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Why Open Source Stalls Innovation and Patents Advance It


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: July 5, 2010 @ 6:23 pm
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Over the last couple weeks I have been giving more thought to open source software and what, if any role it has to play with respect to the economic future of both start-up companies and established giants.

My belief is that open source can and should play a vital role in innovation, but the way it is by and large carried forward today does little to forward innovation and an awful lot to significantly disadvantage start-up companies.  The horribly bad advice that pervades the open source community and the utter lack of knowledge or familiarity about patent law is staggering.  I don’t begrudge anyone who doesn’t like the patent system, but can you please at least not like it for a valid reason?  With the myths and disinformation spewed by those who are either clueless and loud, or those who know better and have an agenda, are drowning out rational debate and significantly impeding progress and innovation.

Just the other day I received an e-mail from an individual asking a few questions about my opinions and views of open source software. I had been planing on writing about this for a while, and this is what prompted me to stop thinking and start writing. Nevertheless, one of the statements posed in his e-mail was this:

Most of the Open Source lawyers advise that Open Source projects should not do any patent search around their technology area, because this could make them “knowing infringers” if they miss something or misread something.

I don’t know for certain that this is an accurate statement, but it does ring true with a number of things I have heard, both while observing presentations and when chatting with individuals in the software community.  I don’t know how widespread this advice is, but I do believe it represents one school of thought, and it is tragic beyond words because it is complete and utter nonsense.  Anyone following this advice is in serious jeopardy.

It is silly not to look for patents that you might infringe out of a fear of potentially being a willful infringer. That is just bad legal advice. Willful infringement is exceptionally difficult to prove, and in fact is rarely shown during patent litigation.  Since there is no “ignorance defense” to patent infringement, by not looking to see whether you are or will infringe is naive to the extreme, and will significantly compromise your entire project, perhaps your entire company.  The worst part about it is by the time you know what you have done it may be too late to do anything about it.

The reality of the situation is that far more damage can come from not looking, because even if you don’t look and don’t know you can still infringe.   This is critical to understand, and the reason it is not understood by many in the software community is because they make the enormous mistake of believing that patent law and copyright law are roughly equivalent.  They think that copyrights are adequate to protect the intellectual property assets associated with software, which is simply not true.  Copyrights are extremely limited in scope, there needs to be true copying, meaning if you do not have access to the original and/or you did not copy the original you cannot have engaged in an act of copyright infringement.  On the other hand, patent law is very different than copyright law.  There is no fair use in patent law, and you do not need to copy to be an infringer.  Copyright law allows multiple individuals to own the same rights as long as they independently created.  Patent law provides no such independent creation defense, so the sole question is whether you are doing what someone else has patented.  It simply does not matter whether you came up with it on your own.

If the only worry were copyright law it would make all the sense in the world not to look because if you don’t do a search you cannot have access, and if you do not have access to the underlying work you cannot infringe the copyrights, if any.  With patents because the law imposes what is best thought of as strict liability (i.e., do it and you are liable, no questions asked) you absolutely must know what lies out there otherwise you are just going recklessly going into the unknown and hoping that you (a) won’t do anything to infringe one or more patents; or (b) you won’t get caught if you do infringe one or more patents.  A hope and a prayer together with extreme ignorance is not a business plan; it is stupid!

So what does this mean for open source?  Well, it means if you are on the side of software being free and a bit of anarchist then it is only a matter of time before you infringe something.  You will then complain and moan that the patent system is evil and needs to be demolished all because you didn’t do the responsible thing, the prudent business move of investigating the competition and the market.  That is a YOU problem, not a patent problem.

Stepping back for a moment and looking at the “don’t look” advice from a different perspective, for those who want to do original work, I really don’t know how you can do anything original without knowing what else is out there. If the goal is an artistic or creative one, as is the case with academia for example, the only way to know where to try and make a mark is to endeavor to know the industry and figure out what others have done, and then seek to identify what hasn’t been done. This is one enormously positive aspect of the patent system. While clearly imperfect, when people and companies want to innovate and want to build a business and attract  investors from zero to start-up they seek out the spaces where there are opportunities.

Looking for open spaces to innovate is what makes technology march forward, perhaps more so than anything else.  What drives innovation is the business realities forcing inventors to look for the open space and then obtain a competitive advantage.  Then the next person who comes along has to do the same thing, and so on and so on.  Eventually only minuscule incremental advances will be possible, which typically leads to paradigm shifting innovation, which causes the hut for open space to reset.  The process, and march, is never ending.

Over the years I have taken great flak for saying that those who embrace open source simply want to copy and they are not likely to innovate ever.  Admittedly, the statement is a bit over the top, but not by much.  It could better be said like this — those who believe software should be free and do not search for open spaces to innovate, but rather simply want to do whatever they want without regard to the rights of others are NOT inventors.  They do not innovate, and they never will.  They are blissfully ignorant, turning a blind eye to the world all in the name of expediency.  They are not interested in originality or artistic endeavors, because there is no glory in being second to do something. No one remembers who comes in second, unless perhaps you are famously inept like the Buffalo Bills losing 4 straight Super Bowls.

My beef with the open source community is not with the entire community. It is with those who thwart innovation in the name of some anarchistic vision that enables them to be content with never attempting to be original. Perhaps I haven’t really understood my core hostility and just now. But copying does not advance technology and does not foster innovation.  Copying is antithetical to the patent system and that is what is wrong with so much of the open source community.

The patent system is set up to want massive advances and encourage those by offering exclusivity periods. I have a real philosophical problem with those who want to copy, whether it be intentionally or without knowing. We ought to want to find the open spaces and fill them.  That is what Thomas Edison did, and many thousands of others throughout our history.  If more seeking of the open spaces were going on we could have whole new industries, job growth and an improved economy in the United States.

I have wondered out loud why we don’t have more of a bounce coming off this Great Recession.  Certainly the historical dysfunctionality of the Patent Office prior to Director Kappos has something to do with that.  It seems to me that open source has also lead many otherwise capable individuals to turn away from innovating.  They are not looking for paradigm shifting open spaces and instead toward copying, or simply being blissfully ignorant about whether they are advancing or simply reinventing what others have already invented.  The march forward has ceased in part due to the Patent Office backlog and due to an infatuation with open source and reinventing the wheel.

Lets face it, open source folks are very talented by and large. They write programs that are better than most proprietary programs, but even after many years there is little market penetration. We also see large companies, like Sun, embrace open source and then have revenues plunge by 80%. So obviously something needs to be done differently, and soon!

As you might expect, I have a solution to offer, and will do so in the days ahead.

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Posted in: Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Open Source, Patents, Software, US Economy

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.

 

151 comments
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  1. Forgive me if i come across angry BUT have you every written a line of code, have you ever designed a software application from ground up and delivered it ?

    Alot of applications are made up of thousands of ideas/features. And what your suggesting is that for this one application we may need to do research on hundreds of different ideas.

    Even a small application, something that uploads files to flickr and displays it to the user in a nice way may consist of over 2 dozen techniques and features. Being forced to do research on all 2 dozen of these features and in the process having to work out if patents exist and then what licensing needs to happen… MY GOD no software would ever get written.

    Software is a very creative process, and being forced to deviate from that creative process to do research on possible existing patents for features we’re building sounds like a death blow to software development.

    I look at all the design patents comming out by apple/ms and it scares me that we can no longer build software in the traditional ways (i.e. just writing code and bulding out your app as you need new features)!

  2. I have to admit that I don’t quite follow your arguments. They are not just weak, they don’t seem to be founded in reality. Here is an example. You implied that open source was Sun’s business plan. We know that open source is not a business plan just like freemuim is not a business plan, but rather these are tools within a business plan. I submit that open source server OSs are taking over Sun’s market whether they like it or not. Sun was left with a few options and they chose one and the results are clear. How does calling open source a business plan stall innovation?

  3. @Gene-

    I find it hard to agree with you, because it is open source that those hardest hit are turning to today.
    As for innovation, I offer a few links to current (can be checked) information about what some are doing with open source. I wish to note the respect for open source gos far beyond market; please check the following:

    NSA.gov website, see and click the “Research” tab on home page, then look to the left at the top of the “Research” bar, where the first item is about SE Linux !

    Please read on these pages as well.

    openinfosecfoundation.org/

    ibm.com/linux/ltc/

    mybroadband.co.za/news/software/12773-The-biggest-and-best-run-Linux.html

    I would like to read what you have to offer as well.

  4. Paul-

    Calling open source a business plan doesn’t stall innovation. A name or tag doesn’t change reality. What does stall innovation is pursuing open source and sticking your head in the stand and not trying to innovate.

    -Gene

  5. John-

    I have written code and the fact that you think searching and respecting rights would result in no sotware being written tells me you do not understand patent law and you gave never done a patent search.

    The claims dictate the rights, not the title or text of the disclosure. Perhaps you should read the resources provided on IPWatchdog to educate yourself.

    Software is almost always patentable because if you actually try you CAN do things differently. The lack of basic effort and trying to innovate is stalling innovation on this important high tech area.

    I also would suggest you consider that all businesses could make the argument that they could do anything if they had to respect patents. Many programmers think they should be different, but there is no reason why. The lack of an attempt to respect rights granted is illegal. Not trying to innovate when you can is lazy.

    -Gene

  6. Gene: lets take a look at amazons “one click” patent. How many companies out there would build a shoping cart and allow the user to order/purchase/deliver in “one click”. It’s not difficult to build something like that in software.

    Yet if it wasnt for the publick outcry for that patent i would never have known it existed. And i would have written my shoping cart with that feature.

    How broad and easy to build is that patent, thats what im talking about!

  7. btw and your argument around how easy it is to work around patents, in the case of the amazon “onclick”, we can make it “two-clicks” fine BUT that’s just stupid from a user experience perspective. Why do we need to change the user experience just to get around a patent that is so broad.

    I regularly research patents on a daily basis, and it shocks me to see just how many design patents are approved these days. Some as general as the type of icon to display in a browser when a particular event occurs “like when you navigate to a site that is potentially NON-SECURE”. How are these patents innovative????

  8. New-

    Thanks for the links. I will check them out.

    This article didn’t start as a rant, just turned out that way. It was going to be the “what role should open source play”, but I needed to get out my revelation about what bothers me so much about open source; namely that I see it as inhibiting innovation. I didn’t want the “what role” article to be a rant.

    -Gene

  9. @Gene-

    No rant Gene, I feel in a way where you are coming from; I just wanted to take a different approach and offer something… this time !

    Thanks
    NH.

  10. What a steaming load. I first saw the title of this article and thought “who on earth actually thinks this?” and it turns out to be a patent attorney. Go figure. I fully supported software patents until they became so ridiculous that it became an arms race; in which to even be able to write the most basic software without getting sued eight ways til Friday, you have to have a patent stockpile of your own with which to threaten retaliation. If everything becomes as ridiculously patentable as software, I will make sure to patent my revolutionary new method of taking a crap while sitting down.

  11. IMHO, the “free software,” “anti-patent movement,” “open source” of whatever you want to call it movement is just a tool to shift the power from software innovators to software integrators. Software integrators, like Red Hat, want to be able to use any building blocks they want when they create their software. However, they don’t want to pay the creators of those building blocks for their creations. Instead, they want to be able to use any of these building blocks at no cost to themselves.

    This whole debate can be boiled down to the eon’s old concept of “I want what you got and I don’t want to pay for it.” You can disguise it in whatever high-minded concept you want, but it still boils down to the have-nots wanting what the have’s created — and not wanting to pay for it.

    The term “intellectual property” is distinguished from “tangible property” in that the property is the creation of the mind — not a physical creation. Even at the time of this Country’s creation, some 200+ years ago, the Founders believed that the creations of the mind (i.e., intellectual property) should be protected.

    For a good read on the dilemma faced by an intellectual property creator, check on this blog:
    http://www.jasonrobertbrown.com/weblog/2010/06/fighting_with_teenagers_a_copy.php

    Honestly, I really don’t blame most of the “free copiers.” They grew up in a time when just about anything you could find on the internet was free. You could get free programs, free music, free movies, free porn, free e-mail, free just about everything. Growing up in this environment, why should they expect to pay for something that they can take for free?

    That’s the problem with reality – it bites sometimes. Creators need to get paid for the work they do, and the patent system is the best system we have to ensure that they get paid.\

    My suggestion to any software programmer out there – get used to it because the argument of “I want, for free, what X invented” is not a very compelling argument. On the other hand, the arguments for open software/no software patents get so convoluted that they put all but the most devoted to sleep. In the end, the one who wins the debate is the one who is best able to frame the question to be debated. On my side, the question is easy to frame such that almost anybody can understand. Ultimately, this is why software will remain patentable – we have easy (and understandable) arguments to make.

  12. I have a very simple explanation to your consideration and I can give a very simple example as illustration.

    Explanation: You can’t know what to look for. Where and why would you look for a possible infringement? Apart from the obvious problem that, as a software developer, you can’t really have an idea about what in all your designs could already be patented, if you actually got that weird idea to start searching for something in your code you would likely find plenty of “infringments”.

    Example: In 1981 I had done my basic education, MSc in engineering physics with specialization in computer science, and I did my master thesis project at ASEA in Sweden. This my first programming project was about performing graphical transformations on an industrial display system. The job went fine, and after the MSc project I got my employment there. In 1990 I visited Boston and MIT and there I had the opportunity to meet Richard M Stallman, the founder of the free software movement, the creator of GPL, the most important software license in the world. He told me about software patents. It was the first time in my life I had heard about software patents, and I had then been working as a software developer for almost 10 years. Soon after that I became aware that two very simple and obvious software constructs I had used in my MSc project 1981 actually were patented at that time, OK, one wasn’t applied yet, but was filed one year after my project. The two patents were USPTO patent 4070710 filed 1976 “Method for dynamically viewing image elements stored in a random access memory array” and patent 4555775 “Dynamic generation and overlaying of graphic windows for multiple active program storage areas” filed October 1982.

    OK… now I really started to understand that software patents is something which just couldn’t work. If things like this could be patented, then anything could be patented.

    Now you will certainly say that these patents are accidents, they should never have become patents, but how about this one then? USPTO patent 7028023 “Linnked list” and then Abstract (complete) “A computerized list is provided with auxiliary pointers for traversing the list in different sequences. One or more auxiliary pointers enable a fast, sequential traversal of the list with a minimum of computational time. Such lists may be used in any application where lists may be reordered for various purposes.” This is filed 2002 and granted 2006.

    Who in their sane mind would in the first place get the idea to apply for a patent like that, and who in their sane mind as a software developer could imagine that someone would have applied for a patent like that. That particular construct described there (a way of speeding up linked list traversal) I’ve used several times in my programs both during 80-ies and 90-ies.

    It is first when you come to that level like the Karmarkar’s algorithm you could possibly motivate patents, that is something truly inventive. Instead there are very simple ideas that gets patented, like the ones I described above, and e.g. Acacias video-streaming patent, which has caused a lot of trouble for media developers. Software patents tend to be more about the simple idea instead of a particular implementation, thus they become ridiculously broad, and can not be invented around.

    How could you imagine a patent examiner being able to judged whether the application would be a patentable one? You don’t find professors in computer science too become patent examiners. All the professors in computer science I know highly oppose the idea of software patents.

    So, the particular problem you state is not about open source or free software.
    The problem is that there is no way, you can possible examine your software for possible infringements, and if you start doing this, you will certainly find plenty of cases, for every reasonable sized software project, proprietary or open source in the world.

  13. I have a very simple explanation to your consideration and I can give a very simple example as illustration.

    Explanation: You can’t know what to look for. Where and why would you look for a possible infringement? Apart from the obvious problem that, as a software developer, you can’t really have an idea about what in all your designs could already be patented, if you actually got that weird idea to start searching for something in your code you would likely find plenty of “infringments”.

    Example: In 1981 I had done my basic education, MSc in engineering physics with specialization in computer science, and I did my master thesis project at ASEA in Sweden. This my first programming project was about performing graphical transformations on an industrial display system. The job went fine, and after the MSc project I got my employment there. In 1990 I visited Boston and MIT and there I had the opportunity to meet Richard M Stallman, the founder of the free software movement, the creator of GPL, the most important software license in the world. He told me about software patents. It was the first time in my life I had heard about software patents, and I had then been working as a software developer for almost 10 years. Soon after that I became aware that two very simple and obvious software constructs I had used in my MSc project 1981 actually were patented at that time, OK, one wasn’t applied yet, but was filed one year after my project. The two patents were USPTO patent 4070710 filed 1976 “Method for dynamically viewing image elements stored in a random access memory array” and patent 4555775 “Dynamic generation and overlaying of graphic windows for multiple active program storage areas” filed October 1982.

    OK… now I really started to understand that software patents is something which just couldn’t work. If things like this could be patented, then anything could be patented.

    Now you will certainly say that these patents are accidents, they should never have become patents, but how about this one then? USPTO patent 7028023 “Linnked list” and then Abstract (complete) “A computerized list is provided with auxiliary pointers for traversing the list in different sequences. One or more auxiliary pointers enable a fast, sequential traversal of the list with a minimum of computational time. Such lists may be used in any application where lists may be reordered for various purposes.” This is filed 2002 and granted 2006.

    Who in their sane mind would in the first place get the idea to apply for a patent like that, and who in their sane mind as a software developer could imagine that someone would have applied for a patent like that. That particular construct described there (a way of speeding up linked list traversal) I’ve used several times in my programs both during 80-ies and 90-ies.

    It is first when you come to that level like the Karmarkar’s algorithm you could possibly motivate patents, that is something truly inventive. Instead there are very simple ideas that gets patented, like the ones I described above, and e.g. Acacias video-streaming patent, which has caused a lot of trouble for media developers. Software patents tend to be more about the simple idea instead of a particular implementation, thus they become ridiculously broad, and can not be invented around.

    How could you imagine a patent examiner being able to judged whether the application would be a patentable one? You don’t find professors in computer science too become patent examiners. All the professors in computer science I know highly oppose the idea of software patents.

    So, the particular problem you state is not about open source or free software.
    The problem is that there is no way, you can possible examine your software for possible infringements, and if you start doing this, you will certainly find plenty of cases, for every reasonable sized software project, proprietary or open source in the world.

  14. @Just visiting

    “the “free software,” “anti-patent movement,” “open source” of whatever you want to call it movement is just a tool to shift the power from software innovators to software integrators.”

    Who cares ?
    The choice to use open source and the demand for it as a result, are changing things. Your statement if I read it right, is about some power shift on the basis of a claim, that innovation is on one hand ? Want to litigate ? go for it, show real force – power and kill choice and get those patents on a paying basis again.
    The links I gave Gene were to allow anyone to see, that, large Corps and Government are changing as well… it happens.

    IBM for example has been a Linux community member now ten+ years; Don’t care ? note, IBM a Corp that has one of – if not the largest – complete sets of patents of any Corp in the USA if not the world… odd ? IBM Found no reason to litigate ten years ago; because real insight led to a relationship that works even today.

    The NSA, working with the open source community, working close because, the downloads of SELinux that includes their work, is returned under the GPL license to the community… odd ? Seems the NSA finds nothing wrong, why would they be doing work if they did ? Answer, its another case of a relationship working. Providing security tools for many OSes, those OSes making money providing better security overall that Corps companies, pay for !

    Top 500 Super Computers, 455 using Linux. Such computers paid for and used by large Corps and Government. Note, Movie animation studios, own server-farms for rendering. Most now are running Linux. The point here is that they are using open source to run their non-open source software on making money creating jobs, and movies people will pay to see.

    There are no arguments, patents do not own the world no matter how much some want them to.

  15. The title of this article is “Why Open Source Stalls Innovation and Patents Advance It” You state in the second paragraph that, “My belief is that open source can and should play a vital role in innovation, but the way it is by and large carried forward today does little to forward innovation and an awful lot to significantly disadvantage start-up companies.” So, that’s what you believe. You offer no supporting financial or social model to support this hypothesis. I am not a lawyer, but that doesn’t look like much of a summation to me, particularly coming from one who is a lawyer.

    Then you say, “Looking for open spaces to innovate is what makes technology march forward, perhaps more so than anything else. What drives innovation is the business realities forcing inventors to look for the open space and then obtain a competitive advantage. Then the next person who comes along has to do the same thing, and so on and so on. Eventually only minuscule incremental advances will be possible, which typically leads to paradigm shifting innovation, which causes the hut [sic] for open space to reset.” You offer no reason or model which causes the hunt for open space to reset. So, “eventually only miniscule incremental advances will be possible”, according to your statement. That reasoning is in contradiction to the title of the article. The remaining bulk of the article is basically chiding programmers for not doing research on existing patents and patent law. Pardon me for stating the obvious, they are programmers, not lawyers.

    You then proclaim that “Over the years I have taken great flak for saying that those who embrace open source simply want to copy and they are not likely to innovate ever.” And, “But copying does not advance technology and does not foster innovation.” Does the phrase “build a better mousetrap” mean anything to you in legalese?

  16. “Forgive me if i come across angry BUT have you every written a line of code, have you ever designed a software application from ground up and delivered it ?”…

    John,

    I see this so many times, it seems like a truism – as Bill Clinton suggested, if you say it enough times, everyone will start to believe it. Software people say that patent attorneys have no idea what it takes to make a software application, and that it is near-impossible to do so with software patents in place. Other forms of this meme are: “All software experts agree that software patents are terrible”, “Real coders don’t like patents”, etc. And of course there’s always Stallman: “Software wants to be free”.

    This viewpoint is so pervasive that many software engineers I work with think it is self-evidently true. So let me provide a counter-example:

    I have seven issued software patents, and nearly 30 pending. I was a Distinguished Member of the Alcatel-Lucent Technology Academy when I was there. I have coded – a lot. I have also been CTO of two $300M software companies, and I am the CEO of a 60-person software company today. I also practice patent law as an agent (i.e., only dealing with the PTO), and represent both software and non-software clients. I read The Cathedral and the Bazaar, and I am very happy that we have (some) open source. I have as many techie books as I have law books – and I love them all!

    So I am an active member of the patent bar, but I am also a very experienced software guy, and I have held senior technical roles in nuclear engineering and semiconductors. Inwould stack my street cred as a problem solver and inventor against anyone. And I got into patent law ten years ago because I saw the need for people who understand the law and the software business, and I enjoy having knowledge and an active presence in each of the business, technology, and legal areas of high tech. I taught myself patent law, so I haven’t been “brainwashed” by any law school (not that I think that is what happens at law school – I just never gave it a thought when I was younger and would have been inclined to go…).

    And I DO NOT agree with the casually thrown-around statements above concerning “what all software experts think”.

    I want to forcefully assert that software patents are important. There is a serious lack of business experience with patents in the software field, but it is getting much better. There are serious issues with patent quality, and the PTO is working hard there, with some good results. And Congress is considering patent reform (a mixed bag in my view). None of this is that unusual for an industry built around a dramatic new technology area, and it will all improve with steady effort.

    If patents are a valuable stimulant to innovation (I believe they are, and I have real first-hand experience to back that belief up), then they are no less so in the software field than in any other. Either love patents or hate them, but do it uniformly across all technology-centric industries. It’s not as hard as you think, John, to live in a patent-heavy area of technology. It just requires attention, and proper business processes, just like any other area. Building a great software company is hard, and why shouldn’t it be? They are worth millions (or billions), after all…surely they are worth the effort?

  17. So, Gene, you are selective in your approval… @Just visiting has submitted later than me, and is approved, despite my comment is a direct response to your comment.

    I wonder, are all pro software patent people like this? (selective moderation is a crime, at least a moral one)

  18. Flamebait.
    Not biting.

  19. I think this was an excellent piece of work, proving how crucial the state of the patent system in the US will be. My impression it that the following quote sums up your main argument: “That is a YOU problem, not a patent problem.” In respect of your role nobody would expect you to criticise the current patent system. Still it’s surprising to see no trace of interest in making the patent system better adopted to current technology and hence make it more efficient. Therefore it looks like we’re discussing a dogma, the infallible patent system of the US.

    However we look at the patent system it’s not a secret that we do have patent trolls. The system is open for such violations of what historically was “set up to want massive advances and encourage those by offering exclusivity periods”. To not evaluate whether the historical purpose can be fulfilled when facing at the time unknown implementations of technology is unproductive.

    Even if we would agree that the current patent system isn’t top notch, an even bigger problem haunt every use of it. There’s no resources to process all applications and hence we have a huge pile of worthless patents, patents that wouldn’t stand a trial. You could argue: if they won’t stand a trial and be proven valid the problem will be solved by itself! Yes, as long as the parties are equal in power. Often they’re not and hence the impotence of processing patents too often kill innovative companies which lacks the economical powers and alliances to stand up against patent attacks.

    Your idea of examine patents to make sure you don’t infringe any existing patent is extremely costly. It’s not only about looking for patents, but also estimate their validity and your resources to defend your innovation against flimsy and ridiculously broad patents. You can’t deny how plentiful these invalid patents are, but how powerful they are to keep weaker companies off the competition. Those invalid patents are extremely cheap, since you by them invest in innovations you don’t have the mind power to figure out yourself.

    The chosen title doesn’t correspond to the content. Your arguments lacks substantial relation to innovation. Your arguments focus on how to honour the patent system, assuming that innovation is an inevitable result of the US’ patent system. US might have been the driving force of the world economy, but the balance is shifting and for every step of change the US’ patent system loose relevance. How will the US uphold it’s status of an innovative country when the momentum of being the driving power is gone?

  20. OMFG, I patented words “Open Source” and “Patents Advance” in heading of an article…
    Prepare to be sued…

  21. Sorry about my previous comment, it was of course “New Here” I was referring to, not “Just visiting”

  22. The point, New Here, is that you go on blithely unaware of patent law at your own risk.

    Have another big glass of Kool AId if you think Open Source isn’t keeping an eye on the patent world. They are.

  23. Actually, making good things that people want is the surest way to get paid for your content. There’s simply no evidence that the patent system is the most effective way to ensure either innovation or profits. The fact that you conflate open source with free software shows you don’t fully grasp the concepts. The free software folks aren’t keen on open source. Open source involves a license that limits certain uses, and that license has helped generate profits for companies like Sun and Red Hat, who have adopted open source profitably. The bargain is a private contract between developer and user, rather than a government-sponsored monopoly. It’s cheaper, more efficient, and doesn’t require attorneys fees or filing fees. Open source works, that’s why people use it to develop and release their products.

  24. Gene,

    Actually, as I understand it, open source really isn’t “free.” Admittedly, this understanding is based on 2 open source seminars I’ve attended here in Cincinnati (one of the speakers is Bruce Perens of “Busy Box” fame or as I call him “Mr. Open Source”) that have given me at least a working knowledge of how open source licensing works, and open source licensing imposes significant obligations on the licensee. Put differently, it isn’t free.

    I’m also coming to the view that open source and the patent world can live together, each having their own “sphere of influence.” I may not agree with those in the open source world who view patents as the “evil empire” but I also don’t view open source as not having an important role to play in software development. Again, I believe these two worlds can exist together, perhaps not in “peaceful co-existence,” and probably being more in favor of one as opposed to the other. It’s just a matter of degree to me.

  25. “There’s simply no evidence that the patent system is the most effective way to ensure either innovation or profits.”

    Except that every country in the civilized world has a patent system despite having a wide variety of other legal/political/economic/ systems.

    FYI, the same argument could be said about capitalism and democracy. The “most effective” system probably hasn’t been invented yet. However, it doesn’t mean it is not more effective than anarchy — which is closer to the approach you want.

    As for the difference between free software and open source, open source is just free software-lite. Ultimately, the goal is the same … I want what the other guy has without paying for it. I don’t that most people using open source realize what the open source license entails because the vast majority haven’t read it.

    Let’s not fool ourselves, “Open source [is free], that’s why people use it to develop and release their products.”

  26. @Blind Dogma

    BD when demand shifts, its not about any one group or an individual. If you had asked me 10 years ago what I think of the future of open source, I would have answered limited ! In the past 10 years many things have changed and I was wrong. You must believe I have not lost because of open source ? If you do, you are wrong as well. Change is the hardest thing when you have to do it !

    Just FYI:
    Here is another link, also supporting “open source” development.
    http://www.codeplex.com/
    When there, see the copyright at the bottom of the page.

    Its all over the place and growing, and the good question really is… who is watching who ?

  27. “Well, it means if you are on the side of software being free and a bit of anarchist then it is only a matter of time before you infringe something. ”
    Most big software companies have infringed something. Microsoft has been sued multiple times for patent infringement, and engages in cross-licensing on a regular basis. Half of the smartphone market is still in a legal battle, so it’s obviously not a simple matter to avoid litigation. It may be possible in some cases, but the alternatives may be impractical, and if someone else is able to independently come up with an idea, often in an unrelated field, perhaps said idea was too obvious to be patented in the first place.

    “Copying is antithetical to the patent system and that is what is wrong with so much of the open source community.”
    i would heartily disagree. The point of the patent system is to eventually have ideas that are worth copying, so the public benefits. That’s why we aren’t paying the estates of Thomas Edison today, despite the big things he invented (Nikola Tesla was arguably a much better inventor, though, and criticized Edison for having to accomplish things through endless trial and error instead of theory and calculation, claiming 90% of his effort was wasted).

    “There is no fair use in patent law, and you do not need to copy to be an infringer. ”
    And that’s one of the biggest concerns with the patent system. Fair use and other exemption are perhaps the most important elements of the copyright system, and America’s strong fair use protections are responsible for a lot of great work, including Wikipedia, one of the biggest collections of human knowledge, which relies on fair use, and quite possibly couldn’t have manifested outside of the US.

    I would also say your claims of FOSS innovation are off. There are needs for interoperability, which is perhaps the most important element to modern computing, and there is oneupmanship, taking someone’s idea and making it better.

    Also, your claims of open source adoption are off. High end computing runs nearly entirely on Linux, and various GPS devices and set top boxes like Tivo use Linux. Numbers are highly variable, but Steve Ballmer claimed that 60% of servers run Linux while Windows had 40%. Apache is the most popular web server. Firefox and Chrome are the second and third most popular browsers, and Safari and basically all mobile browsers are still built on the FOSS webkit engine.

    Finally, your claims that opponents of software patents are not innovative is bunk. Donald Knuth, essentially the father of algorithm analysis and many other important things, such as the TeX typesetting system that is predominant in scientific documents, and Tim Berners-Lee, creator of the web and the first web browser, are both opponents of software patents.

  28. @EG

    You have a better understanding, so I will add: That “free” in Free Software, while you’re right about it has licensing that have limits; the use of the word is no different in its use saying “free Country”, that we all know really has Laws, and limits on behavior in public for example. I feel the word “free” in Free Software has been misunderstood, to meaning without limit, that is simply wrong.

    NH.

  29. The interesting thing to me about open source — apart from the creative possibilities inherent in collaborative software development — is how many of the companies developing open source software are now starting to patent their products as well. Look at Red Hat.

    The reason they patent, of course, is the same reason proprietary software firms patent: to protect their value-added features that differentiate them in the market. Betweeen 60-85 percent of new additions to the Linux kernel are being contributed by corporate rather than hobbhyist developers today. And corporate developers, as a rule, develop in order to make money — they’re a business, after all, not a religious or political movement.

    Two years ago, Matt Aslett of the 451 group estimated that 50 percent of open source vendors were employing a hybrid proprietary-open source development model — called “mixed source.” And 60 percent were employinmg traditional intellectual property licensing models.

    Those who still maintain that the future of software should “free” are like the utopian socialists of old, whose beautiful theories got bludgeoned by the realities of the market and of human nature.

  30. Good article – appreciate the perspective. Quick note: I think “hunt” was intended in the sentence about resetting the “hut for open space”.

  31. @Bobby

    I only will say I wish I had said it !.

    The winners and the losers in all this will be decided by the Markets for software and more. The winner being recognized for growth potential, innovation being something all, user and developer, create together. Not the distractions of the limited ideas on growth, by protections that have innovation under censorship that seriously prevents or otherwise serves as a deterrence to thinking.

    As more large business and small, enjoy the opportunity to think and create, serving the needs of customers and clients doing business with more predictability about the future. I see the focus on open source shifting again to a focus on developments shared with the responsibilities to maintain individual cooperation, relationships with business large and small, and interoperability the primary glue.

    What is happening is far too large to control, more litigation will only shine more light on the direction now being taken, as one that is working. This is not just a USA thing, its world wide, different Countries taking the direction home and adding even more to the reason for others to take the direction as well.

  32. Adam-

    You say: “So, Gene, you are selective in your approval… @Just visiting has submitted later than me, and is approved, despite my comment is a direct response to your comment.”

    Sorry for the inconvenience. I know you are new to commenting and this probably does look odd, so allow me to explain to you and others the basic rules (which I do from time to time to help foster an environment of thoughtful debate).

    In an attempt to keep the debate substantive, free of spam and honest I have some rules built into the comment system that capture some comments before they go live. There are the default spam filtering that captures a lot, but in addition I have the following special rules set up:

    1. If you have never commented before your comments go into a queue that must await approval. Once you have one comment approved your comments then go live, bypassing this queue unless a filter catches it.

    2. There are certain words that will land your comment in the queue that requires pre-approval. Over time we have learned that the filter software does a string search, so harmless words sometimes cause a comment to require pre-approval.

    3. Up until the other day if your comment had 1 link it required pre-approval to go live. Now it is 2 links. This should assist the regulars who will frequently want to provide a link to an alternative viewpoint or just to interesting information.

    Aside from this, there are also people who have been banned. While I am happy to tolerate opposing views, those who lie are not welcome. The quickest way to get banned is: (1) providing obviously incorrect legal advice on an article aimed at a non-attorney audience; (2) spamming; or (3) personal attacks without substance. With respect to this last point, I tolerate a lot, even some personal attacks, as long as they come with substance. Heated debate is fine. Keeping it honest and intellectual is best. Naked personal attacks will not be posted. For example, there is a difference between saying “that is an intellectually dishonest statement that is factually incorrect” and saying “that is stupid, I hope you die.” The former is allowed, the later will get you banned.

  33. David-

    You are right, open source is not the same as free software. I know that, and you know I know that.

    You continue to say that there is no evidence that the patent system is the most effective way to ensure innovation, yet you have never to my knowledge addressed the critical question in any thread or anytime you raise this argument. Why then do those countries that do not have patent systems not have thriving economies? Why do countries that adopt a patent system build thriving economies? Where does the investment come from if there is no patent system to attract investors?

    Of course there is plentiful evidence that a patent system increases innovation. The fact that you want to ignore the proof doesn’t mean it isn’t there or doesn’t exist. It just means you choose to ignore all of the evidence against your position.

    With respect to Sun, do your homework. When Sun openly adopted an open source business plan their profits fell from many billions of dollars to well below a billion dollars a year. The open source model is one that forces revenue to be dependent on service, and there are only so many hours in a day. Pure open source models are the surest way to kill revenue and profits. That is why increasingly entrepreneurial companies are looking for hybrid models and want to build on what open source does best and not at like it is in and of itself the solution.

  34. Gene,

    On a similar sort of note, how many patents simply combine different features or processes that are already known (and even patented), and then claim unexpected results? Or how many simply narrow down the parameters of a known process and show unexpected results? Would you say that the inventions in those patents are not innovative? Many of them are printed every week.

    In my view, there’s no point in writing your own code to establish your routine when you can use an open source to establish the same thing. Open source certainly hurts the business of many software companies (and thus also that of patent attorneys), and I don’t think anyone will realistically argue that it doesn’t. Lots of people use open source as their own free toolbox, and this is not necessarily innovative, but would those people have innovated anything anyhow? Consider, however, taking different features of open source software and combining in unexpected ways is every bit as innovative as a significant portion of all granted patents in the USA.

    To use an analogy, would you buy ground beef and bread when you can easily go out and get a free hamburger? Probably not. If you wanted to make a better hamburger, then yes, you probably would buy (or make your own) ground beef and bread, but that doesn’t stop you from also tasting the free burger as a comparison for your own burger, or just to satisfy your needs (hunger) for a while. Yes, a lot of people will grab the freebie, be happy with what they have (and the state of the art of hamburgers in general) and rest, but that hardly stifles the person who wants to make a better burger from innovating. Surely it discourages people from BUYING his burger. Open source is great if your needs are relatively simple – like a hamburger; straightforward, and not really new. People will get sick of the free burgers, or want something better or different, and burgermakers will still try to perfect their art, both to get customers and to appease their own industry.

    To use another and even more oversimplified analogy, any freshman business student knows that there are only two basic business strategies – price and differentiation. That’s it. There are no others. If someone is undercutting prices, that doesn’t stop someone else from differentiating. and that is where innovation comes into play in business. If open source is free, that does not stop people from writing new code, to solve new problems or just to better solve existing ones.

    For me, my beef is with the media, who proudly print things like “Microsoft patents sudo.” Of course that’s not really what MS patented, but the person who wrote the headline didn’t read past the abstract, and the people who should know better are only interested in shocking people so that they can get ratings/readers. Some of those people who fervently re-posted that headline all over the internet did indeed know better, adn had an agenda, but the layperson didn’t. AS a sidebar, this is a big reason why the JPO has the claims at the front of the document, instead of the end, as it helps the layperson (who may be laying eyes on a patent for the first time) to understand what exactly a patent is, and puts the “meat” of the patent right up front.

    But there I go rambling again . . .

  35. Open source works in some markets, not others.

    Patents and other proprietary rights work in some markets, not in others.

    Viva la difference.

  36. The Unix Industry
    Ed Dunphy Published: 1991, QED Technical Publishing Group.
    (C) Copyright Ed Dunphy

    Take the time to find and read this book, especially a title within the book:
    “Unix creates momentum for an “open systems” Industry”

    “True open systems will go far beyond communications and the operating system. By the end of the century, open systems standards will include virtually all areas in which technology can be seen as a commodity”

    Read on, a list is given on “why users want and what they expect”.

    The point of this reference to this book, is that the book, it pre-dates Linux arriving to take attention. Linux that did kick off the whole ball rolling when taking open source – Free Software. Note Unix then came with the source code, when licensed ! This should be one of many readings for patent people to understand why over the past 20 years, mostly over the past 10 years, so much was just sitting there to be patented… software I mean. Before, people created, most of the tools today used by all were born at a time, when patents didn’t make threats. We need to remember this earlier time, its a past open source and proprietary share.

  37. Freedom provides the more creative environment in all areas of human endeavour- not a restrictive one, such as that imposed by patent law.

    -

    Perhaps even more stifling to innovation than patent law is a patent lawyer blogging about the merits of software patents.

    In stark contrast to all the convolution and FUD in this blog and some of the posts here about plagiarism, socio-economics, and how wonderful intellectual property patents are when imposed upon software developers, I am left but to say;

    Thank goodness for the Free Software Foundation!

  38. Free-

    You say: “Perhaps even more stifling to innovation than patent law is a patent lawyer blogging about the merits of software patents.”

    Please substantiate that claim. I know you are probably not used to being called out when you make clearly ridiculous statements, but if you are comfortable using a fake e-mail and wanting to stay anonymous, can’t you at least be intellectually honest enough to support your positions with facts and argument?

  39. You seem to have built an entire post (and then an entire argument about an entire industry) on a single somewhat dodgy piece of advice.

    Yeah, I’ve heard a couple of people give that advice. Internet in ‘sometimes people say daft things’ shocker! But those who are actually clued up on the issue do not give such advice, I can tell you this from personal experience. That includes the legal departments of all major open source companies, who – obviously – employ actual patent lawyers who know what the hell they’re talking about.

    Practically speaking, though, as an earlier commenter correctly pointed out, it’s just impossible for most coders to actually research whether every single process they use in an application is subject to some garbage patent taken out in 1983 which would, under some interpretation, cover all ‘Open’ dialog boxes or something. There are literally thousands of ‘processes’ in any given bit of software, and thousands of process patents out there. How is Joe Developer supposed to check, and correctly interpret, every single one? It’s just not going to happen.

  40. Chris-

    You say: “On a similar sort of note, how many patents simply combine different features or processes that are already known (and even patented), and then claim unexpected results? Or how many simply narrow down the parameters of a known process and show unexpected results? Would you say that the inventions in those patents are not innovative? Many of them are printed every week.”

    Yes, patents can and do combine different features already known. That is hardly newsworthy though. Virtually everything is a reordering of things that previously exist. Thomas Edison would have been no one particularly important had he not been able to improve the work of others, building on it. The question is now whether there is a combination, but whether the combination is non-obvious. This is getting harder and harder to demonstrate. The fact that the Patent Office, with their permitted 15 hours of review per application or so, makes mistakes every week means they make mistakes every week. Pointing to the mistakes or anomalies doesn’t seem productive to me. We all know they exist. I will, however, grant you that something that is ridiculous and is really obvious is not an innovation. When working properly those are the things that are supposed to get weeded out, and by and large they do. The trouble today is far more surrounding over weeding out rather than under weeding out.

    With respect to the rest of your comment, you are by and large on target (in my opinion). The question is figuring out what open source can be useful for.

    Not that this is addressed to you, but I really can’t understand why what I said is creating a stir. It is obviously true. If you don’t look for what is out there and you don’t try to identify and fill the open spaces then you are not innovating, but rather copying. Those that look for the freebie, as you put it, are not figuring out how to do it themselves in an original way, they are copying. Just like the “inventor” who pulls together pieces and parts and arranges them in an obvious way, there is no invention. There is no originality. Despite what my critics think (see TechDirt) you simply cannot innovate if you add no originality. Originality is the cornerstone of innovation. It is not innovative to do what others have already done. Although it is new to you, it is not objectively new.

    Thanks for your comments.

    -Gene

  41. Adam-

    Your are being intellectually dishonest, and frankly I would like to know why. You say that the advice is “dodgy” and then incorrectly claim that those giving it know what they are talking about. Yet, I lay out exactly why it is bad advice and why there is far more to lose by not looking than by looking. Obviously those giving this advice do not know what they are talking about, and that was the point of the article. The remainder of the article was to point out blow by blow why copying the work of others infuses no originality and why copying is not innovative.

    You then say that there are too many patents to look through and programmers just aren’t going to do that. Fine. That is what makes the world go around. There are those who respect the law and those that don’t. Those who ignore their obligations get what they deserve when they get sued, so embrace your desire to not look and then be prepared for the reality that the company and software you build residing on shifting sand.

    The reality is it is not impossible, and the Chicken Little act is getting really old. Programmers whine and complain that it is too much work to follow the law and respect property rights. It is quite amusing really. It is also factually incorrect. Doing a quick patent search to identify what is out there results in a handful of references that matter to any software program. There are not thousands that are relevant. Whenever I do a patent search for software it invariably winds up being about 3 to 5 references that really need attention. So if you are going to play the part of Chicken Little can you at least be factually correct?

    Have you ever done a patent search? Do you even know which parts of the patent you need to worry about for determining if there is infringement? Do you know how to identify where the open space resides? Are you capable of pulling an innovation out of a disclosure that otherwise looks as if it is dead in the water? I do these things all the time, and I can tell you with 100% certainty that virtually every software project has patentable aspects. The failure to seek the innovation is what is offensive, and exactly what impedes innovation.

    -Gene

  42. - Gene

    You make baseless claims in your response to Adam. You can’t honestly mean that patents only represents original creations. That “copying the work of others infuses no originality” is a pointless argument, when the patent system of today consists of all kinds of vague patents with no real substantial originality. The “if you click twice then that will happen” is just as good as “if you lick you finger before changing page”. Stupid patents infuses no originality as well, they just serve hooks for future legal battles.

    It seems like you’ve never understood that open-source companies and alliances collect sane and crazy patents just as other companies do. Do you they do that to advance innovation? No, it’s simply a weapon to use against patent trolls or opportunists looking for easy money. Hence your calculation should at least include a X % of resources wasted on patent protection instead of innovation.

    The respect the law argument is ridiculous. Your address individuals and organisations that make original work, but at times get “caught” by unknown patents, or in many cases more precisely generous interpretations of patents, like they were pirates. Your choice of wording suggest your main interest is to protect a system that benefits some. The arguments about innovation hence looks more like an attempt of giving this agenda a righteous label, that gets lost when you suddenly turn it into a blind case of law. In fact you follow a line of arguments that logically leads to a conclusion you don’t want. You can’t argue about virtues if you’re not open to discuss the quality of the patent system itself.

    You speak about patent search as if it’s the simplest thing in the world, and still the proprietary industry is engaged in constant patent wars. It looks like nobody really knows how to successfully honour the patent, or should we by your logic conclude that proprietary companies stall innovation because they seem incapable of figuring out a way of dealing with patents? Who’s left? The ones who advance innovation is neither open-source or proprietary. That’s the unavoidable conclusion of your reasoning, meaning that the patent system by itself has to innovate. This is absurd, and still you’re not open to discuss the current state of the patent system.

    On the other hand why bother, since you say that “with 100% certainty … every software project has patentable aspects”, meaning that your work is 100% guaranteed to be safe for many years to come. We can at least be thankful that the patent lobby weren’t as strong when some tried to patent book printing. If that would have happened we would probably be hindered by patents to comment, or maybe you wouldn’t even be allowed to write the article. No I’m wrong, we wouldn’t even have reached this level of technology.

  43. I absolutely love the fact that your very own blog is built upon WordPress, the worlds most popular blogging platform AND very Open Source indeed :)

  44. Laander-

    Can you please elaborate as to why you love the fact that I use WordPress?

    We have gone over this many time here. Why anyone pays for something that is free and works is beyond me. The fact that I use open source has nothing to do with the fact that open source thwarts innovation. Everything I said above is 100% correct, and those who oppose it are fooling themselves.

    -Gene

  45. Gene:

    Congratulations, you’ve really stirred up the hornet’s nest. The open source beatniks are coming out of the woodwork. What is amusing to read is the abject ignorance of many of them. Granted, I didn’t know anything about patent law before I became a patent attorney, so I really don’t blame them.

    Frankly, I would like to address more points, but I have software patents to obtain for people.

    In a comment addressed to many people — patents have expiration dates. They don’t last foreover. Second, what a patent covers is in the “claims” … not the abstract or the title. Titles of the Inventions are typically short, and thus very broad — almost always far broader than what is being claimed. As such, don’t take a title such as “dynamically configurable portlet” to mean that the patent is intended to cover all dynamically configurable portlets — instead, the more likely senario is that one particular implementation of dynanically configuring portlets is being claimed.

    Almost all the complaints about software patents could be raised by people in other technologies. However, it is the software folk that are the biggest complainers — again, my theory is that most of the software folk came of age in a time when getting free software of the internet was the norm. As such, there is this innate aversion to paying for software.

    FYI … if someone tried to patent book printing it would have been done centuries ago — and the technology would be ineligible for patenting now. The great thing about patents is that it allows people to talk about their technology (in trade conferences or via published papers) without worrying that the next guy will steal their work.

    Finally, unless (i) you are distributing a lot of copies of your software or you; (ii) you are really dumb; and/or (iii) you are running enterprise software and generate a lot of revenue off of it, the odds are really great that no one is going to sue you.

    Now excuse me, I need to generate some more patents.

  46. Kim-

    Where to begin. It is obvious that you are new here and you have not read any of my writing, save perhaps this article, although it is unclear to me whether you finished the article.

    1. You say: “You can’t argue about virtues if you’re not open to discuss the quality of the patent system itself.”

    Please read my writings. I discuss the quality patents and lack thereof all the time. The fact that you don’t know who I am or what I stand for or that I write and challenge the patent system and point out its failings regularly is not a me problem, it is a YOU problem.

    2. You say: “You can’t honestly mean that patents only represents original creations.”

    I never said that, and if you had read the article and my comments you would know that. What I have said is that copying the work of others does not infuse any originality. That is a true statement that you cannot argue if you are being intellectually honest. I have also said that the “don’t look for fear of finding” advice is ridiculous and likely to lead to far greater legal problems. Again, 100% true, regardless of what you want to believe or the bad advice that others provide that you seem to want to follow.

    3. You say: “proprietary companies stall innovation…”

    Yes, we agree, at least in part. Proprietary companies promote innovation by looking for the open spaces that can legitimately support protection and pushing the envelope. Mega-giant proprietary companies stall innovation by advancing positions and standing in the way of patent reform that would protect innovators. The open source community frequently says “even Microsoft knows…” and things of the sort. When was the last time Microsoft ever took a pro-innovation or pro-small business or pro-start-up company stance? Never. Yet their objection to the patent system is evidence. Evidence of what? Evidence that it poses a threat to well established companies that through thick bureaucracy have lost the ability to innovate.

    4. You say: “We can at least be thankful that the patent lobby weren’t as strong when some tried to patent book printing. If that would have happened we would probably be hindered by patents to comment, or maybe you wouldn’t even be allowed to write the article. No I’m wrong, we wouldn’t even have reached this level of technology.”

    More Chicken Little. Where is your scientific motivation and desire? Do you have none? Those who throw up their hands in the face of what others have done are lab technicians. Those that see opportunity and plow forward are inventors. The patent system is why we have innovation because it forces individuals to adapt in order to advance. Please learn your history.

    5. You say: “That’s the unavoidable conclusion of your reasoning, meaning that the patent system by itself has to innovate. ”

    Not true. The patent system sets up a structure whereby innovation is encouraged. I am taking what you mean to say that every patent has to be innovative. That is not the law and not the standard. In order to obtain a patent the subject matter must be adequately described, new and nonobvious. It does not need to represent an advance. The system, however, favors advances and so do investors and the marketplace. The system as a whole fosters innovation from a macro level, not a micro level.

    6. You say: “you’re not open to discuss the current state of the patent system.”

    How dare you misrepresent my position and what I believe. I discuss the current state of the patent system all the time. The good, the bad and the ugly. The fact that you have not chosen to read my writings and instead judge me on one article tells me all I need to know about you. You don’t care to inform yourself and jump to conclusions. It is no wonder you see the patent system as an impediment. You are narrow minded and not at all interested in reality or debate.

  47. The attempt to hinder my attempts to make new things is what is offensive to me.

    You are wrong to target opensource developers with your wrath. Most proprietary developer don’t have the resources to waste trying to decipher how many overbroad patents they might infringing on (and which ones might actually stand some scrutiny) either. It’s like trying to write a book when 30% of the words in English are disallowed and you don’t know which ones and it would take money to check each one.

    “Have you ever done a patent search? Do you even know which parts of the patent you need to worry about for determining if there is infringement? Do you know how to identify where the open space resides? Are you capable of pulling an innovation out of a disclosure that otherwise looks as if it is dead in the water? I do these things all the time, and I can tell you with 100% certainty that virtually every software project has patentable aspects. The failure to seek the innovation is what is offensive, and exactly what impedes innovation. ”
    No, I don’t have the resources to do these things. If I tried to charge the cost of doing this to my clients, I would be unemployed real fast. I do however, build software without copying off anyone else, pay and / or give credit for anyone’s work that I reuse in my programs, and seek innovation in the new software that I write.

  48. @Gene
    “Never. Yet their objection to the patent system is evidence. Evidence of what? Evidence that it poses a threat to well established companies that through thick bureaucracy have lost the ability to innovate. ”
    Last time I checked, Microsoft only concerns for patent reform were to provide better protection against non-practicing entities, which are parties that MS can’t really cross-license with. Also, I think you misrepresented that part of his argument. If open source developers stall progress by ignoring patents, then big proprietary companies like Microsoft do the same, because they are sued for patent violation on a regular basis. In fact, Microsoft and Apple both very well may have been sued for patent infringement more than any open source company.

    It’s not black and white, but software arguably has a lower average investment in getting a product to market than most other industries with heavy use of patents, a faster development cycle, and one of the biggest problems with patent quality, both in regards to finding prior art and obviousness. Big companies can fight junk patents, but the legal fees alone would destroy many small firms, which are the ones that need protection the most. Furthermore, interoperability is essential to success in software, and patents are very good at getting in the way of interoperability. Technically superior products can easily lose in the market if they don’t have support for popular formats, which is part of why the EU is considering some laws regarding interoperability from major software vendors.

    I know you love patents, but a broken patent system can cause a net loss for innovation for an affected field, and many feel that this is what is happening with software. MPEG-LA, for example, has all but said that their licensors hold enough patents that a modern video codec can’t be made without going through them. Patent rackets are not a good thing for innovation at all, and I think it’s pretty reasonable to say that software patents need a LOT of work, and trashing them until we’ve got something that works better is the simplest solution.

  49. “Furthermore, interoperability is essential to success in software, and patents are very good at getting in the way of interoperability.”

    Read … someone came up with a really good platform that lots of people use and we want to take advantage of their heavy lifting to our benefit.

    I’ll continue to repeat this — it all boils down to the have nots wanting what the haves have.

    Someone comes up with a new standard that you want to use. However, it is patent protected so you need to take license to use the stadard. You can choose to (i) license the standard; (ii) license another standard; (iii) create your own standard; or (iv) choose to infringe while exclaiming “damn the torpedos, full speed ahead.” Either way, you have a choice. Oh, I almost forget, there is another option — you can get some patents of your own and use those to leverage you way into the next standard, and as a result, be able to cross-license with the other patent holders based upon your patent portfolio. However, to do that, you have to INVEST in creating something new and useful.

    I know, I know … it is easier just to copy, but that is doing little more than advancing your bottom line.

  50. @Just Visiting
    The standard doesn’t have to be technically good for it to be needed. A good example is the FAT32 file system. It’s not an advanced file system, and even Microsoft has a better filesystem called NTFS, but it has broad support. so if you want to be easily accessed on any computer, it is the only reasonable choice. TomTom arguably revolutionized the GPS navigator market, and they used Linux to do so, but because ext2, HFS+, and any other suitable filesystem that wasn’t made by Microsoft isn’t supported on Windows, they had to use FAT32 to make the device easy for the general public to use. Microsoft raised a lawsuit against TomTom over using FAT32, and they settled out of court. TomTom probably has some patents, but they are in an almost completely unrelated field to Microsoft’s business, making them probably of little value to MS. TomTom was innovative, and their dependence on Microsoft was because Microsoft’s influence was big and didn’t support any filesystem they don’t hold patents to, not because Microsoft was an innovative company when it comes to filesystems.

  51. Crade-

    I do appreciate your comment. It sounds like you are indeed an innovator and your issue is not one of copying, but one of what if what you have created would infringe. Those are completely different considerations.

    I understand your frustration about not being able to make new things as a result of software patents, but the point I repeatedly try and make, and which fall on def ears, is that this concern is hardly unique to software. Programmers think they are different from other creators, but they are not. This is business, this is what goes on in all technology areas, software is not different and the Chicken Little reaction and wanting sympathy because it is too difficult is what is insulting to everyone else in all other areas of innovation. This is hardly a new phenomenon, just new for software because for so long it was not considered patentable.

    The truth is software patents offer insurance because if you have one the likelihood is there are other infringing yours, so if you infringe theirs it is a wash; a stalemate. It becomes a problem with you don’t have yours and then you infringe others. It is as if you are holding a gun with no bullets and the person you are pointing the gun at knows you have no bullets.

    I really have no wrath against open source developers. My wrath, if any, is directed toward ignorance. Open source developers are being told a bunch of lies and accept them as true because it fits into their world view. Many also settle for not innovating and simply copying, or taking whatever they can get their hands on.

    Open source can and should play a vibrant role, and works best as a patent pool where everyone cooperates and shares innovations. But not looking to innovate and pretending that copying others is innovative is ridiculous. That just ensures the same ideas and innovations have longer shelf life than they should.

    With all due respect, and I am not just patronizing you, I think you are missing the forest for the trees. It sounds like you are doing custom builds for clients. If clients don’t want to pay then you give them what they want and what they pay for. If, however, you want to build a company that is not based on a service model you absolutely must look for the innovative space and seek patents when you find innovative space, otherwise your business may have the rug pulled out from under it after spending a great deal of time, money and energy.

    -Gene

  52. @Just visiting

    Congratulations, you’ve really stirred up the hornet’s nest. The open source beatniks are coming out of the woodwork. What is amusing to read is the abject ignorance of many of them. Granted, I didn’t know anything about patent law before I became a patent attorney, so I really don’t blame them.

    US Patent Law is not the world. What is really amusing, that this whole thread is over the patent system feels a threat from the “abject ignorance” and a loss of business because people aren’t running to the patent office in the numbers as before. Obviously if any truth to open source taking business away from the patent system, it is because those that may have patented before, are now of the “abject ignorance” club taking their would-be patent money all the way with them in another direction.

    Maybe they wish to keep their money, seeing patents have done nothing for them in this failing economic problem that just may have cost them more then patents are worth – like most printed paper. Maybe they are tired of the cost to get patents, especially now after Bilski where the SCOTUS just pushed State Street over the side and reduced a test to a “clue”. Oh my, no new test ? …how much more will patents cost to find the “sweet spot” and more important – find those willing buyers on the idea, to finding it at any price ?

    Open source has none of these problems ! the failing economic problem, open source is in the spotlight with more to offer for less money everyday of the week. As what has already been said, open source has patent Lawyers too, they understand the Law, and are an important guide in the direction of open source. They do a fine job !

  53. way to delete comments

    we aren’t oblivious to it, you know.

  54. Matt-

    What are you talking about? I haven’t deleted any comments. Is this what the anti-patent movement has come to? Unfounded and incorrect accusations? Really!

    -Gene

  55. After I’ve reading this article I’m forced to conclude that the author does not have a strong grasp of what open source means either in philosophy or in practice. The only difference between closed source and open source software is the permissiveness of the licence. There is nothing at all in this article that has anything specifically to do with open source software. You could replace every instance of the phrase “open source” with the phrase “closed source” and it would change nothing.

  56. @Gene
    “I understand your frustration about not being able to make new things as a result of software patents, but the point I repeatedly try and make, and which fall on def ears, is that this concern is hardly unique to software. ”
    I don’t think any of the opponents of software patents think patents work without a hitch elsewhere, but they may contend that software is one of the areas where this is the worst.

    “Programmers think they are different from other creators, but they are not.”
    They may think that they fall within the realm of authors instead of inventors. Composers, novelists, and reporters generally don’t have to deal with patents. Programmers do have to deal with copyright, and often have to have more of a knowledge of than any of these other types of authors, with maybe some exceptions for reporters, who need to be aware of fair use. Also dealing with patents, and a fairly messy area of patents at that, would make programmers have a heavy load between their need for technical and legal knowledge, which could really lead to some disdain for the legal system altogether, and particularly lawyers.

    “The truth is software patents offer insurance because if you have one the likelihood is there are other infringing yours, so if you infringe theirs it is a wash; a stalemate. It becomes a problem with you don’t have yours and then you infringe others. It is as if you are holding a gun with no bullets and the person you are pointing the gun at knows you have no bullets.”
    That doesn’t make a good case for software patents, since you wouldn’t need defensive software patents if we didn’t have software patents. These software patents could be used to defend against hardware patents for a business who deals with both, but they could fire back with a hardware patent instead, and not gum up the works for software firms.

  57. >It is silly not to look for patents that you might infringe out of a fear of potentially being a willful infringer.

    That might be valid if the USPTO did not issue patents on things that were described in the literature circa 5000BP.

    That might also be valid if the USPTO did not issue patents on things that are obvious.

    Since the USPTO ignores both prior art and obviousness, ignoring patents is the safest way to proceed.

    Especially when patent trolls decide that a patent on a recipe for making cake is also a patent on all recipes regardless of whether the recipe make soup, beer, pond scum, cookies, koeksisters, or yogurt.
    Said patent troll will claim that the recipe user stole their patented recipe, even though recipes for the other things have been around for decades before said patent troll filed his recipe with the USPTO. That said recipe was widely known prior to the patent troll filing the recipe with the USPTO is not an ethical dilemma for said patent troll, because said patent troll has no ethics or morals.

  58. Gene,
    Interesting post – definitely a bunch to think about here (it’s going to take me at least a day or two to commit to either agreeing or disagreeing…), and I look forward to your future post outlining a solution…

    To pivot off of EG’s comment about co-existence (peaceful or otherwise) between the open-source & closed-source/patent-protected software communities, I wonder if you happened to see that piece by John Naughton in The Guardian a few weeks ago (http://www.guardian.co.uk/technology/2010/jun/20/internet-everything-need-to-know – the title of which, I think, was written with more than a little bit of tongue-in-cheek; it’s a quick, well-written, thoughtful piece (IMHO), and even if you disagree w/ him, it’s well worth the read), which, in point #4 of 9, compares the Internet to an ecosystem.

    One of the things that it got me to thinking, is that if the Internet & all of the devices connected to it constitute an ecosystem of sorts, then both open-source AND closed-source/patent-protected approaches to software development make the “ecosystem” more “diverse” – and (call me a stupid, dirty hippie…) I think that’s a good thing. By way of explanation, let me just point to the opposite of a diverse ecosystem, or monoculture (http://en.wikipedia.org/wiki/Monoculture), and the ill effects that one can have (http://en.wikipedia.org/wiki/Monoculture#Disease; http://en.wikipedia.org/wiki/I_Love_YOu_virus).

    Contrast those examples, then, with what we see in email software today; MS Outlook is still the default choice for many, but there’s also email on the iPhone, Google’s Android Mail program, the default MacOS Mail app, and countless other options (both open & closed, patent-protected or not) out there, for any number of operating systems (also, open/closed/etc.). In short, there are so many different email programs, and platforms for running them, that I don’t think that any one “ILOVEYOU” attack could have the same effect now, ten years later. Certainly, there will always be holes that can be exploited, regardless of whether code is open or closed, but since there are so many different platforms out there, no one vector will be capable of exploiting a hole on a Windows XP machine, and a Mac, and a Linux box, and an iPhone, and an Android, and, and, and, etc…

    Finally, I think that software patents come into the picture like this: as different private, for-profit corporations, and open-source software groups (and, their corporate backers, like Sun or Google) compete with each other for market share & eyeballs, the competitors will have to differentiate from each other not just in the eyes of consumers, but also the courts. In such an environment, I believe that patents help to ensure differentiation – or, “diversity” – in the market. Which is, I think, a good thing; for consumers, for the producers who are able to succeed, and for the market/”ecosystem” as a whole.
    -ron

  59. @Gene: your post was about the rate of innovation, not profits. Of course giving up a monopoly would bring down the potential for profits, but that does not equate to “stalled innovation.” This is another instance of correlations without causation, which remains at the heart of the continuing claim by you and the other patent attorneys here that the rate of innovation in the industrialized west is a result of patents. Could it not simply be that we have better education, more free markets, capital to invest, or any combination of any number of other factors? How do you get from our rate of innovation to patents as the one and only cause? No economist or historian has ever made such a sweeping claim. It’s amazing that you have. What do you know that they don’t?

    You use WordPress. I use Open Office, Firefox, and numerous other open source products because I find them better. Millions of other users do so too. These products beat things like IE, or MS Office hands-down. Doesn’t this suggest that they are more innovative… i.e. better, more stable, trusted, etc.? Are we all just ignorant users perpetuating a system which will somehow (though you haven’t yet made this case) stall innovation? Are the producers of this product just shooting themselves in the foot, oblivious to the inevitability of their stalling innovation (at some as yet undetermined point)? Or are you just worried that the patent industry will suffer for lost clients? I suspect it’s the latter.

  60. - Gene

    You argue your case pretty well, and with some statements I agree. On the other hand why make it personal by the use “how dare you” because I “don’t know who you are”, and yet it conclusion attack me as a person, being “narrow minded”. That’s not good arguments and has absolutely nothing to do with what we discuss. Even a fool can reveal stupidity of the intellectuals. I haven’t attached any of your writing to your person and have nothing against you. So let’s forget that part.

    My purpose was to see whether you would stand by and defend all aspects of the patent system. True, I haven’t read other articles by you, or might but I don’t remember, but depending on your responses here I deicide whether I’m going to or not. Now I don’t really understand what your opinion is. The article suggest one interpretation and some of your comments open up for another.

    Your choice of title doesn’t really fit your response to me and others, or the quite one sided argumentation. The article suggest that open-source generally stall innovation, but now you write that proprietary companies do the same. Open-source represents another approach to developing and doesn’t by itself stall or advance innovation. That’s what I don’t like about it.

    I’m not categorically against the patent system, even though believing that many of the things patented aren’t patentable. I’m only interested in reforms, not to get rid of patents. On the other hand, as pointed out by others, patent systems differ and for many of us living outside of the US many aspects of it don’t apply. There are of course old patent agreements that for example make some healthcare extremely expensive, when probes have to be sent to the US even though the same technology exists over here, but let’s see for how long that will last.

    I’ve got some answers and I’m satisfied with that. By the way, the part about book printing is actually true. It wasn’t really addressed at your article, but it’s a with perspective thought-provoking and funny part of history, which doesn’t apply totally to the patent system, but with its own twists.

  61. A couple things.

    First, to all the people who say that Gene is unwilling to address possible problems with the patent system, you really need to browse around the site a bit more. He isn’t a very hard guy to get to know, and he doesn’t keep his opinions secret, you are just choosing to see what you want to see. You pick out those statements which might be inflammatory and parade them around, while ignoring the parts that balance that out. He admits that open source innovates. He admits that they do a good job of producing software. He admits that there needs to be reform. What he is really ranting about is ignorance and bad legal advice, not open source. Open source just happens to harbor a lot of ignorance and bad legal advice so they are getting the blunt end of the stick on this one.

    Second, there is a HUGE difference between open source and free software, but it has nothing to do with the software and everything to do with politics and economics. Imagine that famous picture of both and old and young woman. Some people look it and see the young woman, while others see the old woman. After you realize they are both there, you can see them both, but your eye always goes immediately to the one you saw first. Both kinds of people are looking at the same picture, but they see very different things.

    You can’t look at a piece of code that is under the GPL or some other FOSS license and determine if it is free or open source. Why? Because it is both, just like the picture is of both an old woman and a young woman. The free software crowd is basically a socialist movement that wants to impose the ideas of socialism onto software. They feel that by giving up property rights, and allowing each man to do what he is able or willing to do, the whole society will benefit. This isn’t a terrible idea, and it has led to a lot of really good software, but it also means that they are anti-patent by definition because they are against property rights. The efficacy of the patent system has nothing to do with it in their minds because all property rights over software are evil.

    Open source advocates on the other hand, believe in the power of the open development model as a way to make rapid progress at little or no monetary cost. By giving up your property rights, you instantly gain the property rights of others and end up with a bigger piece of the pie. This only works because you can give away your piece as many times as you want without losing it. They see the property right as a bargaining chip that has value of its own, that can be traded for other peoples property rights. It is a different way of economically organizing labor for the purpose of producing a product. The difference is that instead of money being exchanged, labor is directly exchanged. This is a powerful concept that has worked well for many companies who have patents. It is another tool in the IP toolkit.

    That doesn’t mean that all open source advocates are ok with software patents, but it does mean that they aren’t against IP rights in general. If you don’t agree with that, then you are probably in the free software camp and don’t realize it. The free software camp uses craftily uses copyright in order to negate the effects of the copyright because they don’t believe in them. Open source uses copyright as a way to bargain for labor so that money doesn’t have to change hands and a looser and more dynamic working environment can be created. It is hard for even people who think they understand the difference to really understand the difference. The best advice I can give is to read the Cathedral and the Bazaar.

    -Andrew

  62. Its interesting how the arguments work in the article. It appears as though the definitions are what is trying to be proven. Which then shows the premise is proven. Kinda like only crazy people would kill themselves therefore you have to be crazy to want to kill yourself.

  63. Gene, I look at it this way – writing software is a creative process, akin to writing a novel or painting a picture. The execution of a program is like a story plot, or even better one of those “choose your own path” books that lets you make choices that alter the plot. Now, we all know that patents are not granted on story plots or subject matter for paintings, so why should they be for software? Would the world be more “innovative” if Tim Berners-Lee had patented HTTP and HTML? Would books be “more innovative” if Stephen King could take out patents on plot lines? No, unequivocally no.

  64. Gene, I appreciate and fully agree with your write-up about software patents.

    The real issue here is “PATENT QUALITY”. Many software packages are developed by merely following routine programming procedures and techniques where no actual innovation is required. Far too many of such software packages get patented, but shouldn’t be, even if what the software does might be new. This is a matter of “patent quality”. The patent examining process is not infallible and needs much improvement.

    Someone who develops a set of software which requires innovative (new) programming ideas or techniques, and who has pre-searched to find the “gap”, should be granted a patent.

    Your comments about searching the patent data base are excellent also. Even though it involves work, it is foolish to not participate in and use the patent system by conducting pre-searches to gain knowledge, find shortcuts and find the “gaps” in a particular field. This also helps to know who and what you are competing with. This is the way real progress is made.

  65. Jimi C-

    You ask excellent questions. Software presents difficulties because it has two faces, one that is expressive and one that is functional. Copyrights protect the expression by giving rights on the code itself. Patents protect functionality, not the code. So it is possible to obtain both protections, and both should be obtained whenever possible.

    A patent does not prevent you from writing code identical to or extremely similar to the code written by others. A patent does prevent a product from having the same functionality as described in the claims of a patent.

    So when you ask “why should patents be allowed for the code (or plot) resident in software?” you are asking a question to which there is no answer other than to point out that the question is flawed. There is no protection provided by patents for “the plot.” What is protected is the functionality and process steps described in the claims of the patent.

    -Gene

  66. Richard-

    Thanks for your comments. Patent quality is really where the problem resides in large part. The other big issue is that programmers don’t understand that patents are far more limited than they choose to acknowledge. Many programmers read only the title, or maybe the Abstract, or perhaps look at some of the drawings. Those that read the patent focus on the Summary, none of which defines the rights provided. The claims define the right, and the claims are always more narrow than the disclosure. So giving examiners 15 to 20 hours to examine extremely complicated inventions coupled with an undeveloped understanding of the patent laws leads to a great many conclusions that are inappropriate and patents that sometimes ought not to have issued.

    The other big problem is that programmers do not understand the concept of priority, and focus on the issue date of a patent and then point out that the invention has been known for many years. That is almost always true, but the question is whether it was known prior to the priority date, and that answer is frequently (if not almost always) that it was not known prior to the priority date. Again, a problem of the Patent Office that patent applications remain pending sometimes for a decade or more.

    If there ever could be an open minded understanding of the patent laws by programmers we could really get to a collaborative solution and figure out what needs to be done and how. Chasing myths and condemning the entire patent system is what bothers me.

    I will get off my soapbox now. Thanks for reading.

    -Gene

  67. @Gene – “I can tell you with 100% certainty that virtually every software project has patentable aspects. ”

    That is just about the best argument I’ve seen yet that software patents are out of control, utterly lacking in originality, and do nothing to advance innovation.

    Since anti-software-patent posters who don’t spell out their reasoning get attacked:
    Out of control: everyday work by ordinary people can be patended.
    Lacking in originality: implied overlap in allegedly patentable aspects of different projects.
    Do nothing to advance innovation: the software projects proceed, whether or not the authors … oops, I guess I should say “creators”… favor patentable software.

    And, since I haven’t seen it mentioned in this article’s comments yet, I’ll toss out that well-worn chestnut: Software was advancing at an amazing rate before it became patentable. (Internet, Visi-Calc, etc.). Software patents were not needed then, and they’re not needed now.

  68. uop_apisdn-

    Please explain why you think that the fact that all software is patentable demonstrates that software patents are out of control.

    This statement demonstrates a complete lack of understanding of the patent system. Every invention is patentable. If you layer on enough specifics and nuances you can patent anything. The question is whether the extraordinarily narrow scope is worth the time, money and expense of a patent. Sometimes, perhaps frequently in the mechanical space, the answer is no.

    For example, I only half-jokingly suggested in the past that if you take a tangible object that has nothing to do with a radio and integrate a radio you could get a patent. By who would pay for a combination beach pillow-umbrella with integrated radio? It is patented though.

    The trouble is you and most programmers don’t understand that the claims define the exclusive right. If you layer on 26 specifics in the claims you could make anything patentable pretty much. Then if I want to copy you I make my product with 25 of those specifics, but leave one out. I could never be found to infringe you.

    You see, programmers throw up their hands after reading the title or maybe the Abstract and never get to the point where they understand the reality, which is it is easy to avoid infringement. It is impossible to avoid infringement, however, if you stick your head in the sand. It is also impossible to innovate without originality, so sticking your head in the sand, as is the advice that many open sourcers get and follow, makes it impossible to chart a course the safely avoids infringement and which will lead to innovation.

    -Gene

  69. Gene: er, you seem to have entirely misread the first paragraph of my comment. I said that the people who say you shouldn’t look for patents are the ones giving bad advice, and then I say that the people who know what they’re doing – e.g. patent lawyers for major open source companies – do *not* give that advice. Please read a bit more carefully.

    Yes, I’ve done patent searches. Yes, I know which bits of the patent are important.

    “Doing a quick patent search to identify what is out there results in a handful of references that matter to any software program. There are not thousands that are relevant. Whenever I do a patent search for software it invariably winds up being about 3 to 5 references that really need attention. So if you are going to play the part of Chicken Little can you at least be factually correct? ”

    Sure. Doing one quick patent search is indeed quick. Then you get to your next line of code, and need to do another. It adds up.

    As Kim says in his/her (I don’t know :>) response, your claim that interpreting patents is quick and easy to do seems to be rather massively contradicted by the existence of an entire industry of patent attorneys who engage in years-long and highly lucrative trials, which tend to get resolved in out-of-court settlements. If it were all so easy, why does that happen? Wouldn’t everyone agree right away that of _course_ the patent does/doesn’t apply, and move right on to the endgame?

    “I can tell you with 100% certainty that virtually every software project has patentable aspects”

    Don’t you see the irony in this? That’s exactly the problem. We’re stuck in the strange position where the laws that are currently being applied to an industry are gigantically out of whack with the reality of how development of that industry actually happens (and has happened for years). There are all sorts of problems with patents in the software industry that are _not_ problems in any other industry. These are well-rehearsed, I’m sure you’ve heard of them and I don’t need to trot them out again, but the executive summary is expiry limits and the fact that *non* patent costs are so much lower in the software industry.

    Surely you can see that, if you’re correct and at least _one_ thing in every piece of software is patentable, it makes the software industry as it is today utterly unviable? For one thing, it pretty much kills F/OSS as a concept. But even if you overlook that, it’s still not really going to work. Software companies aren’t built around the patent law in the same way companies that make Real Things are, and they can’t be re-engineered to be like that very easily, because of the costs issue. There’s a lot of one-man-band software companies out there, not just in F/OSS.

    Look at the App Store on the iPhone, for instance. How much money do you think all those programmers have lying around to keep a couple of patent attorneys on staff?

    The only thing you could do in a world in which patentability of software is so wide is to radically revamp the industry into a cartel of very large producers with pre-existing relationships and large legal staffs, just like most manufacturing industries are set up. Compare the prevalence of one-man band software developers to the prevalence of one-man band electronics manufacturers. Okay, there are a few. Most of them don’t actually sell products to anywhere where patents are remotely enforced, though. There’s a reason so many wacky bits of hacked-up electronics are available in back alleys in China, and nowhere else. I, and many others, are not convinced that re-organizing the software industry along these lines is a net benefit to anyone but patent attorneys. This is why we propose revamping the (American) patent law instead.

  70. The other reasons software developers don’t look for infringing patents are poor quality of patents, and sheer volume.

    The quality issue is that most software patents are do such a poor job of discussing what they cover that the possibility of finding a patent you might infringe, even if you look, is negligable. They:
    * don’t provide sample code,
    * make up nonstandard vocabulary to describe how they work (n part because there is not a
    standard vocabulary other than source code).
    * are exceedingly broad in their terms
    This means that there are overlapping patents out there because one refers to “organizing mumbles into packets” and the other refers to “grouping widgets into baskets” when they are both describing nearly identical code and process; and if you aren’t happening to think of the groups as either “baskets” or “packets”, you won’t find either patent in your searches. This means there is no reasonable way to do an automated search of software patents for ones that you might infringe upon.

    Given the difficulty in doing automated searches, one must then manually read software patents carefully to find out what might infringe. However, there are approx 16,000 total software related patents, and over 1,000 new ones each year. The sheer volume of them makes this review process unfeasible.

  71. Marc-

    You are wrong on multiple fronts.

    First, you are wrong when you say there is no standard vocabulary to describe software. Anyone who believes that is fooling themselves and perpetuating a myth. Of course there is a standard vocabulary. If you don’t realize that it is because you have never tried to write down your thoughts and have never spent time trying to create a design document. That means you write only in code, and do not approach your projects with an engineering mentality. That is fine, but your assertions are simply false and turning a blind eye to reality is hardly a solution or successful debate tactic.

    Second, you can pretend that the volume of patents makes a search and review unfeasible, but that is again counter-factual. Patent attorneys do this sort of analysis every day, proving it can be done. What you really mean to say is that you choose not to do it because it is difficult. It is certainly not impossible.

    -Gene

  72. @Gene

    If there ever could be an open minded understanding of the patent laws by programmers we could really get to a collaborative solution and figure out what needs to be done and how. Chasing myths and condemning the entire patent system is what bothers me.

    Gene the US patent system lacks any open minded understanding of the development process outside the world that is the PTO, and Patent Law. This is not ignorance… negligent more like it ! Yes negligent, when the responsibilities to !!! all developers !!! by the PTO are neglected, with a single result that is to realize only their own, and themselves. Where oh where can I read the “LAW”, that states in plain language that patents are the ONLY innovation ?

    How we forget so fast that Colleges around the world teach the works of others. But by some magic if one takes building upon that knowledge, and runs to a patent Lawyer, and later, gets a patent, is an innovator ! Yet, another having equal knowledge builds upon it, but develops open source, then is closed minded and potentially a thief.

    Let’s get fair about it ? !!! All developers !!! are to be equal in the LAW, without bias as a guide to protections that makes the assertion that the US patent system is the “king of the hill” here in the USA.

    Just my 2 worth of opinions.

  73. New Here-

    You say: “Yet, another having equal knowledge builds upon it, but develops open source, then is closed minded and potentially a thief. Let’s get fair about it?”

    I am all about getting fair about it. Let’s start with you and others respecting the law. The law prohibits infringement, yet programmers openly brag about flaunting the law and copying whatever they like whenever they want. So if we are going to be FAIR about it that required following the law and not acting as if there is one set of rules the binds all areas of technology except software and another set of rules that applies to software.

    Booo Hooo… poor programmers who cannot write code for fear of infringement. As if you guys are special. Newsflash… you are NOT special. You are perhaps for the first time having to grow up and realize that the rules of society actually do apply to you. Those going around saying the sky is falling and you cannot do this or that out of ignorance and laziness are comical. Other scientists and innovators don’t complain, they get to working. What a novel concept!

    As for innovation. Why is it so hard to understand that those who come up with it first and announce it to the world are innovators and those who come up with the same thing second are not? If you cannot understand such a simple and fundamentally true concept there is not much hope really. Innovators create and infuse originality. There is no innovation when what has been created is not new.

  74. Gene,

    Again, I agree that you are basically on target with your ideas and comments.

    I say again, the issue is the quality and efficiency of the Patent System – considerable improvement is needed here. As you say, virtually any invention can be patented if the inventor writes claims narrow enough. If claims are sufficiently narrow, the patent examiner is obligated to allow the patent. However, a patent with narrow claims that can be easily circumvented is generally a low quality patent. Specifically relating to software, if a software package is developed using routine programming methods and known techniques – even if the software does something that software hasn’t done before – a patent based on it would be very low quality. Low quality patents tend to clog the system and do not promote real innovation, nor do they add to the technology data base. Low quality patents generally are of no real value to the inventor either. (This does not mean that all patents with narrow claims are low quality. It is possible for a particular narrow claim to be very powerful and represent an important technical advance.)

    Any inventor (or software developer) should exercise common sense in deciding whether to file for a patent – don’t waste time and money needlessly. (This is another argument for doing a pre-search when starting a development project.) Unfortunately, too many otherwise very smart and highly educated people fail to use common sense.

    Of course, anyone can develop something, including software, then not patent it and allow it to be freely available to anyone, but just be sure that your development doesn’t trample on someone who HAS patented their idea.

  75. @Gene
    “Booo Hooo… poor programmers who cannot write code for fear of infringement. As if you guys are special.”
    Wow…just wow. The constitutional basis of copyright and patents is to PROMOTE the availability of works and inventions to the public. Preventing developers from developing is the antithesis of this, and to shrug if off as nothing suggests that your view of the patent system is one based on profit instead of enrichment. If that is the case, I suggest you start at the most basic legal document on this issue, Article I, Section 8, Clause 8 of the US Constitution. I have not read the entirety of US patent statutes, but I can understand the basic concept outlined for how our patent laws SHOULD work, and your claim here suggests that this matter is irrelevant to you.

    As I’ve said earlier, there are numerous problems with patents in software. I will not claim that these problems don’t exist in other areas, but having problems in one area doesn’t justify them in other areas. If the current state of patents and patent law in a particular field do not provide a net benefit, then the law is certainly unjust and possibly unconstitutional. There is a big difference between what is legal and what is ethical, and it seems most billion dollar software companies can’t avoid patent lawsuits, let alone infringement that doesn’t garner attention. Staying completely within the law seems to be a very difficult task in software.

    I will agree that most programmers don’t have a good grasp of patent law, especially the intricacies. Most of the public doesn’t have a good grasp of patent law either. A lot of confusion I’ve heard falls between copyright and patents, which is made worse by terms like “Intellectual Property” that group them together. Expecting programmers, who also need to have a good knowledge of copyright law and the technical skills required by their platform(s) and language(s) of choice is arguably enough of a burden, let alone an understanding of patents and the risks involved in a very troubled patent field. There may be other fields that have similar problems, but there are fields that don’t, so it isn’t an inherent element of patents. As I understand it, pharmaceutical companies have very low rates of infringement. The only cases I can seem to find involve patent extensions, federal funding, and generic drugs.

    “The law prohibits infringement, yet programmers openly brag about flaunting the law and copying whatever they like whenever they want. So if we are going to be FAIR about it that required following the law and not acting as if there is one set of rules the binds all areas of technology except software and another set of rules that applies to software.”
    What constitutes infringement in software is not particularly clear. and that is perhaps the most confusing element. Sometimes there are valid patents with virtually no risk of a suit, sometimes there are invalid patents. Taking time to needlessly avoid a patent is an added cost to development, which may end up forcing a developer to deliver an inferior product. Patent suits, even invalid ones, bring serious legal costs, which can be devastating to a small firm, who arguably need protection the most.

    “As for innovation. Why is it so hard to understand that those who come up with it first and announce it to the world are innovators and those who come up with the same thing second are not? ”
    The problem is that software is largely derivative in most cases, regardless of source model, and that’s just fine. The average song isn’t highly innovative. The average novel isn’t highly innovative. The average keyboard isn’t highly innovative. Even highly innovative software is generally highly derivative. Originality only needs to be protected to the extent that the public benefit outweighs the harm caused by the rights temporarily lost by the public.

  76. >> The trouble is you and most programmers don’t understand that the claims define the exclusive right. If you layer on 26 specifics in the claims you could make anything patentable pretty much. Then if I want to copy you I make my product with 25 of those specifics, but leave one out. I could never be found to infringe you.

    Let’s look at a few underlying problems before diving into this example about the 25 claims:

    For starters, it’s easiest to come up with the broadest claims where the fewest details need to be known (and can even be guessed at with little recognition for difficult subtle issues), yet these are the claims that give you the widest scope of coverage! This means the people with less sophistication have been empowered to place barriers and hand-cuffs on the smartest of inventors, and they can do this early in the evolution of the art and science. [This has nothing to do with software, except software has such low capital requirements to manufacture, retool, distribute, etc, that we find many thousands of developers participating rather than tens (if that many). Thus, the opportunity costs of monopolies (and "taxes") are that much greater for areas like software, meaning the liabilities of these patents are that much greater.]

    To encourage the less capable to file the patents fastest and so get them, the patent system awards a staggering **20 years** of potential monopoly and/or discriminate taxing/injunction rights. There is also a fairly low “innovation” bar to be met (discussed further in a moment). This means you have potentially many less than brilliant (or less than highly skilled or even modestly skilled) people all able and trying very hard to grab the broad patents. It’s also true that some of the more anti-competitive will have a much greater tendency to participate over those that tend to value collaboration or who dislike hand-cuffing their peers.

    To bias against the vast majority of inventors (and greatly in favor of large corporations with many contracted employees and years in business), the patent system makes it money-wise expensive to come up with a good patent or even with any patent. Certainly, the patent is not free or automatic as is copyright. This means that if you create a large work ahead of others (or alongside others), you might have many thousands of details and larger ideas that could be patentable, but most people will not know which of these if any to try and patent. Most people don’t have the money, naturally, even if the ideas are already implicit in their carefully crafted and finished work. Patents have always been a game of money played by those with high ambitions (eg, needing millions or billions in investment). It is not a game designed to deal with ordinary individuals and small businesses; hence, we see why software patents are such a failure and biased against most developers/engineers/inventors/innovators. The patent holder can block you from the patented ideas, and can use all of your unpatented ideas freely.

    With so many ideas in every single body of code (think of fiction.. I’ll explain better in a moment), the patent system is making developers walking liabilities. In some capital intensive industries, for example, companies can protect themselves because there might only be a few other likely competitors. With software, where the bar is extremely low, we find that the many ideas will be patented by someone at some point in time, and the patents will land in the hands of many distinct groups — this is a mathematical probability/statistics reality.

    The many ideas that don’t get patented right away and perhaps not until they were fully developed by several independent groups across many years and products, can still get patented and frequently don’t get challenged sufficiently in courts because of the very high costs to do so and difficulty in recovering evidence. [See the Red Hat virtual desktops suit they just won with 3 cases of provable prior art. Red Hat had help from the wider open source community that was helping them find prior art, and still they spent 3 million dollars and 3 years I think it was.] This means that the patents (and associated 20 years of control) aren’t going to those that first or best know the inventions. That’s an awful lot of power to put into the wrong hands (assuming any single person’s hands could even be deemed worthy to block off many thousands of others).

    It also means that many people are able to copy ideas already expressed by several groups, get a patent, and then sue many years later when it is very difficult to track down the prior art.

    Writing software is like writing fiction: you are limited in concepts you can create only by your imagination and “writing” skills because you are creating virtual worlds. Mother nature never interferes or hides deep secrets that impede or prohibit general software development (thanks to digitalization and to the well-defined mathematical, idealized underpinnings). You build based on models with rules you create.

    This also means ideas are particularly cheap for software (and for fiction), while more detailed and precise implementation is the much more difficult part and the part more closely dependent on your skills and understanding.

    Obviously, models matter, but that is only the beginning, and frequently the core of the models come from distinct disciplines where patents are not awarded (and this is a main reason why those models got developed). Some software is simply a representation of mathematical realities, for example — the sort of stuff many mathematicians have been developing for years and years, thankfully, without a patent/monopoly framework.

    What a low bar:

    The bar to getting a patent is essentially that you find something non-obvious to the ordinary practitioner. This is a ridiculously low bar.

    [Note that a very high bar will still get in the way of the most advanced implementations of the most advanced models. There is a reason mathematicians don't patent their research (but, unfortunately, others take these and patent them, eg, as software implementations).]

    First, we’ll find that many people will be able to come up with the inventions read by patent claims without much help at all beyond the same things the patent authors had accessible (which is a lot; note that inventions are hardly out of their time because society’s inventors and inventions evolve alongside each other). How do we know this? Just look at the bar: “non-obvious to an ordinary practitioner”! In fact, most things that would pass this bar could be developed “independently” by almost **any** practitioner at some point before 20 years. What might not be obvious right away, might eventually become obvious (without the help of the patent or patent author). That is what non-obvious means, that it might be well within your means but simply not immediately clear and perhaps not until you’ve thought about the problem for a while longer.

    I don’t know how patent law stayed with such a low bar matched up with such a long monopoly period for so many years, but perhaps the clue is in that when there are significant hurdles already (eg, like very high costs and/or mother nature fighting you), the patent is the least of your worries, and most won’t apply or can’t/won’t afford to experiment with costly laboratories. On the other hand, the fact anyone can participate writing software (doing math, fiction, music, business, etc) and contributing ideas and suggestions brings the “obvious” folly of this system to the fore.

    Einstein needed social context (key experiments and mathematics done by contemporaries, and perhaps many other clues also coming from peers) in order to make his great inventions. He didn’t need to be motivated by patents (and did know about them very well), and in fact would not have been able to come up with his inventions of others had been patenting along the way. Of course, science and mathematics is (or has been) out of the scope of patenting. It’s clear monopolies on ideas stifle greatly if enforced. And not even a real Einstein can come up but with a few of the key ideas ahead of everyone else.

    Finally, before addressing the quote at the top specifically, let’s tie together a few more points. Most people already are priced out of the patent game. Even if they wanted to play a little, in the software and fiction worlds, they are overwhelmed with ideas and approaches. They could spend all their time patenting and never get anything else done or cover all their ideas. AND many others would surely beat them to many cases, even if the person was very smart (the world is full of smart people). Also note that knowing how to write software (or at least well) isn’t even a requirement for getting broad “software” patents that might read into many future inventions. You mostly have to be quick and be willing to spend money. You can even get help with the technical details after you have started writing the patent application. Software patents are a “land” grab open to almost anyone and which simultaneously turns many infinite resources into scarcities. Well, the main point to be made in this closing paragraph is actually that, the more you know, the more things are obvious to you and the less you might think is actually patentable and try to patent (eg, if you decide to dedicated a great bunch of hours and dollars to play the game rather than develop the “obvious” ideas into something of utility); however, if the law grants patents to what is non-obvious to the ordinary practitioner, then it follows that it will grant patents to what is obvious or even ridiculously obvious to some of the smarter folks.. or to the not-so-obvious to those that are not as skilled but worked on a particular problem for a few months (perhaps while many of the more capable peers were busy with more sophisticated matters and other problems).

    Alright, onto the 25 claims brief discussion:

    Patent claims are structured so that many claims have many fewer than 25 properties/features. Many patents exhibit a step-wise approach with respect to required features described by the claims, where a new claim repeats the broader invention claimed ahead of it and then adds a single (or two) new feature(s). And every now and then, several branches are covered.

    This means that an implementer avoiding the 26-feature claim doesn’t gain much if s/he then bumps into 10 other broader claims that preceded it.

    Finally, you can’t make a better wheel than a round one (meaning trying to patent around “roundness”). You can’t make 2+2 equal anything but 4. You also can’t also cover a distance with a shorter segment than a straight line.

    In other words, we can’t patent around things many times unless we accept inferior (longer, etc) solutions. This is the case, even if we can prove that the patented solution is optimal as shown by the mathematics or logic (and quite possibly when the patent author wasn’t able to do such a proof).

    To conclude:

    Patents are stifling, and this shows up very clearly when we try to apply them to creations that many are capable (and sometimes very willing) to create. This tends to be the case for works of the mind only, where the final product is information (eg, “processes” and “methods” accessible to most people). And the extreme problem cases are magnified thanks to the Internet and other modern inventions. Also, open source has shown that a monopoly is not only not necessary as a motivator but is undesired by many software developers because of its stifling, biased, and other unfair aspects of the system (and of monopolies in general).

    P. Quinn, there are still many areas (traditional heavy industries) where patents will not impede as many people (although the Internet and computing are bringing solutions of all sorts to the hands of many collaborators). As an alternative to abolishing all software patents, changing the law to disallow infringement claims against individuals, non profits, and small and medium businesses and/or to lower the duration to a couple of years, would go far in removing the arguments against software patents and opposition to them. With respect to patent duration: The modern world works too fast. The world of the late 1700s was much much slower and less developed in many ways.

  77. If only the broad software patents that don’t recognize independent creation and expression didn’t violate the First Amendment of the Constitution, perhaps they’d have a chance to survive SCOTUS.

  78. Bobby-

    You say: “The constitutional basis of copyright and patents is to PROMOTE the availability of works and inventions to the public. Preventing developers from developing is the antithesis of this…”

    Please educate yourself on the issues. The Constitution seeks to promote the progress by giving to CREATORS and INVENTORS exclusive rights for a limited period of time. That necessarily means that people will be EXCLUDED. So don’t give me this garbage about the Constitution really supporting those who choose not to innovate and want to copy and take what is property of CREATORS and INVENTORS.

    A programmer’s irrational fear of patent infringement is no basis for dismantling a system that has lead to enormous innovation and is the envy of the world. Do your homework. There is no innovation and there is no economy in those countries without a patent system. You might not like it, but those are the facts.

    So you are right… Article I, Section 8, Clause 8 is where it all begins, and your reading and understanding of that is seriously flawed. If you start with that, as you suggest, you must come to the conclusion I am correct and you are wrong. Only your misinterpretation of that clause could ever lead to the belief that the Founding Fathers wanted pirates and copyist to take the work of other who actually created and innovated.

    -Gene

  79. The Constitution does not dictate the Patent Act as amended and to apply to software patents.

    If Congress can find a law that would secure exclusive rights for a limited time so that progress is promoted, then great.

    Secure exclusive rights can mean many things. Limited time can also mean many things.

    Obviously, there are many things people can come up with “first” that would not promote the progress if others would be forbidden from also coming up with those things during a given term duration (eg, 1000 years). Someone is always first by definition, even if 1000 other smart people arrive at the same thing a day later and require that concept in order to solve the cure for cancer on the third day.

  80. >> P. Quinn, …

    Gene, I’m sorry, there was another (P) Quinn whose name I had stuck in my mind from around the time you contributed to groklaw.net.

    http://www.google.com/search?q=site%3Agroklaw.net+quinn&ie=utf-8&oe=utf-8&aq=t&rls=com.pclinuxos:en-US:unofficial&client=firefox-a

  81. OK, thanks for your reply Gene, you replied to my blog technicalities, however you never replied to the nucleus of my comment. That is, how the heck would you be able to know within all your code how and where to search for possible infringements?

    When you write a book or a novel, you hardly start searching every book in the world for a possible infringement, which it would not be necessary anyway, as every new creation stand on it’s own.

    Regarding software patents it is just impossible for a software developer to search all possible infringments.

    1) patent claims are not written in a language that software developers understand.
    2) there are no tools available for this. OK, one can use e.g. google patents and search on some keywords, but still, if you have written 20000 lines of code, which is a reasonable size of a not too big project. (the one I described, my MSc project contained about 8000 lines of code, where I almost ten years later (1990) by an accident got to know that 2 of my constructs, in total about 100 lines of code, would infringe on something where one patent wasn’t even applied for yet in 1981.

    First about the almost impossible task for a developer to find possible infringements according 1 and 2 above, my main issue is that there is no way to find patent examiners being able to tell you that a particular construct is obvious and that particular construct is not obvious.

    Do you consider that the developer should send the code to a patent examiner for evaluation?

    Would a book writer send a book to a literature expert to check for possible copyright infringments?

    Who should bear the cost?

    Apart from the above cases we also have the fundamental problematic with patents as such, I don’t know if you are familiar with TRIZ “Theory of Inventive Problem Solving” which was developed by a russian scientist and engineer Genrich Altshuller. Basically one can say that any technical problem can be solved by applying 40 different methods, which basically imply that only 40 fundamental solutions to technical problems exist. Thus making the whole patent issue quite ridiculous.

    However, as I’m a sane individual I consider that any product patent (software as well as physical or technical) regarding products, constitute an obstacle to invention.

    On the other hand I consider that a limited set of production method patents could actually be beneficial to innovation generally, independently of being software, physical or technical.

    What do you say?

  82. Gene,

    In all (dis)honesty, can you blame the thirsty crowds when they have such well-heeled anti-patent spokesmen as the Breyers-Stevens duo who offer such advice as:?

    Patents “can discourage research by impeding the free exchange of information,”for example, by forcing people to “avoid the use of potentially patented ideas, by leading them to conduct costly and time-consuming searches of existing or pending patents, by requiring complex licensing arrangements, and by raising the costs of using the patented” methods.

    Honestly now, this is a comment made about genuine patents that meet the law and that for which the bargain of the Quid-Pro-Quo has been given.

    At the risk of minimizing the soaring sales of Kool-Aid here (and I didn’t even have to insitigate this thread!), I need to point out that what these justices neglect to understand is that what they see as a roadblock is an invitation to innovate. These justices do a grave disservice to the great American spirit that is embodied in the concept of “work-around”.

    Further, the “crap” about searching the patent system shows an ignorance of the very reason why this country requires disclosure – the sharing of that knowledge. Are the justices really saying that searching the given knowledge is a bad thing?

    Raising the cost of using the patented methods?? – that’s called rewardiing inventors and incentivizing the sharing of knowledge. Oh, wait, that’s right – the justices think such sharing is a burden.

    Step right up and get an autographed glass of Kool-Aid!

  83. Firstly, Mr Quinn you commented: “What are you talking about? I haven’t deleted any comments. Is this what the anti-patent movement has come to? Unfounded and incorrect accusations? Really! ”

    You take one persons comment and attribute it to a whole group who disagree with you. I bring this up because it seems to be a theme; from the article: “The horribly bad advice that pervades the open source community and the utter lack of knowledge or familiarity about patent law is staggering ” and “I don’t know how widespread this advice is, but I do believe it represents one school of thought”; yet you only offer one example, which you qualify with: “I don’t know for certain that this is an accurate statement” and “I don’t know how widespread this advice is”.

    An apt response to your attitude may also be taken from your article: “With the myths and disinformation spewed by those who are either clueless and loud, or those who know better and have an agenda, are drowning out rational debate”; to use an old cliche: pot, kettle, black.

    For the record, no, I don’t like the patent system. You state in your article that you do not begrudge those who don’t like the patent system, yet you associate a comment you believe to be wrong to ‘the anti-patent movement’. Perhaps the problem you face is that none of the non-ignorant people want to talk to you because they have come to believe you have a bad attitude towards them.

  84. @Gene

    “The law prohibits infringement, yet programmers openly brag about flaunting the law and copying whatever they like whenever they want. ”

    So no matter what, if you are an open source developer, you are just taking from those with the patents. Can you offer something (please do), that shows the opposite isn’t true. That the patent people aren’t getting their ideas from those that have no patents on ideas ? Yeah, like Microsoft’s USB installer, the SOBs that contracted to write the code went right to GPL’d code with no respect – that you say is so important. I can go on with more examples, respect works both ways Gene. Fact, if your statement (above) were true, then I see no prior art should have ever been found, and form the basis for re-exams for so many patents over the past few years.

    Prior art does mean someone did it before the patent… right Gene ?

    So talking about infringement, prior art doesn’t just belong to patent’less open source developers. So it seems something is faulty; that patent owners that infringe on other patent owners (prior art)… does anyone get respect ? or know what is going on in the US patent system… or cares ?

  85. >> what they see as a roadblock is an invitation to innovate

    Blind Dogma, if the USPTO offers to throw in Blind Dogma’s house and wife (or husband) to the 1,000th upcoming patent applicant that eventually has their patent awarded, I am sure this will incentivize some people further.

    The question is, will you volunteer to make that sacrifice in order to incentivize some other folks?

    Well, I have not and will not volunteer to give up my right to create what I want and collaborate with others freely (more so if relatively independently of reading patents) for the sake of incentivizing certain groups of people to seek the patents and reveal a little bit of information largely useless to me to know from someone else but in aggregate very likely to impede my ability to create.

    Open source already reveals a lot more than do patents. They reveal fully implemented algorithms and many ideas. They produce a useful product, not an outline of what a useful product might have in the “features” section.

    I believe the Constitution supports my position of being able to preserve my right to free expression, but the point is that I would not volunteer away those rights in exchange to have the option to also try to get patents in competition with everyone else and hold others back if I get to the patent first.

    And why do I want to incentivize people that require a 20 year monopoly to divulge a few points that don’t cover by a long shot their trade secrets?

    Picking winners after the outline of ideas has been submitted is nothing approaching smart or free market. We can’t know 20 years in advance nearly what products would evolve to be the best nor by whom. And with a 20 year walk in the park, the patent holder doesn’t have incentives to work fast nor competitors to help them, never mind the abridgment on these other inventors, who, from broad patents or from good narrow ones, are denied important tools in their quest to solutions.

    And the problems grow with every single patent awarded.

    I am not sure how else to reply to Blind Dogma. Will you throw in your wife for added incentive?

  86. @Gene
    “That necessarily means that people will be EXCLUDED”
    Yes, I understand the mechanisms of the copyright clause. I’m not saying that patents aren’t going to exclude somebody, they have to exclude somebody, but this tradeoff has to be in the interests of the PUBLIC. I’m saying that if there is so much ground covered by patents that it’s hard to write software that is innovative or even just competes with existing software, there is a serious problem, progress is being held back, and the patent system is failing in it’s purpose. If avoiding software patents is a simple matter, than why are there so many lawsuits, even with billion dollar companies as defendants? Surely these companies have the resources to stay within the law here.

    To make my key point incredibly simple, let’s say that the element of obviousness was completely removed from patents. An invention only has to be different from existing patents in a trivial way. That would certainly impede innovation, and be an unjust patent system.

    The situation with software is not as severe as this problem, but I would contend that it is a problem, and the average programmer has to worry about patents on a project of a decent size, and quite possibly infringes the patent of somebody somewhere. Your claim of ‘poor programmers’ seemed to suggest you realize and admit this but don’t care because not having patents on software would be less profitable for you and your clients.

    As for your claim about countries without patent systems, correlation does not equal causation. In a country without a patent system, they are free to use ideas patented in any country, so they should have an easy time improving their economy. I would say that the lack of an economy is the reason for the lack of a patent system. That said, I think the patent system can work for a net benefit, but I don’t think it works in all fields, and certainly not in its current form.

  87. [New Here] >> So it seems something is faulty; that patent owners that infringe on other patent owners (prior art)… does anyone get respect ?

    Yes, a lot of patent authors go around some prior art (or they eventually get a scope that is sufficiently narrowed). This prior art they end up avoiding clearly can or did serve as inspiration. If patents were automatic like copyright, these patent authors would be infringing on the prior art.

    Patent rules were not designed to affect creation by the masses. It’s rules are broken and should not be applied to the masses. For the masses, copyright exists. Software is copyrighted.

  88. Vivaelmor-

    Perhaps you have not read the comments from those in the anti-patent movement who comment on this blog. The reasoning they employ is disingenuous, they do not let facts get in the way of forming the wrong opinion, and they have no understanding of the law but opine as if they are authoritative. The anti-patent movement is full of those people, and everyone in the industry knows that the vocal crowd is not at all knowledgeable.

    As for those who are, as you say, “non-ignorant” about the subject matter. If they don’t want to debate that is their problem, not mine. I can tell you are unfamiliar with IPWatchdog and me in general. I have opened up IPWatchdog.com to articles published by those who are anti-patent. In fact, anyone who can write an intelligent article is welcome to submit it for publication. As long as it is grounded in fact it will get published. Those who make up facts or are not familiar with the subject matter need not apply.

    I have taken a lot of heat in the patent community for publishing anti-patent articles, but I will continue to do that when an appropriate article is presented. There are certainly arguments that can be made against the patent system, but make those arguments. Don’t opine that innovation does not require originality, or that countries without patent systems enjoy prosperity, or other such factually incorrect nonsense.

    I do not trade in nonsense, and everyone always knows my biases and where I stand. For those who don’t like that, then don’t read IPWatchdog.com. For those who are afraid of a heated, fact based debate, then don’t comment or go elsewhere. For those who are afraid to talk to me, you don’t know me and obviously find it easier to be a hater than a part of the debate, which is truly sad.

    -Gene

  89. New Here-

    You say: “Prior art does mean someone did it before the patent… right Gene ?”

    Do you know what “prior art” means? Prior art is something that, generally speaking, comes in time before an invention. Every invention has prior art, but that doesn’t mean a patent cannot be obtained. Prior art is anything with an earlier priority date (the stuff defined by 35 USC 102 to be technical about it) that RELATES to the invention. So unless you come up with a revolutionary, one of a kind, never before imagined invention then there will be prior art. It may not be all that relevant, or it might not be relevant at all given how you describe the invention and write up the claims, but it will be prior art.

    You ask: “does anyone get respect?”

    Good question. Respecting property interests is only required when there is an infringement. Just because someone has patented a particular graphical user interface, for example, doesn’t mean that the graphical user interface I create would infringe. It would be prior art, but if what I am doing is not literally covered by the claims of the underlying patent then there is no infringement. That is the distinction that is lost on the programming community, who by and large wants to read the title and then know what the right covers. It is not that simple, and for those who are deterred by the title and lack of knowledge, well, they weren’t likely to innovate anyway. Innovation requires determination, and those who allow ignorance compounded by laziness to get in the way are not the sort of dedicated individuals who innovate.

    Your comments continue to show a terrible lack of knowledge about the patent system. You would do well to inform yourself. There are arguments that can be made, but no one here is making anything the resembles a coherent, intellectually honest, factually correct and legally accurate argument against patents or against what I wrote in the article. Yet, those who think they know the law better than I do are opining despite a lack of knowledge and without attempting to inform themselves. Truly sad.

  90. “Software is copyrighted.”

    It is also patented, apparently much to your disapproval.

  91. An analogy between scope of copyright law and patent law. [I lack direct experience, so any precise corrections would be appreciated.]

    Let’s look at copyright law. A derivative work is defined by the courts. It’s a subjective determination. A derivative work will share at least some if not many features and/or details with the “primary” work.

    What might appear like a derivative work on the surface might have been be arrived at naturally. Eg, to look at a (non-copyrightable) math scenario that does present itself frequently at many levels, two people might come to the same fact-supported conclusion and structure their proofs very similarly. One proof need not be a derivative of the other even if they both look very similar. After all the same sorts of inspirations that led the first author to produce a work were also in the environment of the second author (to varying degrees this is always true).

    So in copyright law, the person creates a work and this implies a set of other works that likely would infringe (as “derivative works”). The courts define this scope of infringement. A derivative work will share some or many features with the original. The court I think allows “derivative works” to exist without infringement if they were created relatively independently of the original work.

    For patents, the story is different. The patent author may not develop a precise work ever, but s/he then does define the scope of infringement around the perhaps hypothetical work.

    So while a judge or jury in a copyright case might say that because this product has all of these similarities to this other one, then perhaps the latter is a derivative work, with patents, the patent author, not the courts, define the scope. In particular, the patent author has an incentive to be as broad as possible and much broader than would be called a derivative work were copyright law to be applied to an actual product created (or imagined) by the author.

    As an example, I might write a 20,000 line computer program. A court would define if some other work would be a derivative work, yet I can attempt to capture all the broad concepts of the product generated by those 20,000 lines. I can generally cover much more ground through the patent approach than would happen through the derivative works.

    So what is the point of this discussion? That patent law let’s people define markets they want to own or tax (subject mostly only to others not having described those markets already.. oh, and subject as well to the fairly low hurdle known as “non-obviousness”). They allow a person to force others who create totally independent works (at least based on “derivative works”) to be forced to stop using their independent creations or perhaps to have the option to pay a “tax” for the privilege of using their non-derivative independent works.

    I mention this because it should be clear that if a person creates prior art, that there is at least one implied scope of coverage that would include that prior art yet be very broad and include many other works that share a few features of that work but no more and which would not be called derivative works BUT which would imply that patents taken out that come close to describing that prior art case, would share many of the attributes of that prior art and hence numerous products that infringe on that patent would have infringed on a patent taken out by broadening the unpatented prior art (or maybe even through “derivative works”).

    As a more concrete example. A patent on a new style of bicycle might relate to a prior art bicycle but come with a head gear and goggles and camera that allow the rider to see their surrounding at 270 degrees (think of a panoramic view) rather than what humans see which is certainly less than 180 degrees.

    The USPTO would likely grant such a patent despite it being so similar in so many ways to the prior art bicycle. Were someone to be able to claim copyright on that bicycle, a court could very easily rule that the patented claims describe derivative works of that bicycle.

    So my point is that patent authors are allowed to effectively create for themselves protection on what would be derivative works off that prior art, so as to block others from creating essentially what they did and claim: further derivative works. This means, those with money and desire to patent, can “copy” others’ independent works and then write the patent so that future numerous people creating “derivative works” of that prior art (whether on purpose or independently) will likely violate the patent.

    Patent authors take much inspiration from society, eg, from recent unpatented works, for many of their ideas but then prevent others from coming up with those same ideas off that same prior art or even independently.

  92. Gene, your comments stand on their own, what other people have said is irrelevant. I called you a pillock on another blog but it would be rather silly to denounce everyone on that blog as rude because of me. I also find it hard to believe that the majority of them are guilty of being any more disingenuous or arrogantly authoritative than you appear to be. You say ‘everyone in the industry’, which is arrogant enough in itself, but coupled with the disregard you show for anyone’s opinion outside of the industry, furthers my point considerably.

    You said: “I have taken a lot of heat in the patent community for publishing anti-patent articles, but I will continue to do that when an appropriate article is presented. There are certainly arguments that can be made against the patent system, but make those arguments. Don’t opine that innovation does not require originality, or that countries without patent systems enjoy prosperity, or other such factually incorrect nonsense. ”

    This seems to say that you’ll publish anything which you agree with, label it as progressive, and dismiss anything else as wrong. It means little that you post things your peers disagree with if it is still furthering your own agenda. Oddly, I don’t even know why I am having to argue this as I really don’t mind what articles you publish. You are entitled to your own opinion and your own forum, there are plenty of places that I can get the other side of the story from.

    You go on to say: “I do not trade in nonsense, and everyone always knows my biases and where I stand. For those who don’t like that, then don’t read IPWatchdog.com. For those who are afraid of a heated, fact based debate, then don’t comment or go elsewhere. For those who are afraid to talk to me, you don’t know me and obviously find it easier to be a hater than a part of the debate, which is truly sad.”

    Honestly, I don’t have enough respect for you to get into a ‘fact based debate’ here. If I’m going to argue for the sake of it then I’ll do so on a site that I like instead.

  93. - Gene

    Could you provide hard evidence of the following quote in regard to software?

    “A programmer’s irrational fear of patent infringement is no basis for dismantling a system that has lead to enormous innovation and is the envy of the world. Do your homework. There is no innovation and there is no economy in those countries without a patent system.”

    Since the fundamental innovations about software did occur while code wasn’t viewed as patentable, do we really have any good examples of software enough original that is proven to not have been possible to develop wouldn’t it have been for the proclaimed protection of the US patent system? Even if not defined as such the open-source model is closer to describe the ground breaking stages of software. In software we did see the opposite: innovations were made and then companies started to find ways of limit its free use.

    Scientific analysis of world economies often make a direct correlation between amount of patents and innovation. Innovation by definition suggest profitability. Patent systems differ between countries and hence we usually see that estimations are made on the basis of international patents in the US, which also means we actually don’t have a reliable measurement of even patents, and even less about the true quality of those patents. Personally I have my doubts about the quality of many US patents, since US has less engineers and scientists than one should expect judging from the number of patents granted. It’s also true that only a fraction of patents, whatever field we’re talking about, become innovations in the sense of gaining interest, reaching production and becoming profitable. If this is true about patents in general my impression is that software patents are in a far worse situation.

    I doubt that basic natural knowledge are meant to be patented. We have recently seen cases were patents cross the boarder between software and pure mathematics. Personally I don’t view code as anything particularly different from human languages or understanding of mathematics. What we can produce making use of these basics could however better qualify for patents. Tampering with patents in this areas might increase the amount of patents, but the amount doesn’t prove that innovation has occurred.

    Circumstantial evidence of the trouble software patents mean can be seen by the amount of silent mutual understanding, when patents exist on both side of a potential struggle, but the parties decide to not challenge one another. It looks like both open-source and proprietary companies doubt the validity of several thousands of patents, but need a good collection to make soft negotiations more likely.

    If as you say we have seen “enormous innovation” in software because of patents, please provide sources of such. I’m not challenging you, but I’m sincerely interested. Could you also please explain why the world is envying how the US patent system deals with software. I have seen very little positive comments about it concerning software. The patent system can be a positive force, but it doesn’t mean it’s a universal solution to all human activity.

  94. @Gene
    “Yet, those who think they know the law better than I do are opining despite a lack of knowledge and without attempting to inform themselves. Truly sad.”

    Gene, I’ve never sad I know a thing about your world !
    Your knowledge has failed you bad ! change has happened (open source) ‘in-your-face’ and you go on so with all of your disapproval of open source, going on with many tired quotes of patent Law and tired patent facts as if they challenge and win over the change, as if with hope it may just go away. ..sad.

    Change brings change to the Law. Ignorance of the Law doesn’t mean people can’t change the Law. Law makers can be changed as well, with votes, and the result, the direction taken will be through all the people’s eyes that together make this Country (USA) great. You see Gene, this is bigger then both of us and the patent system that serves few.
    .

    We will see what the next time at the SCOTUS brings, I feel I may want popcorn for that show.

  95. New Here-

    I never said that you claimed to know anything about “my world,” as you put it. But it does seem that if you are going to opine about the law you ought to know something, and if you are going to offer opinions you should be informed.

    You do seem to think you know what is best for the law in this area, but you don’t know the law in this area by your own admission. So how could you know what is best?

    I completely disagree with you when you say “Ignorance of the Law doesn’t mean people can’t change the Law.” How can you rationally and realistically change something you have no knowledge about? Come on! Can we try and keep it real please.

    As for open source in my face, that is funny. Hey, if you want to go open source go for it. It is driving the industry into a service oriented industry whereby everyone who embraces open source will compete for a price point and only have a finite number of hours a day to sell. Open source in its present configuration won’t lead where people want it to go. Increasingly there are free solutions and free is not a business model. If you can get something for free why pay for it? If everyone can copy what you have done then you are always going to be pushing the industry lower and lower until it is non-existent. Proprietary software will always exist because people are willing to pay for things that work, and in this space they are also surprisingly willing to pay for a lot that doesn’t work.

    -Gene

  96. Kim-

    You are asking me for proof that third world countries without a patent system have no economy? Are you serious?

    Why don’t you just look at the countries with a patent system, then look at the countries with a strong patent system. Or better yet, why don’t you name those countries with the worst poverty and most non-existent economies. You will have named the countries without a patent system. Now name the countries with the strongest economies, and in decreasing order you will have named the countries with the strongest to weakest patent systems. It really is that simple.

    Ask yourself this, where are the pharmaceutical companies? Is is happenstance that India has started to recognize pharmaceutical patents? Where is the biotech industry? Why did the biotech industry largely leave Europe?

    The evidence is right there for you any time you are interested in looking for the truth.

    -Gene

  97. @Gene
    Kim said ‘in regard to software’, claiming that the software industry was innovative without patents in the past, and I have already listed a theory as to why having patent laws and a strong economy have a correlation.

    However, there is a good case study in copyright, whose incentives work in a similar matter to patent. For most the 20th century, there was a western nation that had expansive fair use, didn’t have automatic copyright (and still doesn’t have statutory damages for unregistered works), lacked moral rights, and declined fully joining the Berne Convention for nearly a century. That country was the United States of America, and I’d say it did fairly well with copyrighted works in the 20th century. In fact, some of the biggest innovations in music, jazz and blues, had origins that are pretty had to nail down.

  98. @Gene

    “I completely disagree with you when you say “Ignorance of the Law doesn’t mean people can’t change the Law.” How can you rationally and realistically change something you have no knowledge about? Come on! Can we try and keep it real please.”

    It seems to me you lack an understanding about people without your Education and knowledge of patent Law. I’m not trying to be ugly Gene. But I find your approach ugly seeing you are the one that opened the door here that started this whole thing. Gene, disagree away.

    I should require you to gain a clear understanding of the open source development model, an understanding I don’t believe you have, I believe making no attempt to inform yourself. Misinformed, just group people into a lump and paint with a wide brush. Every time you push the Law in front, as some distraction from any other point on open source bugs me. An attempt to inform yourself would soon show you people’s faces, know them by their work and gain from their experience as programmers for one.

    The open source community is made of many different people from all walks of life knowledge and experiences. Oh, as I did try to open a few small doors, with the links I provided you- I don’t know what you think because you didn’t get back with me -and the one I wish’d you would take real notice is IBM. IBM is part of the Linux – open source community ! (links), has been for over 10 years. IBM is a major player. Selling top mainframe style computers world wide, running Linux(R) to Corps Governments and industry.

    The real kicker is that well know fact about IBM’s patents, largest collection maybe in the world, But the other kicker is that IBM has spent millions on Linux, now runs on just about all of IBM’s hardware; and Linux is open source as are many programs that runs on Linux.

    Enough, IBM the largest patent holder has made a successful growing business with an open source OS. So when painting with that wide brush, IBM is included. Note, Mr. K now at the PTO, was with IBM before, dealing in IBM’s IP whole ball of wax, I have no doubt was part of the transformation of IBM and their patents, making, as well forward open source software within IBM’s business. You would think open source could have had a lot coming from IBM against it 10 years ago, no, real insight realized the change, and the change, it has paid well.

    If you want to make something cheap of this, go for it, there are others. See the Linux Foundation members. http://www.linuxfoundation.org/about/members Its clear to me that many others are working with, not against open source already; you Gene, seem not to be aware of it. The relationships are doing well with some bumps, but respect is high. All this just good to think about when you know or don’t, using open source software.

  99. Gene, as Bobby already pointed out I asked about software innovations. That’s the whole subject of the discussion. I’m not arguing about patents in general.

  100. Gene.. you write: “Do your homework. There is no innovation and there is no economy in those countries without a patent system” thus implying causality. Indeed there is causality but the other way around – the patent system exists because there is an economy.

  101. Here’s an interesting PBS piece I saw a while back that is sort of relevant. It addresses innovation and open source, and claims that incentives, particularly money incentives, work well for straightforward tasks, but do a poor job of pushing creative and innovative ideas. The interest in patents is largely financial, so it would largely fall within that scope. That said, I’m not going to condemn patents outright. Certain industries have high development costs, take long periods of time to get a product to market, and can’t get any other form of serious protection on their investments. These industries probably do need patents. My belief is that patents can and should play a vital role in innovation, but the way they are by and large carried forward today does little to forward innovation and an awful lot to significantly disadvantage start-up companies, at least regarding software. ;)

  102. Martin P-

    Actually you are incorrect. Look at those countries that did not have an economy, or much of one. After they adopt intellectual property rights outside investment comes through and an economy is established. The World Intellectual Property Organization (WIPO) has for years been working with countries to help them establish intellectual property laws, and once that is done it creates an economy and outside investment comes rushing in.

    So there is, in face, causality.

    -Gene

  103. Kim-

    The trouble is you cannot “only” talk about software innovations. Software is a process and processes have been patentable since 1790 in the United States. That is what the Supreme Court determined in Bilski v. Kappos conclusively. That is why the Bilski case, which really should have been quite easy, was so difficult. You simply cannot talk about software in isolation. Any rule you come up with that pertains to software would apply across the board to all processes and fundamentally alter patent law, which isn’t going to happen.

    -Gene

  104. @Bobby

    Like the PBS link.
    Note: Open source code is available for free of charge, for two, reasons:

    Making the code available this way means the code gets in the public hands faster. So that testing and contributors work is cost free to them. When was the last time you know someone paid another to work on the another’s code ?

    Making the code available this way means the code gets viewed quickly, by those that know programming
    and will/may contribute. Any one can download and see the code – open source has nothing to hide.

    Last, it is the responsibility of the user(s) of software to make a successful profit, not the responsibility of software itself – as it seems taking from the patent system… it is. I don’t know how anyone could believe that software alone has a thing to do with success, look at the mess today, and think about all the patents that did… what?

    Software patents take large swaths within their claims. The problem is that there is no protection within the patent system that non-patent developers work is even recognized. A developer with nothing more then a copyright in hand has no protection against the swath of a patent or patents. This is at the heart of the problem for me with software patents. The swath gos beyond a specific patent or patents, to the point that any developers work is in danger of being claimed because of the total focus on patents that has the advantage well in the hands of patent owners.

    Claim to innovation is today a matter of the well designed set of patents. Developers of open source or not, not patenting are in danger with worthless paper as a copyrights, and so, seems the monopolies of patents have a greater reach then just the claimed innovation. The Courts are what the non-patenting developers have left, because the concept of fair rest within the world of patents.

  105. @Gene
    “The trouble is you cannot “only” talk about software innovations”
    While it may be difficult to legally separate software patents, (I have my doubts, as a court could rule that software is entirely algorithms, which is what Knuth claims, and thus pure software applications are unpatentable, or Congress could perhaps explicitly forbid software from patentable scope), we can separate them out technically. If we can conclude that software patents as a whole are not beneficial, then the next step would be to devise a test that excludes software patents but not another field where patents ARE beneficial. The algorithm angle seems to be an easy one, and I suppose you could also claim that software is authoring, not engineering, and limiting authors in this manner violates fair use or the first amendment. Comparisons to music are a good example, with sheet music representing source code and recording representing a compiled binary, and as far as I know there aren’t patents on musical compositions. Perhaps these are not the most legally sound arguments, but I am not a lawyer, and thus, is not a field in which I have expertise.

    “Any rule you come up with that pertains to software would apply across the board to all processes and fundamentally alter patent law, which isn’t going to happen.”
    The CAFC ruling on Bilski did that, and the Supreme Court could have ruled the same. I know you wouldn’t like that, but it’s by no means impossible.

  106. I firmly believe we can draw a constructive line between patentable and unpatentable. Certain implementations of IT already by purpose progress without patents. Would we enjoy software without networking standards? As I understand, and as Cisco confirms in statements, network standards don’t function well within patent boarders. These protocols aren’t that very different from what is accomplished by code for consumer software. Still you can see that Cisco have many patents, in thousands, in other fields of IT. We see innovation which by itself doesn’t generate money, but used as standards stimulates implementations that do. You can earn money by using human languages, mathematics or some other fundamental knowledge, to produce something profitable. The unpatentable is a means to achieve something else, that might better qualify for a patent.

    When it comes to economics we should be humble enough to realise that we still don’t comprehend how to manage it successfully. We do have many theories and models for how it works. It’s a field of science and you still receives Nobel prizes for adding understanding of it. To then uncompromisingly suggest that we know the truth about the impact of patents is against the scientific method. To then further suggest that patents have the same benefit in every field is to go even further away from the scientific method. We just don’t know for certain. We don’t even have a certain model for how to measure innovation capacity; number of patents and their production efficiency, work for some fields fairly well, but it’s still a very unsatisfying method.

    Thus I’m surprised by you constant references to “learn your history”, law and constitution. There’s no axiom to take hold of among these human made pillars of society. We can see is that our economical methods so far has achieved an astonishing level of destruction, which suggest we might have failed totally. A good economical system shouldn’t exhaust resources to the brink of collapse, or collapse if “too” many become rich compared to the number of the poor working force. The whole matter is so imperfect, and still beyond our capacity to control, so how can anyone for sure say that patents are the only way of innovation and progress?

    (Before anyone jump to conclusions: I’ve no political agenda and I’m not suggesting any political ideology.)

    Not as part of the discussion here, but I noticed you claimed that copying other’s work doesn’t advance innovation. I understand that you applied to our limited scope of discussion, but otherwise all we humans do is to copying already existing techniques. Some are so obvious they’re labelled bionics, but what isn’t bionics if we put it all in perspective.

  107. Gene, humanity made it through the whole of history up until, basically, the 15th century – you can argue a little earlier or a little later, if you like – without anything remotely resembling the American patent system. As I recall my history studies, you might say quite a bit of innovation went on nonetheless.

    Associating the entire concept of human innovation with a specific implementation of a legal patent system…wow. Hubris seems an inadequate word to describe it.

    (To make a meta point, I’ve noticed that you seem to stop engaging with anyone who presents vaguely reasonable points and instead spend lots of energy replying to people like New Here. Presumably in an attempt to bolster your rickety position that there is some sort of Anti Patent Community, and it’s composed entirely of idiots.)

    You seem to be suffering from the common delusion that many suffer from, whereby they consider whatever field they happen to earn a living in to be the Single Most Important And Noble Area Of Human Endeavour. (Seems to manifest itself in military types a lot, too). Sorry, but it just ain’t. The sea could open up and swallow all the patent lawyers in the world tomorrow and the world would keep on spinning much as it did before. Same goes for open source software developers, for that matter. No particular little niche is that significant. And no, WIPO is not the single heroic engine of world economic development. Sorry, but it just ain’t.

  108. No particular little niche is that significant.

    You obviously have not suffered a New York City garbage strike in the high heat of summer!

    (Original argument was that “The sea could open up and swallow all the patent lawyers in the world tomorrow and the world would keep on spinning much as it did before.”)

  109. Humanity made it through the whole of history up until, basically, the 15th century – you can argue a little earlier or a little later, if you like – without anything remotely resembling the American patent system.

    Does that include almost “not-making-it” through the Black Plague?

  110. Associating the entire concept of human innovation with a specific implementation of a legal patent system…wow. Hubris seems an inadequate word to describe it.

    Yeah you must be right. There is a plethora of “innovation” just pouring out from North Korea like a Gulf of Mexico Oil Gusher on steroids.

  111. @step back
    “Yeah you must be right. There is a plethora of “innovation” just pouring out from North Korea like a Gulf of Mexico Oil Gusher on steroids.”
    and that’s certainly due to the lack of a patent system, not the fact that the country is ruled by a crazy dictator that has limited interest in building a national infrastructure outside of a nuclear arsenal.
    I know that people on both sides of this issue like to exaggerate the role this plays, but to suggest that North Korea’s lack of innovation is due to no patent system is lunacy. The truth of the matter is that the patent system acts as a minor coefficient in the overall progress of a country. If it is properly balanced and well sorted, it gives your country a decent sized boost compared to another country without one with all other factors roughly the same. If you have an efficient or overreaching patent system, it acts as a burden relative to another country. Finding the ideal mix is tough (and often changes as society progresses), and in a good system, the pendulum is probably going to swing back and forth a bit, so learn to deal with these changes instead of screaming bloody murder.

  112. @ Gene:
    WIPO works hard to inflict its one-size-fits-all standards on developing countries, and this has proven to help the developed world at the expense of the developing world. There are numerous studies that support this. Click above for one such report. … or see this British report, which begins:

    ” A call to improve intellectual property rights of developing countries
    Commission on Intellectual Property Rights
    Independent commission finds intellectual property rights impose costs on most developing countries
    and do not help to reduce poverty

    In presenting its final report to the British government, the Commission on Intellectual Property Rights declared the internationally-mandated expansion of intellectual property (IP) rights unlikely to generate significant benefits for most developing countries and likely to impose costs, such as higher priced medicines or seeds. This makes poverty reduction more difficult.

    The Commission also called on developed nations, the World Trade
    Organisation (WTO) and the World Intellectual Property Organisation (WIPO) to take the circumstances of poor countries and their development needs properly into account when seeking to develop international IP systems….”

  113. @ Step Back:
    Actually, North Korea HAS a patent office and patent laws guaranteeing a 20 year term of protection. Click my name above for details on how you too can get a patent in North Korea. Here is contact info in case you wish to reach them:

    North Korea: Trademark and Patent Office

    Name: Choson Minjujuui Iinmin Konghwaguk Balmyongchongguk
    Address: Kinmaul 1 dong, Pipha Street
    Moranbong District, Pyongyang
    Phone: +850 2 381 60 25
    Fax: +850 2 381 44 10

    It makes sense, since patents are essentially state-socialist devices having nothing to do with free markets.

  114. A wonderful example of how weird patents can be: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/PTO/srchnum.htm&r=1&f=G&l=50&s1=7,739,139.PN.&OS=PN/7,739,139&RS=PN/7,739,139

  115. @ Step Back

    by the way, North Korea has a patent office and is a signatory of WIPO:

    “The DPRK is a signatory to these IP accords

    * WIPO, since August 17, 1974
    * Paris Convention (IP Protection), since June 10, 1980
    * Patent Cooperation Treaty, since July 8, 1980
    * Madrid Agreement (International Registration of Marks), since Jan. 15, 1980
    * Madrid Protocol (International Registration of Marks), since Oct. 3, 1996
    * Hague Agreement (International Deposit of Industrial Designs), since May 27, 1992
    * Nice Agreement (International Classification of Goods & Services), since June 6, 1997
    * Strasbourg Agreement Concerning the International Patent Classification, since November 21, 2002 (source)
    * Locarno Agreement (Int’l Classification for Industrial Designs), since June 6, 1997
    * Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, since February 21, 2002 (source)

    Here are the related agencies for registering a patent, trademark (industrial design), and copyright:

    For Patent and Inventions:
    Invention Office of DPR Korea
    Address: Kinmaul 1Dong, Bipa Street, Moranbong Dist.,
    Pyongyang, DPR Korea
    Tel: (850-2) 381 18111. Ext:8544
    Fax: (850-2) 381 4410
    E-mail:kpipo@co.chesin.com
    Head of office: Kim Il Hyok, Director General, DPRK Invention Office

    For Trademark and Industrial Design:
    State Administration for Quality Management
    Address: Songyo 2 Dong, Songyo Dist., Pyongyang, DPR Korea
    Tel: (850-2) 381 18111. ext:8989
    Fax: (850-2) 381 4480
    E-mail: saqm@co.chesin.com
    Head of office: Kim Hyon Chol, President, DPRK State Administration for Quality Management

    For Copyright
    DPRK Copyright Office
    Address: Donghung-Dong, Central Dist., Pyongyang, DPR Korea
    Tel: (850-2) 18111.ext:8883
    Head of Office: Jang Chol Sun , Director Fax: (850-2) 381 4410
    E-mail:kpeic@co.chesin.com

    There are two law firms based in the DPRK that liase with these agencies on behalf of foreign interests. These agencies are:

    KoryoPAT- Rainbow Patent & Trademark Agency
    P.O. Box: 19, Ryonhwa-dong 1, Central District,
    Pyongyang, DPR Korea
    Tel : +850-2-18777/888, ext: 8048
    Fax : +850-2-3814644
    E-mail : dmw@co.chesin.com

    The KoryoPAT-Rainbow (Patent and Trademark Agency) was founded on August 15, 1986 and restructured on Oct. 15, 2003 to meet the requirements of the 21st century in its IP international transactions.

    KoryoPAT-Rainbow is full service business law firm. With affiliation in Government advisory bodies, industrial and commercial sectors, lawyers, organizations and international associations, the KoryoPAT-Rainbow provides the clients with a most efficient and affordable legal services.

    The KoryoPAT-Rainbow holds it as its lifeline to serve their clients efficiently, qualitatively, speedily and creditably.

    In the KoryoPAT-Rainbow there are over 50 staffers with 20 attorneys and agents who, as university or college graduates, are well versed in chemistry and biology, metallurgy, mechanics, electric & electronic engineering, computer software & hardware, and other fields of science and technology. They have been specially trained in IP transactions in an efficient way.”

  116. Gene,

    I’ve read many of the comments arguing against your advocacy of an effective patent system – most of which seem rather narrow.

    Here are additional points in support of your arguments for an effective patent system:

    1. The economic and technical progress of mankind has been extremely slow until the last 200-300 years when intellectual property protections (patents), promoted by and in conjunction with reasonably equitable forms of government, came into being. More economic and technical progress has been made during the last 200 years than in all the prior history of mankind. The industrial and economic progress of the United States came about largely (but not only) due to its patent system.
    2. In order for a patent system to promote desired economic benefits, it must be FAIR and EFFICIENT rather than serve special interests. The first patent commissioner of the U. S., Henry Ellsworth, set forth some excellent standards and ideals which served the US patent system well for many years. However, big money influences have caused a deterioration over the years.
    3. Without patent protection, (or with inadequate patent protection) only people (or governments) with substantial resources can afford to develop new and significant technology. Without patent protection, any inventor of common means is savaged and robbed.
    4. It can be truthfully said that the economic progress of any nation will be in direct proportion to the justice done for its inventors and creators. The best way, so far, to do this is with a FAIR AND EFFICIENT patent system.
    5. Actually, since general society benefits indefinitely from meaningful inventions, it has an obligation to protect the intellectual rights of inventors. People who complain about the cost of a patent system are shirking their responsibility.
    6. Specifically, a software package should be patented ONLY if it is in fact a new and useful invention. Otherwise, it might be due a copyright.

  117. @Richard Raney
    I don’t think many are arguing against the patent system as a whole. They may be arguing that Gene is overplaying the role of the patent system (not surprising giving his occupation) and providing contrary examples and arguments, though. I think we can all agree that if we have a patent system, it should be fair and efficient. The issue is that many feel that the current system is not fair and efficient in regards to at least software. Protection of inventors and authors plays a role in innovation, but the protections come at the cost of removing rights from others, and removing too many of these rights can result in less innovation and creativity. I would offer as an example the more public-centric systems of the US and England and argue that they were superior to the author/inventor-centric system of France. Healthy levels of competition are also very important to innovation, perhaps much more so than patent and copyright, and many cases of patent usage are arguably driving competition out of markets and creating monocultures. Interoperability is very, very important to software, and patents can get in the way of interoperability, as I’ve detailed with my earlier MPEG-LA and TomTom examples, where patents are used in a way that borders on racketeering.

  118. @Bobby

    Your comments are appreciated. I agree that in technical fields such as software where interaction is important, royalty demands by patented software elements should be limited. This way, patents will never hinder anyone because royalties (if reasonable) do not cost anything until revenue is generated. This is an area where improvement is needed in the patent system.

    In other words, when a software developer encounters a patented element he needs to use, he can simply agree to a (reasonable) royalty and thereby avoid infringing the patent/s. This is one of the reasons for doing pre-search. By doing a pre-search, it may be possible to find that the entire proposed software package is already developed and patented – in which case it can be obtained through licensing instead of wastefully developing something already developed. This hinders no one and provides incentive to be first in developing NEW and beneficial technology – and makes it possible for the inventor to earn something for his labor.

    As you know, many companies have reciprocal licensing agreements to facilitate interaction of their technologies.

  119. As you say Bobby the TomTom example proves the limitations of the patent system. I referred to Cisco and its and other’s stand on how network standards should develop outside of patent claims. By that reasoning the same should apply to file systems, especially when an actor wants to make it a standard for a variety of devices. There’s nothing innovative about these in comparison primitive file-systems and innovation of course has to take place when creating devices that uses file-systems for interoperability with other devices.

  120. 2. In order for a patent system to promote desired economic benefits, it must be FAIR and EFFICIENT rather than serve special interests. … However, big money influences have caused a deterioration over the years.

    @Richard Raney (comment 117)

    The recited purpose of patents is to promote the progress of **science**, not of the “economy”.

    I suspect that you have the two concepts confused in your head, but probably you are far from alone.

    So let’s go into our way-back time machine and take a trip to say, the 1950′s.

    You are at a Board of Directors meeting of a large tobacco company and the “economy” has been quite good for us. More and more folk are getting addicted to our “improved” higher nicotine product line.

    But then in comes this troubling thing called “science” which starts to suggest that our great and economy driving product line might be linked somehow with this “cancer” disease. How dare they! Don’t they know that economics trumps “science”!

    We hear word of some inventor tinkering with a machine that will allow for early detection of lung cancer. That will be really bad for our “economic progress”. How can we suppress development of such scientific gizmo’s? We know. Let’s kill the patent system.

  121. @Richard Raney
    I agree that some form of compulsory licensing would be a step in the right direction, although it would seem to preclude unhindered distribution models including those used by FOSS, shareware, and trial demos. These methods are important and widely used, and one could argue that a system is only fair for the market if there was some mandated reasonable option available that can fit them (Part of Nero’s antitrust case against MPEG-LA involve claims that MPEG-LA’s position on trial software was changed after Nero agreed to licensing). In that case, the concerns of software patents would be considerably less, although the ability for large firms having the resources to file disproportionate amounts of patents would still be a problem.

    I think one of the more complicated areas of dealing with software and legal rights is that it is authored and functional without a clear distinction between the two (comments, variable names, and perhaps the specific messages output to users or logs are arguably not functional elements) words in phrases. Source code is HOW software works in fine details, and would make a decent candidate in the minds of many as to how a software patent should be written (removing the non-functional elements previously listed and adding the elements a patent application needs that source won’t provide), particularly among those who point to software as more like new machines. However, independent source code works in a different manner and even a later version of the same software works in a different manner. Thus, patents in the form of source code would be largely useless, since independently written code would have virtually no chance of infringement, while forcing more exposure and a shorter term than copyright.

    Abstraction from the physical element gives programmers virtually unlimited ways to solve a complex problem and thus virtually unlimited open space (there are limited reasonable ways to write “hello world” in a single language), much like any sentence over about five words, outside of a popular expression , catch phrase, or quotation is almost certainly unique, even on topics that have been discussed in great detail. However, there is a good chance of saying something with a similar meaning or using the same line of logic. It seems that broad software patents would be much like patenting a fairly vague line of logic and that truly specific patents would be of very little utility to patent holders. I have a problem with the former, but the latter would be fine by me.

  122. @step back

    Having dealt with the patent system for 50 years, I am not confused. You should know that the proper role of the patent system is not and should never be to judge the commercial or economic value of any invention. For instance, a patent examiner only evaluates a patent application do determine if the invention is in fact new and original, but never attempts to judge the commercial value of it – the market does that. When the system works as it should, the patent protection afforded enables the inventor to realized the market potential, if any, without being robbed.

    Also, the patent system provides a point of reference for each field of invention so that, by diligent participation, developers can avoid wastefully duplicating what has already been developed.

    I, for one, believe the patent system needs to be substantially reformed and improved so that it does what it truly needs to do.

  123. “When the system works as it should, the patent protection afforded enables the inventor to realized the market potential, if any, without being robbed.”

    Mr. Raney,

    I agree with you. Question please; wouldn’t “robbed” suggest when talking about patents, the claimed is without challenge ? My meaning — I claim to own something, and that something happens to be an idea, a creation of thought, thought that others could potentially have had as well just without my knowledge ?

    Because ideas are born from what gos on around us, what we see, the understanding of it all we gain as knowledge. The Law does not change this with patents. Patent claims are instances of knowledge from the world around them. The final form of claims is the inventor’s focus of the knowledge upon yet again, something from the world around the inventor’s grasp.

    To be robbed would mean someone owned something. Patents are not ownership, they are just documented work or works. Not trying to argue Mr. Raney, just wish to be active.

  124. @ New Here,

    Perhaps you realize that, in a civilized society, new and original ideas (inventions) are regarded as INTELLECTUAL PROPERTY regardless of how the invention is developed or arrived at. How an inventor gains the knowledge to create an invention is immaterial, so long as the idea/invention is new and original. This gives value to the universal body of knowledge, as well as to the specific new invention.

    This means that patent rights are in fact real property that are owned by the patent holder.

    The concept of, and respect for, Intellectual Property distinguishes an advanced (or advancing) society from a backward society.

  125. @Richard Raney

    Thank you for the reply.

    “The concept of, and respect for, Intellectual Property distinguishes an advanced (or advancing) society from a backward society.”

    That was just my point; just as a non patenting point of view though …the long way as I do it.

  126. @Richard Raney
    Calling it property is a bit inaccurate in my opinion. It has some similarities to properties in that the rights are transferable, but there is a concrete limited time and scope, and even a strong degree of ambiguity of validity. If you want to play the property metaphor, authors and inventors are borrowing rights from the public temporarily, but in a sense, the public owns an idea as soon as it is released to the public, but has some restrictions until the point where the loan, subsidy, handout, or whatever you want to call the limited period of time of protection is over.

    “The concept of, and respect for, Intellectual Property distinguishes an advanced (or advancing) society from a backward society.”
    I would disagree with this as well. France and many other European countries with similar traditions very strong protections for patents and copyright, and yet the UK and the US were two of the most dominant countries in arts and innovation in the last century, while generally having much less protection for artists and inventors. The concept of IP is pretty much nonexistant on the internet, and yet it is probably the most vibrant area of innovation and progress right now.

  127. You should know that the proper role of the patent system is not and should never be to judge the commercial or economic value of any invention.

    @RR (comment 123)

    That’s funny. I seem to recall a “commercial success” test as one of the indicia of nonobviousness.

    But then again, I don’t just yet have a full 50 years logged in as a patent professional. ;-)

  128. If you want to play the property metaphor, authors and inventors are borrowing rights from the public temporarily, but in a sense, the public owns an idea as soon as it is released to the public

    @Bobby (comment 127)

    No disrespect intended here sir, but your posts evidence a lack of education in the history and foundation of property rights and instead a swallowing of fabricated dogma from the anarcho-libertarian camp.

    Historically, modern property rights evolved from feudal claims by kings (sovereigns) of exclusive control and ownership of all lands and serfs in their kingdom. Nobles were given temporary feefdoms over subdivisions of the King’s ownerships in trade for their pledge of fidelity to the King.

    Even in modern times, if you die without heirs, your land holdings (real estate) reverts or escheats back to the sovereign.

    When it comes to IP, an inventor is free to destroy his invention after secretly proving to him/herself that it works. (Eureka! My desktop fusion machine works. But now I will destroy it because those good for nothing, or only for themselves, anarcho-libertarians say I am not entitled to even temporary exclusive rights in the invention that I alone created. Well in that case, F_ them. I shall film it working and then destroy it and then send them a copy of the film to chew on along with their cud.)

  129. @RR
    As I understand it, the earliest remotely modern copyright was basically a way to spread works that advocated the church and/or kingdom, while keeping woks of dissent from mass production. However, that is not a just usage of copyright, as were man other laws at the time. Property law and the basis of it has changed greatly as well, and is generally centered around natural personal rights. “Intellectual Property” behaves differently than personal property and real estate and doesn’t require being property t be just, so the term is a bad and misleading term, especially when the general population has a had enough time understanding the differences between trademarks, copyright, and patents without muddying the waters with intellectual property and calling copyright infringement theft.

    “When it comes to IP, an inventor is free to destroy his invention after secretly proving to him/herself that it works. (Eureka! My desktop fusion machine works. But now I will destroy it because those good for nothing, or only for themselves, anarcho-libertarians say I am not entitled to even temporary exclusive rights in the invention that I alone created. Well in that case, F_ them. I shall film it working and then destroy it and then send them a copy of the film to chew on along with their cud.)”
    I didn’t say that patents are bad. I said they are not property, and treating them as a natural right can be more disastrous than not having any protections. I’m saying that the laws regarding it should be what results in the best for the public, not the rights holders. if the US government were to invent and freely license designs for a machine that costs $5 to build and creates songs, plays, software, inventions, or works in any other field once a day with the skill of a master in that field, then any copyright and patent laws would no longer have any justification. Likewise, copyright and patent laws or changes to said laws that do not result in enough value of works being produced to justify the restrictions on the public are unjust.

  130. also, regarding your invention destruction scenario, yes an inventor could chose to not reveal their invention to the public., and many have. Of course, your example only holds true if there is not enough benefit in releasing the device without the protections of patents, and it doesn’t really have anything to do with my point that overly expansive copyright and patent laws can have a negative effect and that calling them property isn’t totally accurate.

  131. @step back
    “fabricated dogma from the anarcho-libertarian camp.”

    I must have created this misunderstanding.

    Let the Law end every so-called “illegal thing” now !!!, downloading …and so on — take it away now !!!
    Even with those things going on now, people cannot get everything they need / want downloading / copying it …kinda hard to download / copy a FREE car ? Kinda hard to download / copy many things that patents touch and depend on for making money for their owners.

    People could just stop buying those things that cannot be downloaded or copied. Keep your money, I would say in agreement, seeing most have patent ties anyway. The same can apply to software as well, with no illegal downloads ! they are simply not needed, because the choices are to spend less money with those that do not patent and offer better products… and no not just open source ! The kicker here, is until someone finds the way to claim “everything software”, lots of money will just not be made !

    Seems we forget the “anarcho-libertarian camp” spend money too … remember ? Yes, we buy patented computer hardware, patented food products, patented tires for our cars… we could just stop to a larger point ? then most people are already doing ?

  132. Seems we forget the “anarcho-libertarian camp” spend money too … remember ? Yes, [they] buy patented computer hardware, patented food products, patented tires for our cars…

    /begin sarcasm

    But all these things come to the anarcho-libertarians through the natural entropic forces of the free market place and not in any way by efforts of real person inventors who sweat by the brow and bleed when you prick them by robbing them of just compensation for their inventive efforts

    end sarcasm/

  133. Step Back confuses property’s legal history with its ethical foundation. Yes, for a long time, sovereigns committed the unethical act of claiming the land upon which their subjects toiled as their own, as modern sovereigns do today as well. But the valid rights to ownership emanate from the fact of a person’s occupation and improvement of the land (or other tangible object) regardless of the sovereign’s claims (see, e.g., Locke). Just because the law is so, doesn’t make it just, unless you’re a positivist. Given Step Back’s past post-modernist musings, his hopeless positivism is unsurprising, I suppose.

  134. But the valid rights to ownership emanate from the fact of a person’s occupation and improvement of the land (or other tangible object) regardless of the sovereign’s claims

    DK @comment 134

    No need for you to reply because we all know you are an avowed anarchist-libertarian. At least you are honest about it. Kudos for that.

    But as for others who haven’t given it more than a flash in the pan of thought, this what DK’s proposition says:

    You leave your home and go to Europe for a 2 week vacation.
    I break into your home a day later, take possession of it, “improve it” (i.e. by giving one room a fresh coat of paint) and now I validly “own” it under DK’s theory of “natural” ownership despite any sovereign’s or your claim to the opposite. Hey, but that is what anarchism is all about. Now you see it in the light of day.

  135. how silly, that’s anarchy, not anarchism. The cornerstone of functioning anarchism is respect for property rights. To validly own something not in your immediate possession, leave indicia of ownership so that your intent to repossess is clear. The law recognizes this. Bad owners who fail to do this can easily lose their stuff. If you go to Europe and abandon your legally-owned and titled property, and someone else occupies it openly and notoriously, and improves it, then they can take adverse possession under the law (after a suitable time). The new occupant could title to the land legally, and I contend, ethically.

  136. @step back
    “No need for you to reply because we all know you are an avowed anarchist-libertarian. At least you are honest about it. Kudos for that.”
    Ad hominem is not a good way to start an argument, and being an anarchist-libertarian (not an actual term as far as I know. If you want to grossly oversimplify, libertarians are just moderate anarchists) doesn’t make a claim invalid.

    “I break into your home a day later, take possession of it, “improve it” (i.e. by giving one room a fresh coat of paint) and now I validly “own” it under DK’s theory of “natural” ownership despite any sovereign’s or your claim to the opposite. Hey, but that is what anarchism is all about. Now you see it in the light of day.”
    Hey didn’t quantify what degree of occupation and improvement gives you these rights, but that doesn’t mean that the degree in your example applies. What he says is actually somewhat true in at least parts of the US with squatter’s rights. The historical viewpoint of real estate was that God gave the king the authority to control land, and the king divvied it out to lords or whatnot who divvied it out further until we have peasants with small plots of land in a feudal system, so DK’s example is certainly closer to how it works now. Of course, not all land is acquired by those means, but I doubt DK was saying that owners can’t legally transfer ownership of goods, but rather, that land and possibly other goods can be acquired through other means.

  137. @Bobby (comment 137)

    The historical viewpoint of real estate was that God gave the king the authority to control land, and the king divvied it out to lords or whatnot

    We never-too-bright lawyer types kind of know about the law of “adverse possession”. ;-)

    Guess what? They teach it in law school pretty much in first week or month of basic property law class (right after the case about the two hunters arguing in the woods as to who owns the dead fox, the guy who shot it or the guy who got to the carcass first).

    Guess what more? Most kings, queens and feudal lords adversely possessed and improved their land holdings over the course of usually hundreds of years. So even if you go with DK’s theory of “natural” ownership, they still “own” it.

    The bottom line in DK’s philosophy is this: What’s mine is mine and what’s yours is mine –and that includes the Intellectual Property (IP) that you developed with the sweat of your brow. It’s no sweat off of mine, heh heh.

  138. I, too, have noticed that many or most of those in the anti-IP crowd often conflate copyright and patent law, as if they were more or less the same. I, too, have become frustrated about this, because it demonstrates a willful or (or negligent) ignorance. It also indicates that many anti-IPers are motivated more by ideology than by reality. And, annoyingly, many of those who are least informed seem to rant the loudest.
    http://smallbusiness.aol.com/2010/05/10/how-to-file-a-patent/

  139. “Most kings, queens and feudal lords adversely possessed and improved their land holdings over the course of usually hundreds of years. So even if you go with DK’s theory of “natural” ownership, they still “own” it.”
    This is sort of off topic now, and who had natural rights a la Locke to land during feudal times isn’t particulaly relevant. To get closer back on the point, I would say that in many respects, from a practical perspective, the feudal lords and lesser entities were effectively just renting or leasing the property from the king. If a lord stopped having allegiance to the king, he would probably lose his rights to the land (and possibly his life), and since he had permission, it would not be adverse occupation. The king’s claims to the land, while somewhat questionable in ethical legitimacy, were by no means statutorily limited in duration, because as you said, they had control for hundreds of years, and challenges to their claims on land and other rights often happened by force. Thus, the king’s side does not counter my claims at all.

    “What’s mine is mine and what’s yours is mine –and that includes the Intellectual Property (IP) that you developed with the sweat of your brow”
    I believe the sweat of the brow doctrine has been rejected in the US, which is why phone books generally aren’t covered by copyright and certainly isn’t covered by patents (where obviousness excludes it), which again deviates from the idea of property as we currently understand it. I can make the most generic t-shirt in the world and it will still be my property.

    patents and copyright have similarities to personal property and real estate, but they also have significant differences (particularly in the American tradition), and the offenses against them are completely separate to traditional property offenses. The general public has a hard time differentiating patents, trademarks, copyright, etc. already, so what purpose does calling various legal intangibles “property” serve besides working as an emotional ploy to make the masses more likely to side with rights holders?

  140. @patent litigation

    Have something to read:

    Follow down, then read the second paragraph after [' In reversal, IBM opposes the patents ']
    It quotes someone that knows the Law ! for sure ! Read about what he had to say about a given area of patents.

    Oh please read this:
    http://www.businessweek.com/technology/content/jun2009/tc2009061_905686.htm?chan=top+news_top+news+index+-+temp_news+%2B+analysis

    Seems opinions about patents are shared by those knowing the Law and those not.

  141. @Step Back

    Probably the reason you suggest I have “no need to respond” is so that your straw men appear not be be straw men…

    You should know better then, recounting your property law class… my philosophy is Locke’s: labor mixed with possession of land or moveables equals ownership as a matter of natural right, despite what a sovereign might say or do. As for “intellectual” property, which is non-tangible, non-rivalrous, and non-exclusive naturally, Locke would likely oppose it: responding to the Stationers’ Company monopoly on printing, he stated it was a “manifest . . . invasion of the trade, liberty, and property of the subject.”

    …bringing it all back to the original post, however, developers can and do choose open source methods because they tend to work for some types of products (even in the early 20th C, automobile manufacturers created a patent pool — they would contribute their IP to it freely, and share it among each other with no threat nor risk of suit — to prevent litigation and share innovations in automobile manufacture), especially for innovations far upstream. Many open source proponents still respect IP, and yet validly claim that open source actually propels innovation by avoiding patent thickets (again, especially far upstream). Although it might threaten the livelihood of patent attorneys, none of Gene’s claims, or those of others who oppose open source here, support the claim that open source slows innovation.

    Equating openness about IP with negligent ownership of private property is neither historically warranted, pragmatically true, nor useful. It’s apples and oranges. They are non-overlapping magesteria, to quote Stephen J. Gould from another (somewhat similar) debate.

  142. @David Koepsell

    so that your straw men appear not be be straw men

    LOL

    My “strawman” melts your Wicked Witch of the Wild Anarcho-Lib West territory when a douse of reality water is splashed on her. (help! I’m melting, i’m meltttin ….)

    Kings and Noblemen did “labor” upon the land and improve it while adversely possessing it and thus even under the logic of your Wild Anarcho-Lib West theory they had legitimate “natural” ownership of it.

    Inventors do “labor” over their inventions with 99% perspiration added to the so-called 1% inspiration and they do exercise “exclusive” and thus adverse control over their inventions while developing them. Thus they too have legitimate “natural” ownership of their inventions even per your so-called natural rights theory.

    Just because you wave your Wild West witch wand and say, pay no attention to the intangible or to that little man manipulating behind the curtain doesn’t mean you succeed in fooling all the people all the time.

    “Electricity” could be said to be “intangible” (although I would not recommend placing your hands on both bars of the 240V AC line to see if you can “feel” that which you don’t see). Are you saying that the Electric Company doesn’t “own” it and you don’t have to buy it, you can simply take of it because it is in the commons? After all, look at all the lightening in the commons of the sky.

    Stories in books and movies could be said to be “intangible”. Are you saying that the Publishers/ Producers of the books/ movies (and at the end of the line, companies like Barnes & Noble, Borders, Amazon) don’t “own” it and you don’t have to buy the book or the theater ticket, you can simply take for free and also copy it because it appears to you to be in the commons (i.e. pirated and distributed over the internet) and intangible?

    Like I said (and like Dorothy and Toto also understand) your ultimate motto is this:

    What’s yours is mine and what’s mine is mine.

    That’s the Anarcho-Libertarian screed.

  143. @Step Back

    sigh
    more straw men…

    inventors do labor but don’t conjoin it with land or moveables (you own your labor, but not all things that come from that labor)

    electricity is quite tangible, that’s why I don’t stick my fingers in sockets (much to your chagrin, no doubt)

    ideas are intangible, expressions are tangible.

    but this is all elementary, though surely you’ll bicker. It’s what you seem to like to do, however haplessly.

    what’s mine is mine, what’s yours is yours… that’s the foundation for true free-market anarchism.

  144. @DK,

    You get the last word here.

    (But you need to say, “Thanks” if it is truly going to be the last blast) ;-)

  145. Patent professors and lawyers have studied the patent system and have said that they patent system is not protecting innovations but are putting them at risk. Even with the best of legal system in place, it has failed to deliver the objectives.

    Please read “Patent Failure – How Judges, Bureaucrats, and Lawyers put Innovators at Risk” by James Bessen and Michael J. Maurer, Princeton University Press.

    The book doesn’t only talk about software alone.

  146. irj-

    No serious professionals believe what you write, regardless of the anti-patent professors. Of course the patent system fulfilled it’s objectives. All evidence shows that clearly. You should start reading more from those in the industry who know rather than those who guess without any experience to support their crazy theories.

    I suggest you start by reading

    http://ipwatchdog.com/2010/10/10/patents-in-the-real-world/id=12754/

    Clearly those who run and start businesses know what patents do and that they are essential in some industries to get funding and create jobs. Of course, I’m sure you’ll agree without funding there can be no innovation. Thus it is ondisputablr that patents foster innovation. True, they prevent copying, but copying is not innovating. When will the intellectually dishonest anti-patent crowd ever get that simple truth?

    Sent from iPhone (a really cool patented innovation)

  147. @Gene

    The proof that patent system has failed to fulfill the objective is clearly shown in the above comments.

    There are definitely serious drawbacks in the current system.

  148. irj-

    Is that the best you can do? You offer no proof whatsoever, despite the overwhelming proof to the contrary. There are certainly drawbacks to the current system, but it has nothing to do with the patent right and the fact that the system fosters innovation. By allowing for inventions to be improved upon and patents obtained on improvements the march of innovation is ensured. Patents lead to funding, which is overwhelmingly proved by experience and studies, and funding leads to more innovation. So the fact that Congress chooses to inadequately fund the patent system is not a patent problem, it is a Congress problem.

    If you are going to make statements please back them up. Citation to others who are misguided and ignore the truth is not backing up statements, and your comment that the above comments prove that the patent system has objectively failed is ridiculous. I really expect more from those commenting on IPWatchdog.com.

    -Gene

  149. Gene,

    I continue to basically agree with you and appreciate your comments about the importance of the Patent System and the protections it can afford inventors. The concept of and protection of Intellectual Property, including patents, has been key to the development of the civilized world we now live in.

    As I’ve mentioned before, the challenge we are faced with now is “Patent Quality”. The Patent System needs substantial improvements and better funding.

    As for software, many software ideas/techniques (I don’t know the percentage) should not be patented. The Patent System should be equipped to screen those out. Some software techniques are truly innovative and should be patented.

    As for those who prefer “open source” software, they can forget patenting their software and perhaps gain adequate protection against copiers through licensing arrangements with customerss/users. Nevertheless, those who favor “open source” are obligated to respect the rights of those who do patent their software.

  150. Gene, thanks for this great article. I really liked what you said, “We ought to want to find the open spaces and fill them.” This is very true. This is essentially what creation is all about–what innovation is. That really hit home for me. We need to find things that need tweaking, find what open space technology has missed–then go fill it. Inventors need to make sure that they are smart though—they need to protect their ideas. Thanks again.