmers is a socialist ideology, at least insofar as the business of programming. That is not name calling, just descriptive. I do, however, remain confused regarding why you enter into contracts. I don’t see where you have addressed that. It seems to me that entering into contracts demonstrates that you wish to exploit your work and contributions for money. I am sure the contracts also have penalties for failure to live up to obligations and likely even recapture provisions if there is not payment. They likely also have anti-copying and redistribution clauses. So I wish you would really enlighten us about how private exclusion via contract is acceptable but somehow patents are evil and unnecessary.

    I am not foolish. I know you won’t respond because if you did you would have to come to the conclusion that at the core your arguments are flawed. That being the case it is easy for many to jump to the conclusion that your desire for no patents is fueled by the desire to copy and exploit the work of others in a free-rider situation.

    As for idiots… I would say naive and hypocritical. Anyone that can program is certainly not an idiot. It is complicated stuff no doubt.

    -Gene

  74. and we will pay when we think it is worth it to us

    I tried the same thing with the IRS.

    Funny how actual Law does not work that way.

  75. @69. M. Kay wrote: “This has been an enlightening discussion. I usually only discuss these matters with other programmers, …. It’s interesting to discuss the same matter on a forum with legal professionals, and to discover that you [all] think we are all idiots and/or communists. I’m not going to persuade you, … So goodbye.

    M. Kay,

    If you are still lurking out there, please take notice that we evil patent attorneys do not only discuss these matters only with other evil patent attorneys; we actually talk (politely) with computer professionals to hear them out.

    Not all computer professionals are absolutist adherents to your anti-patent ideology.
    Some have open minds.

    Of course, there are others who are card-carrying members of the League for Programming Freedom (the coder’s version of the Tea Party) and who have made up their minds to the point where rational reconsideration is not an option. Too bad. But what can you do? Some people have both boots firmly planted in the quick sand and they have no intention of ever leaving those boots behind.

  76. dammit step back, there you go again being all rational and trying to sabotage my kool-aid sales.

    Lucky for me, M.Kay has a group of friends that are ardent Kool-aid drinkers. You are definitely not invited to the next discussion of why software patents are bad for innovation.

  77. I really meant to say goodbye, it’s crazy to come back, but I just can’t resist.

    >Not all computer professionals are absolutist adherents to your anti-patent ideology.
    Some have open minds.

    That’s just priceless. Words fail me. You must feel really threatened to put up such emotional defences. Glad I’ve made you uncomfortable, even if I couldn’t get you to listen to rational argument. Now I really must go.

  78. @77. M. Kay wrote: “You must feel really threatened …

    M. Kay,

    If you are nonetheless still lurking out there, please take notice that I am not at all surprised by your resort to an ad hominem attack. That is patentably old and notoriously common for debaters of your ilk.

    However, if you want to instead switch over to substantive debate, please further note that almost no one files a patent that says “I claim software, where said software comprises …”.

    So there really is no such thing as a pure “software patent”.

    Instead we evil patent lawyers will often throw in something that says: What is claimed is: 1. A machine comprising: a 1st machine part; a 2nd machine part; and a 3rd machine part; wherein the 3rd machine part has machine recognizable code provided thereon and the 2nd machine part is responsive to that code so as to perform machine-implemented functions X, Y and Z.

    Machines have always been considered patent-eligible subject matter. (Except perhaps when the confused Supreme Court judges in Gotchalk v. Benson got all frazzled and started to believe that a re-entrant shift register is not a machine. Steve Jobs wasn’t around to throw his reality distortion field at them, but somebody else sure was.)

    Any way, when the folk from your camp coming screaming down from moon shine mountain, complaining all about this evil software patenting stuff going on, we patent practitioners find ourselves scratching our heads and wondering what all those kool-aid drinking hillbillies are clamoring about?

    We’re claiming a “machine”. What’s your problem with that?

    Or alternatively we will sometimes claim a machine-implemented method. What’s your problem with that?

    Do you now see why we don’t understand what you are saying and what moonshine county you are coming from?

    (OK. I’m sorry. I couldn’t resist throwing in those ending ad hom come backs. But on the other hand, you need to address the issue of there not being any pure “software patents”. It’s a red herring. It doesn’t exist. So what is your real issue? Are you worried that the patent police will break into your hacker’s cottage in the middle of the night and accuse you of having committed criminal patent infringement 2 micro seconds ago because your fingers slipped and you typed “MOV A to C” instead of “MOV Z to C”? That’s not reality. That’s just a fantasy fear factor thrown around by the League for Programmer Paranoia. The real, pragmatic world just doesn’t work that way.)

  79. -Re: Programmers as socialist and communist.

    Look, there is nothing wrong with a little bit of socialism. Unfortunately our brain dead political divisions have made it into a dirty word. We all engage in a little socialism, and few people are inclined to reject it. Take a look at schools, libraries, public roads, etc.. We all pay taxes to maintain these things for the common good.

    What would the world be like if all the roads were privately owned? It would be one hell of a mess. Some kinds of software are the same way. Look at browsers. All the best browsers are open source. No matter how hard the closes source guys try, they just can’t quite keep up. Internet Explorer and Opera, two of the largest closed source browsers are way behind in standards compliance and features compared to their open source competition.

    One of the reasons why a lot of programmers seem so socialistic is because the field hasn’t been around for that long and it evolved out of mathematics, a very socialist academic field. The idea of intellectual property in Mathematics would seem abhorrent to any Mathematician, and many of them were the ones pioneering the field. Lots of real computer scientists, as opposed to just technically trained coders, see programming as an applied form of Math, and so they see intellectual property as getting in the way. This is probably because a lot of them don’t understand what patents actually are, or are unaware of the real problems because they are only exposed to rhetoric.

    There is a place out there for open source software, just like there is a place for public institutions to coexist with private ones. Zealots who want things to be all one way or the other aren’t really interested in the best solutions to problems. They are only interested in advancing their political ideologies.

    One argument I do get tired of hearing is the one that says that programmers are all just thieves who want to steal other people’s code and ideas and get paid off the backs of other people’s labor. That is complete nonsense. Most programmers get paid to write in house software that uses a mix of open source and licensed toolkits, frameworks, and libraries. Most of them aren’t really properly educated, and they couldn’t care less about patents. They just want to show up to work and collect a check. Actual programmers in the open source world not only don’t mind that companies are making money off support, they encourage it because it gives validity to their concept of software creation.

  80. I really meant to say goodbye, it’s crazy to come back, but I just can’t resist.

    It’s my delicious Kool-aid.

  81. “I usually only discuss these matters with other programmers, where there isan almost universal consensus that software patents are bad for innovation. This is confirmed by a recent poll in New Zealand, where 80% of the members of the profession who responded took this view.”

    …. This just in to the news desk … a recent poll of the haves and the have nots reveal that that have nots want, for free, what the haves have and the have’s don’t want to give away, for free, what they have. Since the have nots usually greatly outnumber the haves, I think your 80% number is about right.

    What I find funny is that your belief that copyrights work just fine in protecting your software but you eschew patents. I think the reality of the situation is that your know that a copyright isn’t going to prevent you taking a competitor’s software feature and incorporating it into your own software, yet a patent might, and that has you worried. Innovators don’t fear patents because they know their value. Copiers, however, rightfully fear patents.

  82. You couldn’t get anyone to listen to rational arguments because you didn’t make any MK, but I’m sure you know that. You are not stupid, just comfortable with your own ignorance. You keep coming back because you would like to know the truth. You’ll be back, even as a lurker.

    -Gene

  83. I’m not attacking, I’m just laughing. It’s all too absurd. Here’s a bunch of guys who make their living out of patenting software and can’t explain to me why it’s a good idea: first they tell me that I should protect myself by patenting my software, then they tell me that when other people patent their software, I shouldn’t regard that as a risk to my business. They can’t see that this is inconsistent, instead when I point out the lack of logic, they reply that all programmers are communists and morons and drink some substance that’s not actually available in this country as far as I know. I shouldn’t really laugh, because you guys are destroying our industry: but it’s so awful to watch, there’s no other way to react.

  84. >your know that a copyright isn’t going to prevent you taking a competitor’s software feature

    Yes, you’re right. I’ve been playing leapfrog with my competitors for years. We all take ideas from each other, and from the publicly-funded research community, and build on them. The technology has advanced rapidly as a result; the market has grown as a result; everyone gains from the expanding market, and the customers are the ones who gain most. The economy benefits. The suppliers who win are those who can implement new ideas most quickly and most effectively. What’s wrong with that, please? Why should the government want to stop it?

  85. MK,

    There is a big difference between “ideas” and patented technology.

    No one can patent an “idea”.

    The whole purpose of the patent system is to promote the progress of the useful arts by encouraging the dissemination and sharing of “ideas” … as opposed to encouraging secrecy and the formation of exclusive technology guilds. If there was not a patent system then our civilization would revert back to the guild system where people kept knowledge very secret and shared it only sparingly with fellow guild members. Read your history books. Look up trade guilds.

    Example:
    http://en.wikipedia.org/wiki/Guild#Background_of_early_guildlike_associations_AD_300_-_600

  86. “Programmers and people who support open source do not have a blatant disregard for all IP. We know the difference between a fake copy and the genuine deal, and we will pay when we think it is worth it to us. It is up to business developers and marketers to figure that out. We also like to contribute and take from the gift economy with open source software, Creative Commons works, and the public domain because we see benefits there to, and they are different. We would rather see the best execution of an idea compete in the commercial marketplace.”

    Open Sourcers are likened to an unruly bunch of children who feel that their parents owe them all knowledge free of charge. They don’t have an Adult relationship with the ownership ways of the world. Common ownership is a carefully worked-out social contract among the people, like Eisenhower’s US highway act in 1951. A social contract like that has yet to be worked out regarding net neutrality. Every thing else – tangible like machines and real estate, and intangible like innovative software inventions – has to be accounted for legally and monetarily.

    As for recognizing software worth and paying for it, I remember years ago as a software developer contractor working with a freebee SQL database on a DoD contract. In the software install’s readme.txt file, one of the main developers at the end of the text was complaining that he had a day job too you know, and was tired of the impatince the users of his SQL database software were showing him, and that to his knowledge, not one of the 3000 corporate and otherwise users had coughed up a donation for the use of the software which they were asked to do, and on like that. This is how Adults and property and money works for real.

    Grow up, Open Sourcers.

    Robert

  87. Anti-Entropy:

    Ingrates …

    That is a good name for those who don’t want to compensate inventors and innovators for their hard work.

  88. >Open Sourcers are likened to an unruly bunch of children who feel that their parents owe them all knowledge free of charge.

    I’m not sure what open source has to do with this thread, but since it’s turned into a pretty chaotic conversation anyway, let’s ignore that.

    When you say “Open Sourcers”, do you mean those who write open source software, or those who use it?

    People who write open source software do so for a wide variety of motives: some for the pure fun of it, some in order to make money. Many of them achieve their objectives, whatever they might be. Some, of course, don’t: but then, many people hope to make money by making music, and very few succeed, but the world is a better place for their endeavours.

    People who use open source software in my experience generally do so to save money. Many of them succeed in this objective. I dare say one or two have found that they made the wrong decision, but then business is about taking risks: and it’s surprising how few failures there seem to be.

    Do you think either group is behaving irrationally, and if so, why?

    In my case, I started producing open source software because I enjoyed it ,and I continued because I found a way of creating a successful business out of it.

  89. MK,

    There is absolutely nothing in the Patent Laws that prohibits the owner of a patented invention from dedicating his/her invention to the public and thus making it free for use.

    In fact, many inventions automatically become dedicated to the public 4 years after patent issuance because the patent owner chooses to (or forgets to) pay the maintenance fee.

    The point is that inventors (of software related inventions or otherwise) should have a choice as to whether they want to be so benevolent and give away their work product for free or whether they instead wish to insist on being compensated for their work by those who enjoy the fruits of that work.

    You say that you have a “successful” business.

    For most readers that implies that you are somehow being paid for your work and that your revenues exceed your expenses.

    Good for you. But why do you want to deny that same right (of being fairly compensated for work done) to inventors of software related inventions? It seems almost hypocritical.

  90. >But why do you want to deny that same right (of being fairly compensated for work done) to inventors of software related inventions?

    I don’t. On the contrary. I just don’t think the patent system is a good way of achieving this. Apart from anything else, the patent rewards the first 1% of the work (the initial concept) and not the last 99% (turning it into a working product).

  91. “I’m not sure what open source has to do with this thread, but since it’s turned into a pretty chaotic conversation anyway, let’s ignore that.

    When you say “Open Sourcers”, do you mean those who write open source software, or those who use it?”

    I am referring to those who write code and relinquish their ownership rights by giving it away for whatever reason. Open Sourcers who use software without social or monetary remuneration are merely ingrates as ‘step back’ puts it.

    “Do you think either group [people who write and use open source software] is behaving irrationally, and if so, why?”

    Not in the least. Under normal conditions the human being is designed to both learn and create as natural courses of activity, the acts of which give them intrinsic happiness. Such activity certainly includes the writing (and yes, I think it is a joy to write code) and the learning from other people’s software. But free learning and exercising that learning is primarily a juvenile activity in the sense that a child’s expectation and right is that he be trained in the ways and knowledge of society without cost. After all, they didn’t ask to be put here on earth. But, as the child matures, he soon must bear the expense of his education. After all, it costs money to run those universities. Just like it costs money to develop and present new innovative software for the world. Open Sourcers, in my opinion, are merely a petulant group of merauders engaging in adult software activity with juvenile expectations. The reason they can do this today is, the society currently is still working out the details of the social contract (read: software patent law) that governs innovative software development and use. In other words, they can. For a complete and definitive explanation of why they can, read Mark Helprin’s “Digital Barbarism”.

  92. @88 M. Kay writes: “Apart from anything else, the patent [system] rewards [only those engaged in] the first 1% of the work (the initial concept) and [compensates not those engaged in] the last 99% (turning it into a working product).” [bracketed text added]

    I have no clear idea where M Kay draws his 1%/99% scientific data from or what exactly M Kay means by “turning it into a working product”.

    However one may reasonably surmise that M Kay draws his 1 versus 99 numbers simply from some quote of Thomas Alva, where the latter Mr. Edison said INVENTION IS … yah da yah da … so many parts inspiration and so many perspiration. The thing to focus on is that Edison was defining, based on his personal experience alone, that “inventing” is hard hard work. It’s not just sitting around staring starry eyed at the sky and having a sudden flash of genius as a shooting star streak s by. It’s much more. It’s mostly all hard work.

    Patent law requires the inventor to come up with an “enabling” disclosure where that disclosure enables all skilled in the art to make and use the claimed invention. That in its essence, is turning the “concept” into a “working product”.

    One cannot get a patent for a mere “concept”. It must be enabled by the patent application as filed.

  93. Anti-Entro,

    Hold on a second body. By that definition, I’m an ingrate. Heck. I use free software. I use Mozilla’s FireFox. That is a freely given away program that easily bests MS’s sold I.Explorer.

    But I am not ungrateful.
    For whatever reason motivates them, a great number of gifted programmers give their work product away for free and God bless them for doing so. I for one am grateful.

    However, the open source coders who give their work away for free do so of their own free will just as anyone who gives to the public commons or charity gives their efforts away on the basis of free will.

    What the anti-patentists want to do is to force ALL inventors to give away, against their will, their work product for free. That is known as involuntary servitude and communism. (What’s yours is mine and what’s mine is mine. Slavery and communism, they are simply opposite sides of a same coin.)

  94. MK says “People who use open source software in my experience generally do so to save money.”

    I think that is a motivation, but perhaps only a minor motivation. I think people use open source software because it works better (usually) than proprietary software.

    MK says “I started producing open source software because I enjoyed it ,and I continued because I found a way of creating a successful business out of it.”

    In my opinion this is the best way to start a business. Grow the business to meet opportunity. When you can grow a business that is enjoyable all the better.

    The thing I would caution against is believing open source is incompatible with patents. Many of the largest open source companies have large and growing patent portfolios. If it is good for them then why not for you? Open source, if it is going to survive and continue to grow as an industry, will need to follow the lead of the new generation open source companies that use open source as a collaborative development tool and then proprietarily protect what results.

    Patent pools are also only going to become more relevant to open source developers. The truth in business is you make more money cooperating with competitors, or at least not trying to kill competition. When competitors play nice and do not sue each other the entire industry makes money, which is what you find in mature industries. Open source could turn a young industry into behaving like a mature industry when the parties form patent pools, sharing what they develop with others who are willing to share. Collectively obtaining many patents so that if (or more likely when) large proprietary companies sue the collective have many patents to counter-sue with. If the pool becomes large enough and strong enough it can and will lead to stand-offs, holding large proprietary companies at bay.

    So patents are not contrary to an open source model, but necessary. Exclude those who are not cooperating and have the portfolio be a defensive one. That is responsible business. It would also lead to more functional software with fewer glitches, which will continue to have individuals and businesses migrate to open source platforms and solutions.

    -Gene

  95. -AntiEntropist

    You sir, are as charming as you are correct. Not a compliment I assure you. Comments like your assume that innovation only comes from proprietary sources and that all open source software steals all their good ideas from them. It must be nice living in a world of black and white where all the facts are wrong.

    Open source programmers do innovate a lot, but as Gene has pointed out, are reluctant to claim their IP legally and so it appears as though they don’t. Many open source programs are far superior in every way to their closed source competition. How do you explain that? Also, a lot of proprietary shops employ people to work on open source and most of them use open source in their business. Ideas and innovation flow both ways as Gene has also stated. Besides, having a good idea isn’t the same as having a good process, and if measured that way, I would be willing to bet you will find a lot more proprietary shops stealing open source processes than the other way around.

    It is clear that you have absolutely no idea what you are talking about and chose instead to paint all open source participants with an ignorant brush. You are no better, sir, than the common racists who harbors no defense for his disgusting position. I can’t take your arguments seriously enough to be angry with you. It isn’t even a fair fight when you are so willfully ignorant.

  96. Anti-Entropist said, By Open Sourcers “I am referring to those who write code and relinquish their ownership rights by giving it away for whatever reason.”

    You appear to have confused Open Source with Public Domain. Open Source software is copyrighted and the owners defend their property. For example, see the Free Software Foundation’s enforcement of the General Public License.

    –Ben

  97. Some of you folks might be interested in this: “copying and free riding are essential parts of the creative process: all creators begin with a common creative palette drawn from prior innovations they had no role in producing. ” Not written by a ideological programmer, but by two Professors of Law. The fact that they’re talking about fashion (clothing) rather than software doesn’t really affect the arguments.

    http://www.acslaw.org/node/15849

  98. I think the debate comes down to this:
    OPEN SOURCE ARGUMENT –
    Code exists in the open source and that code is free to use.
    As an open source programmer MK, et al. want to use the existing code to write programs for their clients.
    The programmers fear a patent infringement suit (happened to MS), might happen to me.
    [NOTE: There are very few examples of these companies getting sued. ]
    Bad software patents are issued to processes that are not new or novel.
    Since the programmers fear being sued, all software patents should be banned.

    PATENT LAWYER ARGUMENT –
    My clients pay a lot of money to develop new software.
    I write patents for the new software.
    The new software is different and better than anything that existed before.
    My client got an issued patent everyone is happy.
    Yes some bad software patents exist and I hate people who sue with bad patents.
    It’s OK because bad patents can be defeated in court by good prior art.
    Software patents can be corrected by improving patent examination.

    The QUESTION is, what about those companies that pay a lot of money to develop a very expensive software? Do they deserve patent protection?
    Example: My client owns a medical diagnosis company (A), they spend ~$750,000 to develop software that identifies and plots cancerous cells into a 4 dimensional image (X, Y, Z, time), they have had to develop many very expensive iterations to overcome various proplems and ensure the cancer is accurately mapped. Now with the new, better software using existing MRI’s patients getting MRI’s can have their cancer plotted during treatment, monitor progress and develop surgery plans. The company wants to recoup the money, They offer to sell the imaging software to 20 cancer centers at $50,000 an installation. Two research installations purchase the product, it is better than anything they’ve ever seen and very accurate. It will revolutionize MRI imaging. The research institute, without the medical companies consent or knowledge, publish the research in a journal and describe how this new software works, but they do not disclose the code. The other 18 cancer centers now write software that functions the same based on the research article without having to do any of the research or overcome any pitfalls. The medical diagnosis company (A) is now out $900,000. They will be unable to develop their next project, imaging for CAT scans. I don’t think open source could develop this software with this level of monetary and research investments – writing integrated software for medical equipment, working with medical patients, using expensive MRI equipment.

    The open source model works well with for projects in the open source arena. You can get clients and work toward a goal and you know what your competitor is doing. Outright copying is of course unacceptable, but pasting a patch of code in for a given subroutine is not out of the question. Yes, that should be and for the most part is free of patent protection.

    On the other hand, the open source model does not work for highly technical fields where there are very large investments in research and equipment to develop new software. In this instance, copyright protection does not sufficiently protect the software as a patent would. Instead of arguing “no patents” maybe the open source community could help the patent community develop better patents. If the open source community developed a good database of software methods, fewer bad patents would issue. You could even contribute to Wikipatents, adding prior art methods that existed before the patent priority date (http://www.wikipatents.com/) although it isn’t geared toward software. It would be better to develop a software database, see my post above re CABMAD. I’d be glad to show you the evidence required to invalidate a patent, to have a database that patent examiners could use to prevent bad patents from issuing, thus making sure no one sued for a patent using existing methods.

  99. Michael Kay-

    Of course it affects the legal argument. You are comparing apples and oranges. With fashion there is NO intellectual property protection. You cannot copyright a fashion design because it is utilitarian. Anything with a function cannot be copyrighted, hence clothing is not copyrighted. Any protections for fashion would need to be under the patent laws, and clothing is and can be protected, but not typically fashion items. A new bra that provides better support would be an example.

    Anyone who utters “copying and free riding are essential parts of the creative process…” knows absolutely nothing about intellectual property law. It really is that simple.

    So go ahead Michael. Copy all you want, as often as you want and watch your fledgling business collapse once you copy the work of the wrong person or company. You are just like so many others who want to find something to believe to justify their inappropriate actions. Of course, never mind the fact that the link you provide acknowledges that there are no intellectual property protections in fashion. I guess you stopped reading before you got that far, which was pretty early on since that was the entire focus of the article.

    If you must be ignorant at least you won’t be able to later say you were not warned.

    -Gene

  100. Anyone who utters “copying and free riding are essential parts of the creative process…” knows absolutely nothing about intellectual property law.

    OK, I’m happy now. If you’re prepared to say that professors of law who have written books on intellectual property law know nothing about their subject, then I don’t need to worry so much that you claim I know nothing about my subject. I really should have stayed away, you have nothing worthwhile to say.

  101. That’s one mighty big gulp:

    The fact that they’re talking about fashion (clothing) rather than software doesn’t really affect the arguments.

    Seems like if we just get rid of patent law Michael Kay would be 100% correct.

    Also, “There’s broad consensus that the strongest justification for awarding intellectual property protection is to spur innovation in situations where unauthorized copying could deprive innovators of the returns on their investment in the development of new products” is nothing but a stock anti-software patent statement (it’s on my big container of Kool-aid crystals, which continues with “but software is different because is doesn’t need promotion and copyright is good enough, even though copyright doesn’t offer the same type of protection ).

    Next thing you know, one of the do-gooders like step back will chime in with “the strong justification is not the only justification” and Noise above Law will point out the Constitutional basis for the promotion, and some silly notion that every field thinks that their field is somehow special and deserves some different type of treatment, but that would lead to an unworkable hodgepodge of criss-crossing art (along some silly line of thought that software is pervasive in many different art fields). That’s just crazy talk, which makes me thirsty. Aren’t you thirsty too? How about a nice glass of Kool-aid?

  102. Michael Kay,

    You can also tell Gene that even (especially) with patents, there is a “a common creative palette drawn from prior innovations they had no role in producing.”

    In fact, the whole point of the patent system is to get people to share their stuff to create a common creative palette (after the trade-value of for limited times has run its course, the information shared in the patent does belong to everyone (which by the way is a bargain compared to the terms of copyright – have you seen how long copyrights exist?)

    So in truth, both sides should be drinking my Kool-aid!

  103. -Mike

    I do find one thing wrong with your medical MRI story, even though I agree with the premise you were trying to lay out. If one of the buyers published the process in a journal and the other 18 institutions wrote programs using that process, it would still cost them a lot of money in development costs. Would the cost of developing it in house with the process already known from the journal be cheaper than licensing it from the place that created it? I don’t know, but that is were free market pricing comes in.

    I understand the point you are trying to make though, that those other instituions should have to pay for the research that went into developing that process whether they use the same code or not, and I agree, but you make it sound as if they are getting off scott free, and they aren’t. It would still be very expensive.

    Now imagine for a moment that you are that other institution and you read about this process and had no idea that they got it from somebody else or that it was patented. You throw a bunch of money into development costs in order to implement it for yourself, only to be sued later because you didn’t know the journal article stole the idea in the first place. That is the sort of thing people are afraid of. Programmers don’t knowingly steal patented processes. They find out later that it was the hard way, whether they came up with it on their own, or got it from a friend or journal, or blog.

    I would say the real people who should be punished in a situation like that are the ones who wrote the journal article without warning people that it was patented. Why should the institution who paid out of pocket, innocently enough, to develop this process be punished? Does that mean that the original creators shouldn’t get what they have owed to them? No, but you can see how a situation like that can create victims out of the “infringer.” A situation more common in programming than willful infringement I would wager.

  104. I know most people fall in between these two extremes, but it helps demonstrate:
    If you were at home writing a routine as part of the commons, 100 lines of code with debugging, you would have no risk. If you received a cease and desist letter, then you could revise or not include that with the rest of the program as it evolves.

    If you were undertaking $1,000,000+ (or more $$$$$ as the case may be) of development you may want to start allocating some funds for IP research.

    Before investing in technical research and developing a new product you need to get a freedom-to-operate search. Should you get a freedom to operate on all work you do, top to bottom? No, a GOOD patent attorney would tell you to look at your competition, look at your likelihood of getting sued, what is the cost/benefit? If you’re rolling out the POP Word(r) 2010 word processing suite to corporate clients across the globe, you’d better have something Microsoft wants (I think they take fresh blood and/or souls). Of course a BAD patent attorney will charge you for each email (even that one where you ask him to the game on Saturday) they will also tell you to get a freedom-to-operate for each project even if you’re not going to market with it.

    Inventors can search the patent databases to see what’s out there in the area they are working. Unfortunately, searching is a skill that requires practice and you get what you pay for. 99.9% of the time, there is a patent that is similar to what you’re doing. Inventors are always improving existing technologies, Edison invented the light bulb, but there were vacuum tubes and filaments available in the prior art. Understanding keyword and classification searching, as well as reference hopping, will help you to find those patents that are similar to what you are doing. It will also give you a nice background in the field you are working. I hate it when inventors re-invent the wheel. Essential products should get a freedom-to-operate prior to hitting the shelves. If you write code for 1 client at a time, each would program would likely be different and there would be little chance of being sued.

  105. Gentlemen,

    Keep your eye on the Quid Pro Quo of the patent deal.

    Massive assumptions are being made here that only business-viable inventions should be allowed. The problem with that, is that knowing what will truly be “business-viable” may not be known at any specific point of the patenting process. It will also not be known what minor (and possibly non-business-viable) shared item can promote (either directly, or by forced work-around) something else that is business-viable.

    The patent system simply is not so micro focused. Your discussion may not be harmful in and of itself, but it may “promote” other dangerous ideas that threaten the US patent system.

    Let’s be careful out there.

  106. There is talk of making fashion copyright more enforceable, or allowing designs to be patented in order to stop the import of similar designs by one’s competitors.
    http://www.businessweek.com/print/magazine/content/08_13/b4077065407184.htm
    http://freakonomics.blogs.nytimes.com/2010/03/12/should-fashion-be-protected-by-copyright-laws-a-guest-post/

    As an opponent of fashion copyright, my position is a lack of patents on desing in fashion is that it spurs innovation, keeping the designs fresh. Once a design is copied or knocked-off, it is so last season that the designer must come up with something new to stay current. It also makes the originals more valuable. The originals will be scares, and the cheap copies help promote the original. Even in the case of forged and faked goods, people are still willing to pay a higher the original, and people can tell when something is a fake. There is a social stigma to wearing forged designer labels. People aspire for the real thing, and while the might not be able to afford it now, one day they will and they will purchase the original.
    http://www.techdirt.com/articles/20091202/1503337167.shtml

  107. >Edison invented the light bulb

    Oh no he didn’t! The contributions of Swan and Sawyer were just as significant. Everyone thinks Edison invented the light bulb (well, Americans think so, anyway) because, after ten years of wrangling in the courts, his patent was validated and he was therefore granted a monopoly. So much for encouraging innovation! The innovation had all happened by then, and it happened as a result of competition and of people building on the ideas of others: the classic leap-frog process that happens in my own business. The patent system then selected one of the players, based entirely on the skills of his lawyers rather than the quality of the product, and rewarded that player to the exclusion of all others. From a public policy point of view, it would have been much better to let them continue competing with each other in a free market. The market, after all, was big enough for them all.

  108. Noise above the law –

    On the contrary, I would say there are more patents to inventions that aren’t successful. Like most small business, most patents don’t succeed. Probably less than 1:100 make money and less than 1:10000 are blockbusters. You may also look at patents expired due to failure to pay maintenance fees, another indicator that people don’t maintain their patents because they are worth less than the maintenance fees.

    The patent trade is that instead of the business going bankrupt and losing all of the innovation, the inventions are put in a public database for later use even after the business went belly up. If it weren’t for the patent system all of our companies would work in a black box and disclose as little as possible to keep others from copying. If it weren’t for patents, companies like Sony, IBM, and Microsoft would likely keep everything closed tighter than a drum. Patents keep IP protection and allow sharing of new ideas. Both are good for open source because they allow the inventor to control their ideas and give them away freely if they want to.

  109. >it may “promote” other dangerous ideas that threaten the US patent system.

    Well, that was rather the intent.

  110. Mike,

    I am unclear as to what you are saying “On the contrary” to. Can you be more specific? Or perhaps I should be more specific. The assumption I seek to challenge is that patents are only for those efforts that are expensive or are those items that when completed need some exclusivity in order to recoup costs. While such may be one of a number of reasons, it is not the driving reason behind the Quid Pro Quo. Reread the constitution and the Patent Act if you must, but there are no such limitations.

    Michael Kay – “Well, that was rather the intent.” preaching anarchy will not win you friends amongst the lawyers. Moving beyond anti-software patent to anti-patent in general is rather telling.

    I think it was Gene that explained the proper background to the popularly quoted Shakepeare line of “kill all the lawyers” – from a person that wanted to loot an unprotected world. I do not think that you really understand the consequences of a patentless society.

  111. pop,
    “Comments like your assume that innovation only comes from proprietary sources and that all open source software steals all their good ideas from them”

    Open Sourcers can, of course, be innovative in using other’s software as the basis for their own learning and development. They can in my opinion also be petulant and ungrateful if you cross them. Interesting you would pick that part of my posting to throw a tantrum over instead of the child/adult behavior theme as was intended.

  112. >I am unclear as to what you are saying “On the contrary” to.

    I think the question was, do I think software developers should be rewarded for their work, and my answer is, absolutely yes. On condition that the work is useful to someone. Not necessarily original, not necessarily innovative, but definitely useful. And remains useful, even in the face of free competition.

    I think software developers are like musicians. Musicians should be rewarded if people want to listen to them. Doesn’t matter whether their music is original or innovative, only that people want to hear it. In both fields, of course, plagiarism is bad, but copyright deals with plagiarism; by contrast, building on the ideas of others and going a step further is good in both fields.

    >Michael Kay – “Well, that was rather the intent.” preaching anarchy will not win you friends amongst the lawyers. Moving beyond anti-software patent to anti-patent in general is rather telling.

    I’ve given up trying to win friends in this place. I just want to make you all feel uncomfortable, to feel that your cosy world is threatened, that software professionals can innovate without your help, and that no-one owes you a living. Generally I’ve confined my arguments against patents to the software field, because that’s where I have 30 years experience; but the more people bring in examples from other fields, the more I feel that some of the same arguments apply. I wouldn’t extend the argument to areas like pharmaceuticals where there is clear evidence that you have to spend serious money on research before being granted a patent. But that simply isn’t true in software the way the system currently works in the US.

    I’m not an anarchist, or against intellectual property. I’ve earned non-trivial amounts of money writing books as well as writing software. I just believe that the current system for patenting software, in particular the way it operates in the US, is not in the public interest.

  113. Michael Kay says: “If you’re prepared to say that professors of law who have written books on intellectual property law know nothing about their subject, then I don’t need to worry so much that you claim I know nothing about my subject. I really should have stayed away, you have nothing worthwhile to say.”

    First, who are you joking MK? You keep saying we, and me in particular, has nothing worthwhile to say and that you won’t come back, but you keep coming back, and you will again because you know I am right and I do have something worthwhile to say.

    Second, you obviously know absolutely nothing about academia, and in particular legal academia. Also, while I am sure this will be a newflash to someone like you, not everything written in a book is correct.

    Go ahead and believe the law professors who say that free-riding and copying are essential to the creative process. They are wrong, pure and simple. And why you would seek the advice of someone who is speaking about a field they know nothing about is odd as well. Do law professors know about the creative process? No, they know about law. Furthermore still, the overwhelming majority of law professors have never worked in the private sector or represented clients. They write about what they think should be, not what is. Finally, the link you provided was about fashion protections and didn’t even say what you said it said. So go ahead and stick your head in the sand. Your business will fail because you are taking advice from those with a philosophical and political agenda. By the time you realize that it will be too late to save your business.

    You have been warned, and when things go splat for you it will be difficult to realize you ignored competent, correct and free advice.

    -Gene

  114. “I just want to make you all feel uncomfortable, to feel that your cosy world is threatened, that software professionals can innovate without your help, and that no-one owes you a living.”

    Threatened? Not going to happen. You are again showing how naive you are. Software will always be patentable, regardless of what the Supreme Court says in Bilski. We always find a way to protect our clients, and always will. The sad irony is that the more complicated the law becomes the more we make. So if it makes you feel better about your current situation to think patent lawyers are threatened then by all means go right ahead. You wouldn’t be the first person to enjoy blissful ignorance, nor the last.

    -Gene

  115. -AntiEntropist

    And what about all the closed source people using open source code for their own profit. It never takes long for a new case to come around where some closed source company like Sony or Microsoft was discovered using open source code without compliance to the copyright license. No patent ever surfaces to help them out, suggesting that it wasn’t open source innovation.

    I’m glad that the open source community has been developing a large patent portfolio to combat this nonsense with, and I wish them all the luck in the world. I don’t know why I am saying them, since I am one of them too. Like most people though, I operate in both worlds.

    The closed source world never stops stealing from the open source world. When they find a nice piece of code, they just throw it into their program and figure nobody will notice since they don’t share it with anybody. Once in a while a lawsuit happens when it is leaked that they were doing it, as was the case with BusyBox. Who knows how much open source code is actually floating around in “closed source” products.

    Most of the innovations that run the internet have come out of the open source world. Most of the software that is written is done for in house use, almost all of it is built on open source frameworks. Your problem is that you have no idea what you are talking about. Maybe you should something…. anything… before opening your mouth again. I doubt that will happen though.

  116. I meant to say that it suggests that it was open source innovation. Oh, if only we could edit comments, then typos would haunt us no more.

  117. “Oh, if only we could edit comments, then typos would haunt us no more.”

    It’s possible, but somebody has the patent on it.

  118. I wonder if SK’s reality distortion video is patentable:

    Movie: Patent Absurdity: how software patents broke the system
    http://www.stephankinsella.com/2010/04/19/movie-patent-absurdity-how-software-patents-broke-the-system/

  119. Noise above the Law,
    I reviewed the Quid Pro Quo as you asked. Meant exactly what I remembered – the inventor contributes something new and non-obvious and he gets a limited monopoly on that invention. My arguments always reinforced the Quid Pro Quo of the patent system; the public must receive meaningful disclosure in exchange for being excluded from practicing the invention for a limited monopoly.

  120. Michael Kay,
    You say copyright is the right protection for software. Yet I feel that you may have seen a function that you liked attached to anothers program and added that function to your own program. Possibly without even giving the previous author credit, as the wrappers do when they incorporate someone else’s sound bites into their song. They also give the other musician financial reimbursement if the do incorporate a sample of their music (except Vanilla Ice, bum-bum-bum-buddadum-bump).
    You have not directly answered my question.
    1) Can all software issues be addressed with open source? Are there more complex software problems that require financial investment to overcome, to develop a new software innovation?
    2) Have you ever written a program to do new functions that you saw in someone else’s program? For a very simple example, added a function that your client requested based on a review of your competitors product. Often clients will try to get several different features from several different products in one package.
    3) Do you think others would do the same if they saw a solution to a complex problem from question 1? If they did, would they help pay for the research and development?
    4) How do you suggest we protect complex innovations from imitators who would use expensive and innovative ideas without financial or even intellectual credit?
    5) Or is your argument that there is never a software innovation worth patent protection because there are never any truly innovative ideas in software?

    The patent system does work well to protect true innovation, even in software. You appear to be more upset and afraid of a patent lawsuit that doesn’t exist. If your software company does start increasing in value, you should investigate patent protection for true innovations. I know that you are just using the tools of the trade available for you to program. Most of those are not blocked by patents and if they are the patents are likely anticipated or obvious.

  121. Mike – thanks. I think I’m preaching to the choir with you, but for the sake of others, we will notice what is not in the Quid Pro Quo – the limitation being inserted by the anti-software people that patents are only legitimate when they serve to recapture investment.

  122. >Yet I feel that you may have seen a function that you liked attached to anothers program and added that function to your own program.

    By “function”, do you mean source code? Or external feature? I would only ever use the source code if (a) the code comes with an explicit license allowing me to do that, or (b) the author has published the code in a way that make it clear he was happy for anyone to use it, for example by posting it on a public forum in response to a user query, or publishing it in an academic paper. Anything else would be illegal, unethical, and unprofessional.

    >Can all software issues be addressed with open source? Are there more complex software problems that require financial investment to overcome, to develop a new software innovation?

    In my view there are no problems that are technically too complex to address with open source, but there are many situations where it doesn’t work as a business model.

    >Have you ever written a program to do new functions that you saw in someone else’s program?

    Again I’m confused by your word “functions”. This time, you seem to be talking about features/behaviour rather than internal implementation. In that case Yes, very frequently. Probably 90% of the features in my software are similar to features I have seen in other people’s software. It’s the way you select them and put them together that makes the difference. (How many composers ever invented a new chord or a new rhythm?)

    >Do you think others would do the same if they saw a solution to a complex problem from question 1?

    I don’t understand your question. If you mean, will others take ideas from my product just as I take ideas from theirs, yes, of course – they do it all the time. I regard it as a compliment, and mention it in my marketing.

    >How do you suggest we protect complex innovations from imitators who would use expensive and innovative ideas without financial or even intellectual credit?

    In my area, I see no benefit in doing so. As I’ve said before, a group of competitors picking up ideas from each other and improving them, each leap-frogging the other, is causing a rapid advance in the technology and hence a growth in the market, to the benefit of all. This gives all the competitors better profits than they could get if there were no competition.

    Don’t imagine imitation is cheap. There might be some areas of technology where that is true. In software, even if you did no innovation at all (creating an exact clone of an existing product, based on its specifications alone) you would still be spending almost as much as the vendor you are imitating. And of course you would be two years late, so unless you’ve got something distinctive to offer, your sales would be zero.

    >Or is your argument that there is never a software innovation worth patent protection because there are never any truly innovative ideas in software?

    I think the main kinds of innovation in software are:

    (a) the really big ideas, like subroutines, or high-level languages, or the quicksort algorithm, or semaphores. These are so fundamental to the industry that it is hard to imagine what would have happened if they had been subject to patents. It would be like patenting the wheel, or bricks and mortar.

    (b) interfaces: for example programming languages and networking protocols. Protection of interfaces is generally a bad idea for public policy reasons, because it restricts interoperability of products and the ability of new players to enter the market. In fact, public policy should and does force companies to expose and publish interfaces so that others can compete fairly.

    (c) everyday problem solving. This is an area where a lot of the bad patents fall. There’s a lot of independent reinvention in this area, and it’s quite impossible to say objectively what’s obvious and what isn’t, or to discover prior art (because most of it is never published). Very often it’s applying a familiar technique in a slightly new way.

    It’s not clear to me that any of these benefit from patent protection: I don’t think they benefit either the inventor, or society at large. Mainly they benefit patent trolls who pick up the pieces when a company gets a patent, then fails to create a successful product.

    There might be a category of invention somewhere between (a) and (c) that merits patent protection, but I find it hard to think of an example. Perhaps cases where the software embodies significant research in the problem domain (e.g. medicine) as distinct from merely software development – which may be the distinction the UK courts are struggling to make with the doctrine of “technical effect”.

  123. A simple “function” as in a series of source code instructions would be very difficult to patent and very easy to design around if they did. I meant “function” as in program feature or activity from an input to an output. Like functions added to the web browser, a new “tool,” or plugin, or an entire routine. Not the programming function, “if X is greater than Y, then… open a new window.”

    I agree with you that patent protection and secrecy can kill a product, especially in today’s environment. Ask Sony or Apple about that, they are prime examples of losing market share by not licensing and letting outside vendors in. Open source does work better because it addresses the problems as a community, comes up with multiple solutions, and allows the strongest to survive. Microsoft (MS) is the antichrist and corporate America is crushing me with their complete submission to all things MS. Thus I have to live with it.

    You agree that some problems and solutions, especially if it involves developing an entirely new “wheel” might rise to the level of patentability. For the most part you are concerned about patents to existing “wheels” that interfere with your ability to create and block you from generating the product you and your customers want. There is a solution that may help everyone from open source to patent lawyers.

    First, I’ll explain the patent lawyer way of claiming software.
    A) copyright won’t work to protect software because it is limited to the code. If you change the code but maintain the same process, you can circumvent copyright protection. Microsoft does this all the time without any innovation or contribution other than to ensure they enforce the code with a hammer.
    B) good software patents are drafted to a process, usually starting with an input going to an output through a series of steps. Think of it as a flow diagram: A -> B -> C-> D-> … -> Z. To get a patent you have to ensure that no one has done A -> … ->Z. Patents with fewer steps are better, but more likely to get blocked by existing art. To infringe you have to do all of the steps A -> B -> … -> Z. That is why most people don’t infringe the patent because they are very specific. In the case of the Amazon One-Click, it would be very easy to design around. Unfortunately marketing guys like the “me too” attitude.

    IF there were a database of software methods with verfied dates of creation, references, etc., that were tied together for everyone to use, then the patent examiners could prevent bad patents. You would benefit by being able to find routines (A-B-C) for your use, some code that enables that routine, and a description of how it works. The Examiner would be able to use these routines to defeat BAD patents. If the Examiner can find ABC, and CDE, through … XYZ, then the patent wouldn’t be issued. As you said above, many of the databases aren’t shared, “There’s a lot of independent reinvention in this area, and it’s quite impossible to say objectively what’s obvious and what isn’t, or to discover prior art (because most of it is never published). Very often it’s applying a familiar technique in a slightly new way.” If there were a good annotated and accurate historical database, then bad patents would be prevented.

    The patent system was set up to prevent “reinventing” and loss of inventions. If you are always reinventing, you may never know there is a better way out there. The patent system makes sure these methods are exposed to the public light for everyone to use. You can review patents to see what IBM, Apple, MS and others are developing. This makes sure they don’t hide the ball from us, leaving two separate systems – open source and microsoft owned. If they get rid of net-neutrality and software patents then we will be further forced to submit to the corporate monkeys to get stuff done and they won’t tell us how to do it without patents.

  124. The process is –

    1) A method of distributing propaganda comprising:
    a) developing an non-existent problem;
    b) using inconsistent statements to support the non-existent problem (a);
    c) deriding a person who identifies the inconsistent statements (b); and
    d) concluding that the non-existent problem needs to be solved.

    2) The method of claim 1, wherein said non-existent problem is software patent infringement suits.

    3) The method of claim 1, further comprising solving the non-existent problem (d) by removing a persons rights to own intellectual property.

  125. What percentage of small business, individuals and programmers have actually been served a cease-and-desist letter? Isn’t there a higher percentage of dying in a car wreck this week?

  126. >What percentage of small business, individuals and programmers have actually been served a cease-and-desist letter?

    It happened to one friend of mine, a brilliant and innovative programmer, and his startup business never really recovered from it. His mistake was probably to file for a patent that brought him to the attention of the patent lawyers in a big company, which is one reason I don’t follow his example. That’s not a statistical answer, but it explains why I regard it as a significant risk.

  127. What patent did he infringe?

  128. Sorry, what patent did he allegedly infringe? I am fairly sure they applied a crappy patent as a hammer and may have been way off base. There are ways to ‘design-around’ patents and/or invalidate patents. Unfortunately, as big companies go, they can and will swamp smaller companies with patents and any other tools they have. Including other legal and illegal means outside of patents. If your

  129. >What patent did he infringe?

    Probably none, it was the threat that did the damage.

    But I don’t have detailed knowledge of exactly who did what and when, and if I did I wouldn’t break a confidence (he was sworn to secrecy – if that’s common practice, then we obviously have no idea how often it happens).

  130. He needs to go the Wikipatents, look up the patent(s) they applied against him, and see if they have any prior art cited against it. Hopefully he contacted an independent IP attorney for the settlement and they analyzed the claims/patent properly.

    He has to look at the terms of his legal agreements and discuss with an attorney. The patent number is a public document not subject to any secrecy agreements. The terms of his settlement however are subject to secrecy agreements. With the caveat that he has to discuss this with an attorney for his own situation (regardless of patents).

  131. This was about 8 years ago. He did all the right things, but it cost him the best part of a year during which time he was losing revenue and market opportunity.

  132. Hi All.
    Check out this new 30min movie: Patent Absurdity: how software patents broke the system http://patentabsurdity.com/ Interviews with Bilski attorneys and critics of software and business method patents.

  133. For pseudo-statistical curiosity, how many other programmer friends have suffered a similar fate? If he’s your only friend (Just kidding) then we have a 50% chance with huge error bars. If you have a hundred friends, that would decrease the error bars by giving us a larger population, although we might not know how many of them are under a secrecy agreement.

    Anyone out there have any idea re number of software cease-and-desist letters sent out? Settlements, trials, etc.?

  134. Nick,

    See above comment 118 about the absurd movie.

    I’ve gotten through about half of this big budget production but had to stop and clean my desk of the coffee that had projectile spurted out of my nose with each more patently absurd proclamation made in the film.

    This was not an amateurish production. Somebody spent the big bucks on it. I wonder who and why?

  135. That’s your problem step back,

    You are not drinking my delicious Kool-aid.

  136. step back – mucho gracious for the advertisment at The Patently-O. I noticed my moniker imbedded twice in your posts.

    When people get thirsty and think of Kool-aid, they will think of me. Ka-ching!

  137. Yes, too many students out there drinking your KooL-HIV product ;-)

  138. Alright, I’m a programmer. I know how difficult it can be. It’s engineering. It might not be hands on, nuts and bolts, but working with code and piecing it together, functionally and formally, is identical in process. No greasy hands, no sweating, no dirty clothes, but people who do office work do tend to get overweight. If no one is payed or given credit for or rewarded for their efforts to produce new software, new designs for machines, then there would be no motivation to produce them. Why work for no pay. Designs are designs, and they’re worth money, whether they’re stored in a computer as a block of text or as a 3d model or as a real life physical prototype sitting on the work bench or as a blueprint on paper in the backroom. In fact, many designs nowadays are stored on computers. They can be worth millions.

    One absurd argument i’ve heard is that since software can be copied readily and cheaply, then it shouldn’t be patentable. In fact, as they tell me, it should be freely made available at no charge. I usually turn this around in my head. For example, if we could copy actual machines, like the engine in your car, for 10 cents, completely accurately, then does that mean that the person who designed that engine shouldn’t be able to patent that machine or get credit for it or charge for its use? The way I see it is that the work that goes into the machine is primarily in the design process, NOT the production process. For example, when an author writes a story and a publisher mass produces the book for a national audience, the actual worth of that book is in the design process wherein the writer thought up the story and sent it to the publisher. The ability to produce 50 books in 10 seconds for $10 dollars on a machine is not the worth of the book. Similarly, the value of art is not in the piece of paper or the tools that were used to make it, but in the creator.

    Valuing the work of the creator(s) is really just about giving credit where credit is due and not cheating them.

  139. >If no one is payed or given credit for or rewarded for their efforts to produce new software, new designs for machines, then there would be no motivation to produce them.

    Sure, designers of software should be rewarded for their efforts. But that applies whether or not the design is novel enough to qualify for a patent. Most software isn’t, and that doesn’t mean the designer should go unrewarded. Designers are rewarded by the income that comes from producing a successful product. That isn’t dependent in any way on giving the designer a monopoly. I’ve spent 35 years designing software, and I’ve never been short of income, despite having no patents to my name.

    >One absurd argument I’ve heard is that since software can be copied readily and cheaply, then it shouldn’t be patentable.

    Yes, that’s an absurd argument. Refuting an absurd argument is a clever tactic in debating circles, but it doesn’t prove anything, especially when it’s an argument you’ve made up for the purpose. You’ll find many good arguments against software patents on sites such as http://en.swpat.org/wiki/Software_patents_wiki:_home_page – there’s no need to invent bad ones.