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Patenting Software: The Business Responsible Thing to Do


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: August 9, 2010 @ 6:31 pm
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Those who are in favor of open source frequently become near apoplectic at the thought that open source software can be, and in fact should be, patented.  The reality is that forward thinking companies that operate in the open source space do make use of the patent system.  A quick search of Freepatentsonline.com shows that Red Hat, Inc., one of the preeminent open source companies in the world, is named as the assignee on some 263 US patents or US patent applications.  So if you are about to make an enormous mistake and listen to the “open source means free” community, ask yourself why a highly successful company like Red Hat uses the patent system and acquires patents.  If patents are good for Red Hat, an open source company not at all enamored with the existence of software patents, then why are software patents bad for you?  Shouldn’t you model your business off successful companies?

Whether the “open source means free” community ever chooses to acknowledge it, the truth is that a patent is a business tool; an asset.  If you are serious about being in business in the software space you absolutely must have patents.  Yet, there are those in the “open source means free” community, which simply a naive anti-patent sector, would have those throughout the open source community incorrectly think patents are evil.  They complain that patents shouldn’t be protected by patents and copyrights are enough.  They claim it is too hard to figure out if you are infringing.  What they are really saying is that they choose not to operate their business affairs in a business appropriate fashion and in order for them to succeed while ignoring best practices and being responsible like every other business and industry they need patents on software to cease.  This chicken little approach proves only that they are not business savvy, and that they aren’t paying attention to developments in the industry.

A study conducted by the University of California at Berkeley Law School finds that patents are viewed as essential by investors, finding: that “many potential investors… said that patents were important to their investment decisions.”  See Patenting by Entrepreneurs: The Berkeley Patent Survey (Part III of III). In fact, the study revealed that “[o]f companies negotiating with VC firms, 67% report that these firms indicated that patents were an important factor in their investment decisions.”  The Study also revealed that the importance of patents was not limited by industry, finding that patents are an important factor with VC firms as follows: “60% for software companies, 73% for biotech, and 85% for medical devices.”   The survey of respondents also found “that substantial percentages of other types of investors, such as angels, investment banks, and other companies found patents important to their investment decisions.”  So if investors on every level are interested in whether you have a patent portfolio or one in the works, why would you handicap yourself right out of the gate?

Let’s be perfectly honest.  If there were proof that showing up to a meeting with a VC or Angel wearing a polka-dot tie would be more likely to result in a deal being reached then everyone would be wearing polka-dot ties to such meetings.  So why then with proof that investors value patents would you ever consider walking into such a meeting without a patent strategy?  Talk about acting in irresponsible ways!  This anti-patent ideology merely gets in the way of doing the business responsible thing.  Letting ideology get in the way of doing what is right and responsible is nothing short of breathtakingly stupid!



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Even an anti-software patent article by Vivek Wadhwa, which relies on the aforementioned Berkeley Study as well, explains that while an entrepreneur he needed to raise funds.  He honestly writes: “I needed to raise financing, and VCs wouldn’t give me the time of day unless I could tell a convincing story about how we, alone, owned the intellectual property for our secret sauce.”  He then goes on to explain that those in the software community don’t view software patents as contributing to innovation and, therefore, they should be abolished. So despite the fact that software patents are prized by investors they are evil and unnecessary?  That type of ideological buffoonery would be amusing if it weren’t for the reality that it will influence others and start them off on a course destined to result in business failure.

First things first, a reality check.  Software patents are not going to be abolished.  The Supreme Court had a chance to do just that in Bilski v. Kappos, and 8 out of the 9 justices clearly felt that software should be considered patent eligible.  Given that Congress cannot enact patent reform that virtually everyone in the industry has agreed upon, there is exactly a 0% chance they would ever abolish software patents given that would significantly and negatively impact the United States economy and touch a wide array of industries that are increasingly relying on software, a simple example is the biotechnology industry and bioinformatics.

Second, exactly how many large, successful, technology companies do not have a patent portfolio?  Those who are predisposed to disagree with whatever I write won’t take my word for it, but why not take 5 or 10 minutes and go to Freepatentsonline.com and search to find out.  Here is the search to do — an/”COMPANY NAME”.  This will search the assignee field.  Be sure to check and search for both issued patents and patent applications.  After you confirm that every large, successful technology company you thought of has an interest in patents then ask yourself this question: If it works for them whey wouldn’t it work for me and my company?  All of these companies started off small and grew, and they did it with exclusive rights protecting their innovations.  So don’t model yourself after companies that fail, and don’t pretend that investors don’t care about patents.  All of the evidence is to the contrary.  Don’t let ideological buffoons convince you to do what you know doesn’t make sense and isn’t business responsible.

But what about the fact that software patents don’t foster innovation?  Yes, there are those against software patents because they claim they stand in the way of innovation.  They offer absolutely no proof, yet we are supposed to believe them.  They cite the anecdotal evidence of those in the industry who complain they cannot innovate because of patents, but the truth is that if patents stand in your way you were not at all likely to have innovated anyway.  Furthermore, most in the anti-software community don’t do patent research and urge others in the industry not to do it out of some ridiculous notion that not knowing will be to their benefit.  Not knowing only makes it more likely you will do something that infringes, because there is no innocence or independent creation defense to patent infringement.  It also means you won’t innovate because innovation requires finding open spaces and advancing.  Reinventing the wheel is not innovative.  It is copying!

The truth is that if you are in the software business you are likely to at one point in time or another to infringe a patent owned by another, or at least to be so accused.  This is for many reasons, not the least of which is that many of your programmers, even the ones you employ and particularly the ones whom you hire as independent contractors, will be lifting code from wherever they can find it.  Even if they are not lifting code from others, many computer programmers show complete and total indifference to the intellectual property rights of others.  This means they take no time to determine whether what they are about to do is going to violate the rights of another, or they intentionally ignore patents out of some kind of moral righteousness.  Whatever the case, it is really only a matter of time before you have some kind of patent issue on your hands.

So a critically important aspect of software patents is that they offer a form of insurance to the owner.  If you have one the likelihood is there are others infringing your patent the same way that there is a likelihood you are infringing patents owned by others.  So by having a patent portfolio you can hold others at bay because do they really want to engage in a patent war?  No.  Not even Microsoft wants to engage in patent wars, which is exactly why they have for years claimed that open source software widely violates their patent rights.  They know full well that if they launch a patent infringement lawsuit then the Red Hats of the world will launch back because it is virtually guaranteed that Microsoft is infringing at least some of the rights of the various open source collectives, which operate as patent pools.

The trouble with software patents is in not having them.  Without a software patent or a growing portfolio it is harder to attract investors and you are a target for others with software patents rather than an adversary that needs to be respected.  We all know it is already hard to attract investors.  Do you really need to make it any harder?  We all know that in the United States it is easy to launch a lawsuit.  Do you really want to take away the mutually assured destruction calculus and let a big bully of a Mega Corporation to see suing you as a no-lose situation?

Those who dominate most of the so-called debate, which is really little more than unenlightened vitriolic criticism, simply do not want patents period.  They choose to ignore the benefits of the patent system and counsel inventors and businesses to forgo patent protection out of ideology, not as a result of any well considered and developed business plan or strategy.  They also like to pretend that the software industry is different, but it is not.  Business is business and a patent is an asset like any other, with the difference being that is is more valuable than virtually any other assets you might possess.  But that presupposes you seek to possess a patent.

The software industry is not isolated and is not different.  The “software inhibits innovation” argument is ridiculous and wouldn’t be worthy of even giving it the time of the day if it weren’t such a widely held misconception.  The truth is every industry could say that, at least once you realize that the software definition of “innovation” is not what anyone in the scientific community would consider innovation.  To those in the “open source means free” or anti-software patent communities the term “innovation” means “independent creation.”  The trouble, however, is that those who independently create might not only not be innovators, but they are at least somewhat likely to be infringers.

Finally, let’s assume for a moment that software patents do stand in the way of innovation, which is to ignore all historical evidence to the contrary and to buy into a paranoid fiction.  WHO CARES?  Do you as a business owner care whether software patents stand in the way of innovation?  Of course not.  What you care about is making enough money to keep the lights on, employees working and a profit going into your pocket or the pocket of your investors.  Whether software patents foster or harm innovation doesn’t matter in the least from a business standpoint.  The reality is investors by and large demand software patents and they offer insurance through a deterrent effect, which is enough in and of itself to lead responsible businesses to pursue them.

By all means, if sand surrounding the extremity above your shoulders is to your liking be against patents and for ideological reasons put your company at a severe disadvantage.  There is no remedy for an irrational hatred, and no cure for those who choose to engage in business while ignoring sound business practices.

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Posted in: Business, Gene Quinn, IP News, IPWatchdog.com Articles, Open Source, Patent Business & Deals, Patents, Software, Software Patent Basics

About the Author

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

 

95 comments
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  1. Gene,

    as for the patents you mention that Red Hat for one, now have, they are as many patents by non-open source companies and business as well. Those patents to protect themselves from those with very different ideas about patents. Not because they value them.

  2. New Here-

    You miss the boat entirely. Of course they value them. Don’t fool yourself. If they didn’t value them they wouldn’t have them and wouldn’t waste the money on them. Some just value them begrudgingly, perhaps because investors like them or because they offer a deterrent strategy. But make no mistake, they are valued and they are valuable. They factor into the valuation of a company, which impacts stock price. If they were not valued or valuable then those that are acquiring them would be misusing funds and unjustifiably eroding shareholder value.

    Let’s try and keep it honest, OK?

    -Gene

  3. @Gene

    I am being honest, OK?

    Gene I like to offer links when I can, I offer this one. I found this article makes one good overall point about why so many obtain patents to protect themselves. It really in many cases has nothing to do with value beyond the protection offered.

    http://www.verticalpulse.com/my_weblog/2010/01/how-sun-tzu-would-outflank-patent-trolls.html

    Red Hat’s shareholders have a value base on a market for what Red Hat offers. Through big name sellers as IBM for one, that sells hardware and Red Hat Linux on it worldwide to business of all types, Governments at all levels, industry across the board. IBM today that is turning a profit from software it does not own or produces in many cases. Patents are a part of the landscape as long as their threat continues to those that have the choice to develop and not patent that is their right. Nothing in the Law say you must patent. The over importance of patents is making a growing problem larger.

  4. @Gene Quinn
    I think the value is probably similar to the value that paying off a protection racket has. Sure, paying it has results better than not paying it, but it’s avoiding a hardship, not gaining a benefit.

    I would disagree with your claim that business owners should be indifferent to the effect of software patents. The health of the software ecosystem is important to your business in the long run, and not acknowledging that is myopic.

    Another problem with the article is that sometimes patents aren’t worth seeking and neither are patent searches, or at least staying legal with patents isn’t. The value gained has to exceed the cost, and i’m pretty sure every billion dollar software company, which would theoretically be practicing sound business practices, has been sued or patent infringement. This means that they didn’t do a patent search, did a patent search, and decided it wasn’t worth the manhours to work around or the licensing fees to avoid infringement, or that they did a patent search, and they missed a patent they infringe. If I had to guess, I’m sure all of these have occurred, and that somebody determined it was more economic to break the law than to follow it, and they were probably right in many of the infringements they didn’t get sued for. With acquiring patents, some firms may have better things to spend money on. Yes, having patents is preferable to not having patents, but they have a significant cost, and many patents may have a limited value

  5. New Here-

    You are right, there is no legal requirement that you must get a patent. But that cuts in my favor and against the fact that you say that those who get patents don’t value them. Of course they value patents otherwise they wouldn’t waste the tens of thousands of dollars it takes to get them.

    -Gene

  6. Bobby-

    You say: “I think the value is probably similar to the value that paying off a protection racket has.”

    Do you have any insurance? Do you have health insurance, car insurance, home owners insurance or any business insurance? Do you think that is a “protection racket” as well? Just checking to see if you are going to be intellectually honest and consistent in your position.

    You say: “With acquiring patents, some firms may have better things to spend money on.”

    That is true, but if they make such a decision when they get sued they have only themselves to blame for not making different choices.

    You say: “Yes, having patents is preferable to not having patents, but they have a significant cost, and many patents may have a limited value.”

    I agree. Not all patents are created equal, and there is no doubt a cost that can be quite significant. That is why appropriate business determinations must be made. It is not always the answer to patent everything. Likewise, it is never (my opinion) the appropriate business decision to patent nothing. Patents need to fit into a larger business strategy. They are important defensive tools, assets and offensive tools, sometimes all at the same time.

    -Gene

    -Gene

  7. I have car insurance, but that’s the result of state law mandating it for all drivers.

    “That is true, but if they make such a decision when they get sued they have only themselves to blame for not making different choices.”
    It is their choice with how to deal with it, although I think it’s fair to argue that this is also due to the patent system, and the party that brings the litigation.

    “Likewise, it is never (my opinion) the appropriate business decision to patent nothing. ”
    I think it would depend on your firm. Some firms are too small for acquiring patents to be worthwhile, and some firms may only engage in fairly mundane activities. Of course, there is also operating principally in jurisdiction(s) without software patents, in which case you can avoid dealing with them altogether.

  8. @Gene

    “You are right, there is no legal requirement that you must get a patent. But that cuts in my favor and against the fact that you say that those who get patents don’t value them. Of course they value patents otherwise they wouldn’t waste the tens of thousands of dollars it takes to get them. ”

    Gene, I see your point but I don’t agree all the way. You’re placing value upon the idea that patents are obtained, and not on the heart of the reasons why. Those as Red Hat, “value” takes a whole different meaning. If I may now say they do not value patents as I think, you believe they do.

    Carrying one meaning across to different people will produce mixed reactions, because people do not all see things the same way. Value, and its meaning is one of them. You Gene, must understand this better then most, the importance of understanding the difference in views of something as value, in a Court.

    There is a love-hate relationship with open source, where patents are a silver bullet when you run across the pure of heart that take issue with your position. Red Hat as others have taken that risk, or otherwise be driven out of business. No waste, the tens of thousands of dollars spent to obtain important “tools”.

  9. While it can be argued that it might be nice to live in a world that didn’t have software patents (another argument for many other interesting threads here), that’s like arguing that it might be nice to live in a world that didn’t have private ownership of real estate. As much as you might like to build a house wherever you want to, the truth is that sombody already owns that piece of property. And naturally, there is no way to get a bank or anybody else with any business sense to provide a building loan if you can’t prove that you own, or at least have property rights to, the piece of land you are planning to build on.

    In the patent world, there is at least some land still available for the claiming – all you have to do is discover a piece of turf that nobody else has staked out and claim it as your own. Of course, that means you have to know what everybody else, or at least the people in the immediate area, has claimed. The higher the population density, the more difficult it is to find an unclaimed piece of property, and the more likely you are to stake your claim on somebody else’s land if you’re not paying attention.

  10. @Michael

    Seriously, claims being made today especially business software, using your real estate analogy, is more like buying someone’s house from under them without their knowledge. There is little respect for ownership today and that is my largest problem with software patents. The types of patents today are with the view that if it isn’t patented already, it is up for grabs. This is the failure of the PTO and the blame stops there, for allowing this to happen and go on as it has. Too bad ?

    Unlike your real estate analogy, that only deals with something that is limited, how much real estate is available to be clear. Information, and things that have long been around, before the gate was opened for software patents. These things are not real estate. Because the broken PTO that hands out patents without knowledge of what the patent application is really about is just weak and lacking responsibility for what is called innovation. Oh please.

    PTO handing out ownership at the same time pulling the rug from under others. Too bad I guess ? What a great idea of innovation, to just find what no one has patented and win the race to the PTO. I say race because that is just what it is. So many want the same “real estate” and only one winner. I don’t believe there is only one winner, I believe that patents cross over into one another, multiple claims on the very same things.

    Good luck, there is a growing number that are full aware of the serious problem with the way and types of patents, being granted. Thank the hard work of many taking up this problem and doing something about it because it could be a real mess,

  11. @Michael

    Please understand, the comments :Too bad ? and so, are not directed at you. They are about my thoughts of maybe an attitude with the pto.

  12. Yes, Red Hat has software patents. Reading Red Hat’s amicus brief in support of in re Bilski, I don’t come away with the opinion that Red Hat favors software patents. I get the distinct impression that Red Hat feels that software patents are generally harmful and would applaud if the Supreme Court had ruled them invalid. That’s not to say that I speak for Red Hat; I don’t. If software patents were to go away, Red Hat would lose some assets, but that would be offset by the reduced exposure to liability, and the market would probably see that as a net positive.

    Bilski was about business method patents, and it can hardly be surprising that the court didn’t rule more broadly. I’m still curious as to why the decision took so long. To me, the delay and the narrowness of the ruling imply that they debated a broader ruling, failed to agree on what such a ruling would be, and ultimately settled on a narrow ruling, leaving the broader issues undecided for the time being, knowing full well that other patent cases would ultimately be appealed and that they’d eventually have to revisit the issue. It seems they’re hoping that someone will eventually come up with a better test than machine-or-transformation.

    For many software companies, software patents aren’t like insurance. They’re more like ICBMs. You need them only because others have them. The problem is that the doctrine of mutual assured destruction doesn’t apply to software patents. Software companies fail, and their assets are sold off. Some of them get sold to patent trolls that aren’t actually engaged in the software industry and have little to fear from the defensive portfolios of other companies. Following the ICBM analogy, this would be akin to terrorists buying nuclear weapons from the former Soviet Union after its dissolution.

  13. New-

    You say: “You’re placing value upon the idea that patents are obtained, and not on the heart of the reasons why.”

    Not true at all. What is true, however, is that you continue to ignore that patents ARE being obtained and sometimes large sums are spent to obtain a patent and certainly to maintain a portfolio. So regardless of the reason why, there is value. They are an asset and provide a means to an end. They facilitate a business strategy. You said some obtaining them see no value, which is simply incorrect.

    You say: “patents are a silver bullet…”

    That is an extremely common misperception. You cannot simply obtain a patent and think everything is going to go well. Patents are a business asset like any other. They play a role, but in and of themselves they are not worth much. When they are a broader part of an overall business strategy, and there is an underlying business, they can be quite valuable.

    -Gene

  14. Re: comment by Michael at #9…

    AMEN!

  15. New Here-

    You say that patenting software is “more like buying someone’s house from under them without their knowledge.” That is 100% completely incorrect. You cannot patent something that is in the prior art, period! Perpetuating myths based on an irrational understanding of law and facts does nothing but spread fear. While so many claim this to be the case there is NEVER any proof. Programmers and others who moan about the patent system stop reading after the title or the abstract, so it is hard to have any pity for them complaining and/or modifying their behaviors based on things that are not true and their own ignorance of the law.

    The PTO is not to blame. If you don’t like the job the examiners are doing then place the blame where it belongs… at the feet of Congress. They underfund the USPTO year after year, and examiners have maybe 15 to 20 hours for an entire patent application. Given the increasing complexity of technology that is woefully inadequate. So why don’t you blame Congress?

    Your hatred for patents is showing. The PTO is not pulling the rug out from others when they grant patents, they are rewarding innovation. For those who are blinded by ideology and don’t seek patents that is a THEM problem, not a system problem. The law says that if you abandon, suppress or conceal something then it isn’t prior art. So all those who don’t seek patents and try and keep what they have come up with to themselves they are allowing others to walk right in. Those are the rules and failure to use the system to your advantage really means you forfeit the right to be upset at the outcome with others do.

    -Gene

  16. patents ARE being obtained and sometimes large sums are spent to obtain a patent and certainly to maintain a portfolio. So regardless of the reason why, there is value. They are an asset and provide a means to an end.

    Gene, what you’re really debating here is whether being forced into a patent arms race constitutes a perception of value. If everybody has to hoard patents so that nobody gets sued, they’re spending money just to tread water and maintain the status quo. Nobody regards that as an economic benefit or a positive value to the business, and most of these businesses (other than the ones actively licensing or litigating their portfolio, who clearly do see value) would be doing a lot better if everyone agreed to abandon the patent system entirely and pocket their prosecution expenses.

    I mean, sure I have insurance, and I guess I see some value in a policy that can turn a catastrophe into a mere disaster, but I don’t expect to ever turn a profit on my insurance policy. I take a loss on the policy because it mitigates the risk from a looming threat. If that threat were caused entirely by someone else taking out their own insurance policy for the same reasons, I’d have some serious complaints about the insurance system.

  17. Mark-

    Very interesting ICBM analogy. I tend to agree. Patent trolls are another story for another day though. I think if you look at those folks that are considered patent trolls they overwhelmingly prevail in court and the patents claims are litigated to the N-th degree and found to remain valid, so those are not examples of bad patents typically.

    Bilski likely too so long because the Stevens concurrence was likely originally the majority opinion and then when one Justice switched it became the concurrence. Most likely Justice Kennedy was the one who switched.

    I agree that Red Hat does not like software patents and I do think it is fair to say they generally think they are harmful, but they have them because they choose not to ignore the business reality that they exist and others have them. I have another article on this slated to run on Sunday, August 15, 2010.

    -Gene

  18. The number one driver for rising health care costs:

    Insurance.

    Discuss.

  19. Discuss.

    Insurance is bound to be the number one driver for rising health care costs, because it makes health care affordable. You pay a little bit at a time while you’re healthy and earning money, or better still your employer pays it for you, and when you’re sick you can have everything on the menu. The uninsured have a very hard time coming up with the money to pay for health care, particularly when their illness doesn’t allow them to earn money. Even if they own property. Uninsured medical expenses are the major reason why people default on their mortgages and get foreclosed.

    Insurance companies also take a profit, thereby adding another layer of cost.

    It’s rather like saying that mortgages are the number one driver for rising house prices. Sure, it’s true, but it’s also obvious and uninformative. Not to mention misleading, since mortgages don’t make it harder to own a house – they make it possible.

  20. “So by having a patent portfolio you can hold others at bay..” So it’s an arms race then. Thanks for providing evidence that software patents are a bad idea.

  21. Leif-

    You are a funny guy, and apparently not all that sophisticated or knowledgeable.

    If you want to conclude from this article that software patents are a bad idea then go right ahead. There is truly no helping some people from reaching asinine conclusions or just being flat out ignorant by choice.

    As the article clearly indicates, there are multiple reasons for software patents. The primary reason is to acquire investors. You can also use software patents to hold off competitors in a variety of ways, both from encroaching on your innovative space and in order to ward off patent infringement lawsuits. If you don’t like the “arms race” then I suggest that you forfeit your playing card and proceed to the nearest remote tribe, because that is the way the world works. Those who choose to ignore business appropriate decisions based on a ridiculous ideology that places an idealistic utopia over common sense and reality are doomed to fail.

    -Gene

  22. Blind-

    I am not entirely sure that insurance is the number one driver for rising health care costs.

    Most money is spent at the end of life, so the final years of life are driving costs. I suppose that if folks didn’t have insurance at the end of life that would be one solution.

    Another key driver of rising health care costs are those who obtain health care for free. I hated hearing in the health care debate that we don’t have a national health care system and many are not able to access health care. Anyone who spends any amount of time in an emergency room, particularly in an urban setting, knows that everyone willing to wait can have completely free access to health care, which is why those of us to pay and/or have insurance pay crazy rates for services and ridiculous amounts for a pill, such as Tylenol. We have had 100% access to basic health care for many years, it is just so inefficient it drives up the cost.

    I also think divorcing the recipient from the market economics associated with health care is more to blame than insurance. Sure, that is a byproduct of employer offered health care, but without some kind of co-payment health care is free and over used.

    -Gene

  23. I love open source and I love patents (not that either doesn’t have issues).

    One of the main purposes of patents is getting innovators to disclose their innovations. One of the main reasons people like open source is that the source, along with any innovations, is freely disclosed. Both areas are very similar in their purposes. Both reduce the amount of double work done in a society.

    Those who complain about software patents fall into one or more of the following categories: (1) they hate that they can’t simply implement someone else’s idea after it has been disclosed, (2) they do not want to share their innovations with others, or (3) they don’t understand the law. Which group(s) do you fall into?

    Some people complain that the don’t like software patents but all their arguments can be summed up in the phrase “claims currently being issued are too obvious.” This is the argument for which I potentially have the most sympathy. However, these people probably fall into group (3), because it is against the law that obvious claims be allowed. However, if you don’t feel like you fall into groups (1) or (2) and still feel that you are anti-patents let me explain what you should do: If there are too many “obvious” patents being granted, start sharing your knowledge!

    This is the best thing that anti-patent people can do. Share your hard work for free and this will limit other from being able to get those claims that are “obvious” to you! You will therefore be in line with the above motivation of the patent system (which can hardly be argued as being bad) and you will at the same time be undercutting the amount of patents issued. You will beat the system!!!!!

    Except, of course, you may have a hard time making a living.

  24. If you don’t like the “arms race” then I suggest that you forfeit your playing card and proceed to the nearest remote tribe, because that is the way the world works.

    Suggesting that a law ought to be changed because its effect frustrates its purpose has no place in America but would be appropriate in a remote tribe? Did I miss something here?

    It’s obvious that companies whose entire patent portfolio is defensive are suffering at the hands of the system. They are spending a lot of money solely to avoid being sued by someone else who has spent a lot of money. That’s not even a bug, it’s a feature. Patents are supposed to inconvenience potential infringers, and of course they will work within the system to protect themselves even if the system as a whole is bad for them. The real question is whether the benefit to society outweighs the cost to those companies, and in software I think it’s legitimately debatable.

  25. IANAE-

    You did miss something. First, Leif says that I provide evidence that software patents are bad because of the arms race mentality, as if that is all that I said. Second, businesses and nations engage in various kinds of arms races all the time, every day. So if someone thinks “INSERT WHATEVER” is bad because is leads to an arms race then I think the only place for that person to exist is in a remote tribe where nothing is governed by nations and there is no business reality. Of course, in said remote tribe the leaders will be the strongest and/or brightest, and there will undoubtedly be disagreements and skirmishes with other tribes, so a different kind of more low tech arms race will present.

    You say: “The real question is whether the benefit to society outweighs the cost to those companies, and in software I think it’s legitimately debatable.”

    That is a fine debate to have, but in the meantime those companies and individuals that are trying to engage in business really ought to pay attention to business reality. I have absolutely nothing against Red Hat and think they do it right. Advocate for the position and in the meantime do the business responsible thing which is to have software patents.

    -Gene

  26. So if someone thinks “INSERT WHATEVER” is bad because is leads to an arms race then I think the only place for that person to exist is in a remote tribe where nothing is governed by nations and there is no business reality.

    Arms races are inherently inefficient, because they require all parties to match each other’s spending to maintain the same status quo that could be achieved by everyone agreeing not to spend anything at all. Just because arms races exist in nature, that doesn’t mean they’re good, and it doesn’t mean we should be creating more of them by statute.

    But that’s not even the point. The point is that patents are supposed to encourage innovation and the commercialization of the resulting technology by offering an economic incentive. If it turns out that patents are stifling innovation in an industry either by diverting too much funding away from R&D or by making it too expensive for new innovators to enter the market, we should absolutely be complaining about that and trying to change the system. An economically inefficient outcome for innovators in a system based on economic re-incentivization of innovators is pretty close to being inherently bad.

    Sure, there’s a business reality, but that business reality is shaped by the statute, and there’s nothing wrong with questioning whether a statute that creates an inefficient business reality for a significant number of market players is such a good idea after all.

    I have absolutely nothing against Red Hat and think they do it right. Advocate for the position and in the meantime do the business responsible thing which is to have software patents.

    Yes, they’re doing it right. But it’s disingenuous for you to claim that “patents are good for Red Hat” or that Red Hat sees some value in them, when Red Hat itself appears to be taking the opposite position.

  27. @Imano
    the problem with obvious is that there are so many obvious things. Perhaps a more accurate description is that the changes are too incremental, especially given the pace of software development. Software development is changing more and more to a release early, release often model with smaller changes, while the nature of patents has remained largely the same. Google Chrome, for example, is already at version 6, despite being under two years old.

    Yet another problem is compatibility. Take Microsoft’s FAT patents. FAT is not the best filesystem by any means. However, Windows only supports NTFS and FAT, OS X supports HFS+, FAT, and has iffy support for NTFS, and Linux supports basically everything. If you make a hard drive, a GPS navigator, a PMP, an SD Card, or even a home theater, you are going to have to use FAT because it is the only thing supported by basically everything, and Microsoft is quite likely to seek royalties for that. ext2 would be technically suitable, as would many other filesystems with journaling turned off, but Windows doesn’t support filesystems they didn’t create without awkward workarounds and not supporting Windows generally has a negative effect on hardware intended for a mainstream audience.

  28. because it makes health care affordable”

    When the first step is so far off the path, the hope of arriving at the correct destination is nonexistent.

  29. @Gene

    “You say that patenting software is “more like buying someone’s house from under them without their knowledge.” That is 100% completely incorrect. You cannot patent something that is in the prior art, period! Perpetuating myths based on an irrational understanding of law and facts does nothing but spread fear.”

    Gene, my first statement was base upon the real estate analogy Michael used #9. Michael went on to say:

    “While it can be argued that it might be nice to live in a world that didn’t have software patents (another argument for many other interesting threads here), that’s like arguing that it might be nice to live in a world that didn’t have private ownership of real estate. As much as you might like to build a house wherever you want to, the truth is that sombody already owns that piece of property. ”

    My first statement also takes the last (above) ” As much as you might like to build a house wherever you want to, the truth is that sombody already owns that piece of property. ” — that Gene is true, but the owner doesn’t have to be a patent owner; not when we are really taking about IP and not real estate. The analogy was to patents ?

    I believe Michael is on the money, but “owner” is a serious question to answer when IP is not the birth right of the patent system making claims about what is owned at the time someone has a thought, that is IP too. Prior art does nothing for preventing the over-reach of patent claims.

    Gene you make a good point about the blame, but I find it hard to drop it. Hard when business is being jacked up over business patents, and today business patents and many other patents being used only for litigation; as the link I gave you points out that problem well.

    Thanks Gene.

  30. These are nice little intellectual exercises, but the reality of the situation (despite what the linked to article advocates) is that software patents are here to stay for all of our lifetimes.

    Bitch, moan. whine and cry all you want about software patents, they aren’t going anywhere.

    That leaves most people with a couple of choices — either get them or go without them.

    Red Hat certainly doesn’t like patents because it messes with their business model — using other people’s technology and making money off of it. However, they do recognize the inevitable — software patents are here to stay and it better to have them than not have them.

    Most entrepenuers are rarely going to be able to build their business from scratch untill a $100M-$1B revenue/year company without either selling their soul to VCs or selling their company to Google/Microsoft et al. When you’ve got a great idea/technology, but not a whole lot of implementation/preexisting customers in place, you had better have some IP. Otherwise, the likes of Google and Microsoft will use your technology without your permission — because it is NOT your technology anymore. Without filing a patent within the 1 year of first publicly disclosing your invention or offering it for sale, the law has considered that you have dedicated this technology to the public.

    Congratulations, the public (including Red Hat et al.) thanks you for spending all that time and effort producing your technology. You’ll get a nice “atta boy” during your college reunion from the guy driving a Ferrari and with a 5’10′ leggy blonde on his arm because he bit the bullet and paid for a patent application with his startup, but you’ll being going home afterward eating raman noodles.

    Again, bitch, moan, whine, cry all you want — it ain’t changing.

    You energies would be far better devoted to figuring out how to get patent protection than they are devoted to derailing the locomotive that is software patents.

  31. @Just visiting
    “Again, bitch, moan, whine, cry all you want — it ain’t changing.”
    Software patents are widely acknowledged to give large, established firms a strong competitive advantage. This means that if you aren’t one of the biggest software companies in the world and you are actually competing directly in the market (and thus exposed to the risk of patent suits), a system of software patents is not good for you. There are about 203 countries in the world depending on how you slice things, and 202 of them do not have most of the biggest software firms in the world. Software firms in these countries get a benefit from taking software patents off the table. Furthermore, FOSS is one of their best chances for building an IT industry infrastructure for themselves, and FOSS works better in a software patent free environment. The US software industry has big firms, so they would be the least disadvantaged by this, but having an added expense for doing business that others don’t isn’t good for an economy. There was a noted difference with the Droid, I believe, where it had multitouch in Europe and didn’t have multitouch in the US out of patent concerns. Plus, banks seem opposed to software patents, and it seems likely that they will have a strong influence on Congress for a long time.
    I’m not sure why you think that software patents are set in stone, but they aren’t by any means.

  32. @Just visiting

    ‘Bitch, moan. whine and cry all you want about software patents, they aren’t going anywhere.’

    That may be true, but a larger change that will limit the value of these patents is in motion.

    Have a look in just one place: http://www.linuxfoundation.org/about/members
    If you turn away from the fact that these members are there by choice. They belong to something that doesn’t support patents. Go guess ? Its called change, that is the answer.
    Have a look in just one more place: http://www.ibm.com/developerworks/opensource/

    Most if not all are patent holders, but, that are seeing the greater value today of a global community approach that they lose nothing using open source. Good luck with your patents. They seem to be seen in a different light these days by a growing number.

  33. @Just visiting

    ‘Bitch, moan. whine and cry all you want about software patents, they aren’t going anywhere.’

    That may be true, but a larger change that will limit the value of these patents is in motion.

    Have a look in just one place: http://www.linuxfoundation.org/about/members
    If you turn away from the fact that these members are there by choice. They belong to something that doesn’t support patents. Go guess ? Its called change, that is the answer.
    Have a look in just one more place: http://www.ibm.com/developerworks/opensource/

    Most if not all are patent holders, but, that are seeing the greater value today of a global community approach that they lose nothing using open source. Good luck with your patents. They seem to be seen in a different light these days by growing numbers.

  34. Given the current illogical situation with software patents, the fact that Red Hat has many patents means absolutely zero, other than they had to cope the best they could with the world… and not that software patents are good.

    If you are in a combat zone, having good weapons and body armor makes sense… but nobody would then decide that being in a combat zone is good, from the fact that soldiers there get weapons and armor!

  35. “Red Hat, Inc. [...] is named as the assignee on some 263 US patents [...] If patents are good for Red Hat [...] then why are software patents bad for you?”

    There’s a music group in Miami that has 263 guns. If it’s good for them, then why not for you?

    “The Study also revealed that the importance of patents was not limited by industry, finding that patents are an important factor with VC firms as follows: “60% for software companies, 73% for biotech, and 85% for medical devices.””

    Loan sharks consider gun ownership an important factor as follows: 85% for organised crime, 73% for bars, and 60% for rappers.

    In short, guns help rappers create innovative music.

  36. For a man who said that “Open Source Race to Zero May Destroy Software Industry”[1], patenting software may look like a responsible thing.

    [1] http://www.ipwatchdog.com/2009/04/02/open-source-race-to-zero-may-destroy-software-industry/id=2424/

  37. @Just visiting

    Good luck, things are changing, and that is a good thing.

  38. Marco-

    Your comment is not a complete thought. Please elaborate. There is no inconsistency with this article and my 100% accurate observation that open source is driving the industry to zero. Notwithstanding, I am happy to explain things to you so you can understand if you can elaborate where your lack of understanding exists.

    Sent from iphone

  39. @Benjamin
    “Red Hat, Inc. [...] is named as the assignee on some 263 US patents [...] If patents are good for Red Hat [...] then why are software patents bad for you?”

    That with the fact that, most all that patent today, have and do because of the threat of patents by others !
    Its not what you are making it out to be : http://www.zdnet.com.au/ibm-calls-for-patent-reform-139187609.htm

    By now things are changing because it just doesn’t stop …out of control !

  40. Bobby says: “Software patents are widely acknowledged to give large, established firms a strong competitive advantage.”

    He says this as if it were factually true and well accepted, when to the contrary it is false and not accepted. Most of the large companies want software patents to be abolished because they are most valuable to small businesses and funded start-ups. These large companies came into prominence as a result of innovating and patenting their innovations. Now that they have market dominance as a result of things other than innovation and technology they want to make it harder, impossible even, for the next tier of small companies to grow to supplant them. THIS is widely accepted and true.

    You also make the singularly irrefutable case for strong IP protection. He says: “There are about 203 countries in the world depending on how you slice things, and 202 of them do not have most of the biggest software firms in the world.” So what is the country that has the biggest software companies and practically the entirety of the industry? The United States. It is well known that industry seeks out countries with friendly regulatory climates. That is why Europe and specifically the UK used to dominate biotechnology, but then they lost their way and now the US dominates. It is because of the regulatory climate and patent protection is probably the single most important aspect of that regulatory climate for innovators.

    You really should do your homework and expand your horizons.

  41. @Gene Quinn
    “Most of the large companies want software patents to be abolished because they are most valuable to small businesses and funded start-ups”
    Microsoft and most of the big companies in the BSA want to reform patents, mostly to handle NPEs, which are parties they can’t use their patent portfolios against. However, they are not opposed to software patents, and the BSA and Microsoft itself both filed an amicus brief in support of software patents, although the Microsoft brief was against Bilski but wanted a narrow ruling.

    “These large companies came into prominence as a result of innovating and patenting their innovations”
    It depends on how you define ‘coming into prominence,’ but according to the freepatentsonline.com, Microsoft’s patent portfolio was very small in the 80s (and not even all of their patents were software-related), and Oracle only filed a single patent in the 80s.

    “It is well known that industry seeks out countries with friendly regulatory climates. ”
    I don’t disagree with that, but the US developed a powerful software industry while patents were not widely used, and many great innovators such as Donald Knuth, whose contributions to software were enormous, has been highly critical of software patents, saying “If present trends continue, the only recourse available to the majority of America’s brilliant software developers will be to give up software or to emigrate. The U.S.A. will soon lose its dominant position” in a letter to the USPTO.

  42. … the majority of America’s brilliant software developers will be to give up software or emigrate [out of the USA]. The U.S.A. will soon lose its dominant position …

    @Bobby,

    Thank you.

    We now have a much clearer picture of who you are.

    We can see you standing in front of your talking friend and asking:
    “Mirror, mirror on the wall, who is the most brilliant software developer of them all?”

    And of course your faithful friend replies:
    “In this land of those barely awake and savvy,
    why you are it my dear Master Bobby.
    However beware of a Sleeping Patent Beauty in the forest yonder.
    She may awake and tear your smug superiority asunder.”

    No wonder you hate patents.

    But guess what? I work with many a more humble “innovators” in the software space and they are very pro-patent because they are betting their houses, their marriages, and their lives almost, to fund prosecution of their patent applications in hopes that their revolutionary ideas will be the next big thing. Some come from overseas to America. They come or one and main reason: Because this is where the patents are (for software and business-related innovations).

    I doubt that America will lose much if the likes of you decide to huff and puff and run away under the false belief that the software patent sky is falling down on your heads. With that said, I don’t wish for your ill-advised and hasty departure. It would be sad to see someone go based on a momentary and correctable misunderstanding of how the patent system works in America.

  43. @step back
    I did not say that. Donald Knuth said that in a letter to the USPTO. He knows quite a bit about software, as he has written seminal works on it and and has been awarded many of the highest awards available in his field. He also had some hardware patents, so he probably has some understanding of how the patent system works.

  44. step back,

    Do not be overly worried – for every Bobby that would leave, I have another customer wanting the delicious Kool-Aid that powers this keen intellectalec.

  45. New Here — I had to laugh when you I checked that link for the members of the linux foundation.

    The platinum and gold members are chock full of the largest patent obtainers in the world — including the #1 patent holder, IBM, who is showing no signs of reducing the numbers of software patents they obtain. If you think that they are advocating the removal of software patents, you are sorely mistaken.

    Bobby — software patents are known to give most of the value to many companies being purchased. Without a patent portfolio, why should I buy your company for $100M when I could easily reverse engineer everything using low-cost programmers out of India for pennies on the dollar?

    The one thing I’ve learned about the anti-software paten crowd is that they are not too adept at business.

    FYI — people looking to make money in this world do best when they create a product that nobody else has — rather than recycling old technology.

    If you think things are changing, you are sorely mistaken. The only way you are going to get things to change is not through the courts … but through Congress — and let me tell you, your side has very poor arguments to work with. You’ve got a bunch of losers for arguments, and there isn’t much you can do about it.

    Your side has so many insurmountable obstacles to overcome that I can say with almost absolute certainty that software patents are here to stay.

    For example, you first have to define a software patent — nobody claims software, per se (despite what the USPTO thinks). Claims are towards machines (i.e., computers) with particular configurations or towards computer-implemented methods. It is going to be extremely difficult to excise those patents without just making the decision to get rid of patents altogether. Do that — and you’ll see the biggest stock market crash in the history of the US. As I’ve said before, and I’ll keep repeating it …. software patents are here to stay, so you better learn to live with them.

    BTW — as I’m sure you know, even your vaunted open source code won’t protect you from a patent suit. There is nothing that says open source cannot infringe somebody’s patents.

  46. @step back
    sorry, my old comment hasn’t been approved yet (it has a link), but I didn’t say that, Donald Knuth did, and Donald Knuth has had incredible influence on software and has some nice, shiny awards that suggest he knows what he’s talking about.

    @JV
    “software patents are known to give most of the value to many companies being purchased. Without a patent portfolio, why should I buy your company for $100M when I could easily reverse engineer everything using low-cost programmers out of India for pennies on the dollar?”
    Some companies do have valuable patent portfolios. Some do not. The fact that some businesses have value mostly based on patents doesn’t really a say anything about the productivity of the patent system by itself. As for reverse engineering, that generally takes a lot of manhours, and reverse engineered software may still be protected by copyright, which is why reverse engineering is generally done in a clean-room manner, which takes even longer. It’s also worth noting that clean room reverse engineering of the BIOS of the IBM PC was responsible for the takeoff of the IBM compatible clones that were largely responsible for the boom and progress of computers in the 80s.

    “If you think things are changing, you are sorely mistaken. The only way you are going to get things to change is not through the courts … but through Congress — and let me tell you, your side has very poor arguments to work with. You’ve got a bunch of losers for arguments, and there isn’t much you can do about it.”
    No, the courts could change things. We don’t know precisely what SCOTUS thinks an abstract idea is, and courts might consider most or all software patents to be abstract ideas. As for arguments, I’m not sure if you are saying that the arguments are bad or that the people making them are bad, but I think that among Google, Tim Berners-Lee, Donald Knuth, Linus Torvalds, a lot of the banking industry, and many others, there is quite a bit of knowledge and quite a bit of influence.

    “Claims are towards machines (i.e., computers) with particular configurations or towards computer-implemented methods.”
    The software makes a computer a new machine argument always seemed odd to me, since installing ANOTHER piece of software would make it ANOTHER different new machine. Also, if it’s the machine that’s covered, than distributing software without a machine would be harmless and it’s end users that are the infringers in most cases, and bringing that kind of case would be pointless. OEMs would have some concerns, but even they could exercise trivial workarounds to exploit this hole. I’m sure there’s a patch to this problem, but it does interest me on how you’d get around this, especially if the patch is something weak.

    “It is going to be extremely difficult to excise those patents without just making the decision to get rid of patents altogether.”
    Not really. The patent on a special hardware device that uses software can be hard to untie as in Diamond v. Diehr, but software that isn’t tied to specific hardware could be fairly easy to untangle. Congress may be the better route to take, though.

    “Do that — and you’ll see the biggest stock market crash in the history of the US.”
    Drama, drama, drama. I thought the opponents of software were supposed to be the ones claiming that the sky is falling.

    “BTW — as I’m sure you know, even your vaunted open source code won’t protect you from a patent suit. There is nothing that says open source cannot infringe somebody’s patents.”
    Nobody here has claimed that it couldn’t. If it could, the FOSS crowd wouldn’t be that concerned.

  47. @Bobby,

    I know who Knuth is and I know about his books.

    I also know about the rhetorical (and illogical) technique known as “appeal to authority”.
    Don’t pass the buck off to Knuth. Either you personally, and based on your own brilliant software developing mind, believe it or you don’t.

    And if you do, you need to support with facts and logic rather than with rhetoric your assertion that:

    … the majority of America’s brilliant software developers will give up [on developing] software or [they will] emigrate [out of the USA]. The U.S.A. will soon lose its dominant position …

    ____________________________
    You probably have heard at least once the crude response to the “appeal to authority” rhetoric. It goes kind of like this: Oh yeah? Then in that case you should eat sh*t because 100 Trillion flies can’t be wrong. Sorry for the crudeness, but it demonstrates the basic illogic of the rhetorical tool. Just because many believe it or do it, that doesn’t make the “it” right.

  48. @step back
    One doesn’t have to be a software developer to argue about an effect on software developers. One doesn’t have to be a brilliant software developer to argue about the effect on brilliant software developers. Knuth explains the problems well in his letter as have many others, and I believe that good arguments should be reused. It’s not hard to see the disadvantage that US would have with being the only one to have software patents. A big part of the reason the Uruguay Round Agreement Act was enacted was because other countries were upset that we didn’t protect some foreign works because they were previously in the public domain for the US while they protected US works. We do this to others with the USTR’s Special 301 report, effectively punishing countries that don’t protect our IP. IP requires restrictive rules, and following these rules puts you at a competitive disadvantage to someone who is not following them (this is true for many laws and regulations. Think about what an advantage UPS could have over FedEx if they didn’t have to obey traffic laws, or Pfizer over Glaxo-Smiih Kline if they didn’t have to go through FDA approval to sell drugs) . If the US has software patent and Europe doesn’t, then European software firms get a free ride off of the US but can still file software patents that benefit them and limit American firms. It’s somewhat more complicated with companies that do things internationally, but that just results in a difference for consumers. For example, fearing Apple’s patents, the American Droid didn’t feature multitouch, while the European version did. I’m pretty sure they eventually got a bit braver, but this is the kind of problem that materializes with differing rules.

  49. @JV
    “New Here — I had to laugh when you I checked that link for the members of the linux foundation.”

    Me too, you don’t get it ?

    “Have a look in just one place: http://www.linuxfoundation.org/about/members
    If you turn away from the fact that these members are there by choice. They belong to something that doesn’t support patents. Go guess ? Its called change, that is the answer.”

    About 71 of them, as I believe you didn’t count.
    Patent owners ?, having anything to do with something that doesn’t support patents ? ROFLMAO !!!.
    Sorry JV the joke you’re laugh is about is egg on your face …with all the talk about patents, and here some of the big players are working with the no-patent monkeys… I hear them now — oh mama ! huba-huba.

    Facts are JV that things are changing, these “members” and more of them as non-members are turning their patents into shields so THEY can do business. Business using open source that has no patent tax on it, patent tax that keeps small business locked-up unable to move because patent litigation waits outside the front door on every wrong move. So many of these just lay-off people or even go out of business, because they cannot make any moves to change things for their business to remain in the black ink without risk from patents.

  50. @Bobby,

    Picture this:

    Two apes meet in the middle of the jungle.

    First Ape: “Grunt Grunt”
    Second Ape: “Grunt Grunt”

    Bobby’s apparent understanding of what is happening here:
    1. The apes are talking to each other.
    2. The apes clearly are thinking and talking about the same thing because they make identical grunts to each other.
    3. Sound logic is as sound logic sounds (or was it Forest Gump’s momma who always used to say that?)

    Step Back’s understanding of what is happening here:
    1. The apes might or might not be talking to each other.
    2. It is not at all clear that the apes are thinking and/or talking about a same thing simply because they make identical grunts to each other.
    3. Logic based on sameness of sounds is not always logical.

    Bobby, you repeatedly make the same grunting noises on this forum: “software patents”, “software patents”, “software patents”, …

    From my perspective:
    1. I don’t know if you intend to actually communicate something useful or you are merely a troll who has found a noise by which to tease the toads and you get gratification from the toads croaking back at you.
    2. It is not at all clear that you are thinking and/or talking about a same thing as other people who mouth the noise string: “software patents”, “software patents”, … Just because you all make identical grunting noises to one another does not lead me to conclude anything about how you each decode those noises in your heads (or if you do decode them at all and think about them in the first place).
    3. Until you make it clear to the rest of the world what your definitions are of the noises, “software”, “patents” and “software patents”, it is a waste of time exchanging grunts with you.

    respectfully yours,
    –Mr. Toad.

  51. Thanks Gene. Your article’s complete lack of a slant and prentention really woke me up. I’m no longer “anti-software”.

  52. @step back
    Software is data that can be executed by a computer.
    Patents are government grants that allow one party (the patent holder) to exclude all other parties from creating or doing what the patent covers without permission for a limited time.
    Software patents are patents that could be used to restrict the operation of software without the use of something else, typically a machine, that is patentable by itself. While business method patents have some concerns of their own and sometimes have a degree of ambiguity when they can be implemented in software but wouldn’t have to be, for those concerned about the software industry, the matter of concern is whether or not software vendors (or hardware vendors that distribute hardware with software included such as Dell) can be subject to patent lawsuits regarding software itself.

  53. In this neighborhood, the mafia rules, so investors only invest in businesses that pay the protection money. Which means investors value protection money, and only idiots argues that it should not exist.
    If it works for them whey wouldn’t it work for me and my company? All of these companies started off small and grew, and they did it by paying protection money. So don’t model yourself after companies that fail, and don’t pretend that investors don’t care about protection money.
    This anti-protection money ideology merely gets in the way of doing the business responsible thing. Letting ideology get in the way of doing what is right and responsible is nothing short of breathtakingly stupid!

  54. Out of curiousity, I was wondering if either side in this debate has made any effort to delineate between different types of software. While I completely understand the concerns of “anti-software” advocates in some instances, I also have to recognize that there are software implemented inventions that I firmly believe deserve the protections proffered by a beauregard claim.

    For instance, let’s look at advancements in programmable implantable electrical devices. In many instances of patents to programmable pacemakers, the improvements in their underlying control algorhythms have resulted in improvements (not dissimilar to the improvements Arrhythmia Research Technology) in the abilities of the device to distinguish between different types of arrhythmias and thereby to improve the treatment provided by these devices. Furthermore, in many of these cases, these improvements can be implemented substantially without any changes to the underlying hardware (except for the changes to the device programming.) In some cases, these software changes can enable completely new functionalities in these devices. Given the often times drastic improvements in functionality provided through the software and given the necessity of research and quality control going into these programming changes, patents that protect the software for implementing new implantable device functionalities are totally justified, IMO. This is especially true because the programmability of the pre-existing device would enables a free rider company to simply sell software to an end user or physician who can tehn program the entire improvement into the device, meaning the free riding company can completely avoid direct infringement by selling the software disembodied from it’s intended device. If it’s true that contributory infringement by the software provider in this instance is too difficult to prove, then the Beauregard claims are the only means by which to protect the invention from the free riding software company.

    Anyway, getting back to the original question, what (if any) delineation is there between the patents that the “anti-software” crowd despises and cases where the software patents seems justified?

  55. New Here:

    You really are naive. Being part of Linux foundation is all about good marketing. Also, it doesn’t hurt to be a high-ranking member in the enemy camp.

    Also, where it is useful to use free software, anybody will — and that includes companies with hundreds if not thousands or tens of thousands of software patents. However, don’t mistake someone’s support of free software as them signaling that they, themselves, will give up their family jewels on the alter of free software to everyone.

  56. Bobby:

    Just another one of those dreamers — thinking that you and your ilk are going to change the world of patent law. Sorry — not happening.

    Also, you don’t seem to have been reading what I’ve been writing. How is a a processor configured to perform A, B, and C an abstract idea? Again, your (and your ilk’s) first hurdle is to define a software patent. Good luck with that. Your first attempt (post 51) was miserable.

    Restrict the operation of software? Software, per se, is an abstract idea. How can anything restrict the operation of an abstract idea? Moreover, how can an abstract idea operate?

    Your logic is indicative of most in the world — you’ve got a notion of what you want to argue, but you have no idea how to do it so you slap something together. However, when your concepts are examined in detail, they are like a sand castle trying to fight against the rising tide.

    To ban software patents, you have to (i) define software patents; (ii) explain why software is special; (iii) explain why banning patents will be a positive in the software industry (while at the same time explaining why such an argument does not apply to other technologies); and (iv) quantify the benefits that will outweigh the negatives of invalidating patents. I can go on,but you aren’t going to get past the first few steps, so why bother?

  57. @JV
    “Also, you don’t seem to have been reading what I’ve been writing. How is a a processor configured to perform A, B, and C an abstract idea?”
    The processor is configured to perform just what is covered by it’s instruction set. If it’s the processor that’s covered, all or none of a line of processors would infringe a patent, as it would either be all patents a processor inherently does infringe (a very limited set) or that it can do (an enormous set). Also, if it’s the processor or even the computer that is covered by the patent, than how can a suit be brought against Red Hat, which has recently happened? The don’t make processors, they don’t make computers, and it’s the end users that are doing the process.

    “Restrict the operation of software? Software, per se, is an abstract idea. How can anything restrict the operation of an abstract idea? Moreover, how can an abstract idea operate?”
    When I said software, I meant the development and distribution of software. You were most likely aware of this, but wanted to play word games instead. Distribution and production of x264, Microsoft Word, Firefox, Quickbooks 2010, etc should not be subject to patent lawsuits.

    To ban software patents, we have to have a court push a test or Congress push a law that would stop the aforementioned lawsuits from happening. Said test or law might involve something other than software, or it might defined in a narrow way. As far as justification goes, there isn’t a particularly big need for justification when ending patents, and they can always say it’s for the sake of freedom, which is a word Americans love. Getting this accomplished is easier said than done, but it’s basically (i) exert enough economic or political influence to persuade Congress or a high court. Not particularly easy, but not anywhere as tough as you are making it. Congress could simply pass a law that says no more patents or just no more patents on processes and there’d be zero chance of having software patents. Congress is allowed but not obliged to pass patents, and generally speaking, judges can only take away from what it is patentable compared to what Congress passes (the only way they can add is by re-interpreting existing laws).

  58. Gene:
    Your opinion that patents exist for the sole reason of making money is interesting. Forget for a second that the Constitution explicitly states otherwise. Forget for a second that software is written and that makes it copyrighted. Forget that software is really math, which is explicitly denied patent-ability. Do you have any proof that companies in fact make money from licensing patents? Most large companies do cross licensing deals when they need someone elses IP. That is usually a straight trade, with little or no money involved. Only little companies don’t have anything to trade. So they are at the mercy of the system.

    I ask again: Where is the proof that software patents make more money than they cost?

  59. @Just visiting August 12th, 2010 5:59 pm

    “New Here:

    You really are naive. Being part of Linux foundation is all about good marketing. Also, it doesn’t hurt to be a high-ranking member in the enemy camp.”–:)

    Enemy camp ? What ? Is that what you really think ?
    Oh sure it is, and those many others that do not belong, going with your “thinking” that is, they should all want a membership too without fail …right ? Fact is, NO enemy camp to them; and no one ever said anything about handing over anything …where did you come up with that ? You seem not to have a clue about what is really going on. Your throws of hammers axes and rocks makes me think maybe you do.

    JV, I couldn’t care less about what you believe, if change is happing or not. I have no dependence upon you for sure. But believe this, the change that is happing, that I’m not losing sleep over it !

  60. Open-

    Why must you mischaracterize what I have written? I must conclude you are either intellectually dishonest, simply incapable of understanding or extremely unknowledgeable. The later seems more plausible give that you seem unfamiliar with licensing practices and rather than do a simple Google search you ask a naive question. Given that you think software is “really math” I must conclude you don’t know much about math or much about software. I have gone to extremes to explain how and why software is not math. You should read these articles because it is really irrefutable. You see, math can be solved and software cannot be solved. If you disagree then please submit your solution for the IPWatchdog.com homepage, which should be easy enough if you are right and I am wrong. Software is also just a set of instructions that direct action, which is not what math does. Math is descriptive and does not direct action.

    I anxiously await the numerical solution for IPWatchdog.com, or at the very least for you to simplify the equation that summarizes the HTML and php.

    -Gene

    sent from iPhone

  61. @Bobby,

    Sorry, I was tied up on an all-consuming project today.

    I have to admit that you appear to be making an honest effort to address my points. Let’s try to examine them more closely though:

    Bobby Definition #1:
    Software is data that can be executed by a computer.

    SB Response 1): Only partially agree. “Software” is not limited to “digital” stuff or to that which you might call a “computer”. “Analog” computers exist and even the US Supreme Court (in Benson) recognized that computers can be analog or digital. FPGAs are not necessarily “computers” and yet they can be programmed. I will accept your incomplete definition only if by the word “computer”, you mean a real world physical machine whose state is transformed from one state to the next by application and use of real physical energy and thus the so-called “data”is limited only to real physical stuff that during execution thereof, causes real physical energy signals to be applied to the computer “machine” so as to induce such transformation.

    That said, I would define “software” as any stuff that guides or controls sequential machine actions where the “software” stuff can be more easily changed (you might call that action re-programming) than what changes would be needed for causing hard-hardware to differently dictate the course of sequential machine actions. (The term hard-hardware as used here excludes firmware.)

    Bobby Definition #2:
    Patents are government grants that allow one party (the patent holder) to exclude all other parties from creating or doing what the patent covers without permission for a limited time.

    SB Response 2): Not true on many counts. Parties outside the reach of USA patent law are not at all restricted by US patents. At present, government agencies including Federal and State are immune as sovereigns. Under current law for injunctions, exclusion is no longer guaranteed. I don’t know what you intend by the language “what the patent covers”, but the exclusive rights are limited to that which falls inside the metes and bounds of the patent claims and no one can claim “creativity”. It is often the case that one person patents a broad technology, a second person later patents a narrower technology inside the scope of the first patent and the 1st inventor has to beg the 2nd for a license. Consider invention of transistor and then that of the microprocessor. A microprocessor is built out of transistors and thus (theoretically) a uP infringes patent for “the transistor” (although there is no such thing as ‘the transistor’ –instead there were bipolar, FET, MOSFET, etc.). Generally patents encourage the next Sir Isaac Newton to stand on the shoulders of the previous one and provide a shoulder platform for the third Sir Isaac Newton and so on.

    Bobby Definition #3:
    Software patents are patents that could be used to restrict the operation of software without the use of something else, typically a machine, that is patentable by itself.

    SB Response 3): I’m still burnt out from today’s project and will try to respond later to #3

    Bobby Observation #4:
    … the matter of concern [to the "deserving" people in our society] is whether or not software vendors (or hardware vendors that distribute hardware with software included [in it] such as Dell [Computer Corp.]) can be subject to patent lawsuits regarding software “itself”. [which by Bobby Definition #1: ... is data that can be executed by a computer [which is something Dell "Computer" Corp. offers for sale]

    SB Response 4): I’m still burnt out from today’s project and will try to respond later to #4

  62. I anxiously await the numerical solution for IPWatchdog.com

    As any hitchhiker that has traveled through the galaxy knows, the answer Gene is 42.

    Of course, the trick is to appropriately fold the simple question herein to the larger question. Those of us that have done so, know that true appreciation is only capable by the doing and not the hearing, so I leave the doing to those who have not done so.

  63. Well, first off, here is a link you should take a look at: http://opensource.com/law/10/8/weak-case-software-patents

    It is a response to this article.

    Secondly, let’s talk about this statement: “First things first, a reality check. Software patents are not going to be abolished. The Supreme Court had a chance to do just that in Bilski v. Kappos, and 8 out of the 9 justices clearly felt that software should be considered patent eligible. ”

    Actually, no, they did not “clearly” feel that software should be considered patent eligible. If you actually read the case with an open mind (not one just looking for ways to further your point) or read articles by people who actually know what they are talking about (I did both) you will see that the Supreme Court actually decided not to decide on the issue of software patent eligibility. They decided to decide NARROWLY on this particular issue, then told the lower courts what kind of reasoning to use in future cases. They very purposely stuck to “business methods” not software patents, because they do not wish to make a decision on that issue unless a case comes up in which software patents are actually the issue involved.

    Thirdly, “Those who dominate most of the so-called debate, which is really little more than unenlightened vitriolic criticism, simply do not want patents period. ”

    Unfortunately, some people are like this. I, personally, don’t like software patents. However, I have no problem with the patent system in general. I just don’t think it applies well to the software industry. I won’t go into my reasoning here, as that would make for a very long comment, so we can just keep my statement at that for now.

    Finally, of the general issue of whether you should have patents or not. Like I said, I don’t like software patents. However, If I owned a software business I would get every single patent that I could, and then issue a promise similar to Red Hat’s Patent Promise, that I won’t go after open source. Quite simply, you are right in one point: patents are valuable. Should they be? No, they shouldn’t. But they are. We have to work in the framework that the world has provided, we can’t just ignore it. So yes, I would need to make sure my products were not patent infringing. I would also need my own patents, in order to deter patent aggression from other parties. I wouldn’t like it, but it would be neccessary.

  64. Chris-

    I appreciate your comment. That article clearly misrepresents what I wrote and says I acknowledge that software patents harm innovation. Anyone who can read knows I didn’t say that. I assumed arguendo and then wrote about why from a business perspective that should not matter.

    So why must those who disagree so mischaracterize? Can’t they debate fairly? These misrepresentation tactics admit defeat and demonstrate a dubious agenda.

    Sent from iPhone

  65. I ask again: Where is the proof that software patents make more money than they cost?

    Quite simply – this is likely not the question that that the (assumed anti-software patent) writer wanted to ask, because the answer is really quite simple: Look at Acacia Research – clearly, the proof that software patents make more money than they cost is evident.

    Pray tell, try again to formulate the question that you intended to ask.

  66. Gene:

    “Do you as a business owner care whether software patents stand in the way of innovation? Of course not. What you care about is making enough money to keep the lights on, employees working and a profit going into your pocket or the pocket of your investors. ”

    How am I mischaracterizing what you have said? Your quote boils down to businesses need software patents to make money. I would posit that software patents in the end cost the industry much more than they generate. Further, there is no need to heap attacks on your response. It doesn’t help your argument. Further, while not a EE, I do have a fairly good idea of how computers work. All software is reduced to a series of binary numbers. If you really want to see the solution for your web page, its easy enough for you to cut and paste the html into an editor and convert it to binary. How these numbers are acted upon is the logic built in the circuits.

    Blind Dogma:

    Just because one company which happens to produce nothing makes money on software patents does not mean it is good for society as a whole. The software industry as a whole spends a lot of money on patents. I just ask if they make more than they cost.

  67. Gene,

    I’m surprised no one has yet mentioned Oracle v. Google.
    Two industry giants going at each other over Java patents.
    All I know so far is what little I’ve seen in the MSM news stream.

    See for example:
    http://www.zdnet.com/blog/burnette/oracle-uses-james-gosling-patent-to-attack-google-and-android-developers/2035

  68. Belated response to @Bobby

    Bobby Definition #3:
    Software patents are patents that could be used to restrict the operation of software without the use of something else, typically a machine, that is patentable by itself.

    A patent infringement suit is brought against a person (real or corporate, see for example Oracle v. Google) based on an allegation that the Defendant did something physical: i.e. used, sold, offered for sale that which is claimed without authorization from the patent owner.

    As a software developer you are free to think all you want about software and to share your “ideas” about software as long as you don’t go the extra mile and induce others to infringe a patent. So no one is inhibiting your ability to be “creative” and develop innovative new things involving software.

    However, all this is a subterfuge because what you really want is to freely take the work product of others and “use” use it without paying for it. That’s the real bottom line.

    Hey I don’t blame you. I would like to have stuff given to me for “free” or the ability to take as I please without paying for it. But then where will the world be when everyone takes stuff without paying? How will you survive? How will anyone survive in a civil and nonviolent manner?

  69. Just because one company which happens to produce nothing makes money on software patents does not mean it is good for society as a whole. The software industry as a whole spends a lot of money on patents. I just ask if they make more than they cost.

    open mind,

    No – that is specifically not what you asked. That’s why I pointed it out to you. You asked for proof of a general condition – one not bound to the industry as a whole (in fact, the anti-software argumnets do become general anti-patent arguments if you extend the generality that you want to infer).

    Now even besides the question you meant to ask – the answer of which is not material to patent law. So you have now succeeded in clarifying the question you wanted to ask, but the appropriate answer is that it doesn’t matter.

    And I am not even getting to the point that a patent is a negative right – not a right for the patent holder to “do anything” (which includes equally both do make a product and make a license for someone else to make a product)

  70. …and open mind, just how much did Aciaca Research make? And how much has been spent on “software” patents?

  71. @Step Back
    “However, all this is a subterfuge because what you really want is to freely take the work product of others and “use” use it without paying for it. That’s the real bottom line.”
    To turn this around, patent seekers think they have done something that contributes enough to justify the government taking freedoms from others for their sake. Even the patent system has freely copying others as its ultimate goal, and copying others is one of the most important elements of human progress throughout the ages. Without this ability, humanity would not be where it was today. Patents are just to provide enough motivation for these ideas to be publicly documented and provide an atmosphere where an innovator can afford to innovate something we’ll eventually copy freely, at least in the US system.

    The question is whether or not said motivations are needed to drive innovation in software, and what kind of motivation it has on competitors and their ability to innovate. Industries with high overhead where getting a product to market and making a replacement is a slow process are going to be where patents are the best fit, and industries with low overhead and quick turnaround are where patents are going to be least useful, especially if both are covered by the same patent system. I think this is pretty much self-evident. Software generally fits into the latter category, and has largely been moving more and more towards quick, incremental changes instead of slow, groundbreaking revolutions.

    @Blind Dogma
    He wasn’t being specific, but the appropriate response would have been to ask for clarification instead of interpreting the question how you wanted to read it. While patents are not about economics, economics is a concern, and lost money would be a motivation for changing practices. Congress is only constitutionally limited in what protections they can give, not what they can take.

    Also, you seem to quite often say that since other patents have similar behavior, it makes this behavior okay for software patents. However, the assumptions that patents are inherently good does not hold true, and perhaps a wider analysis actually would determine that patents as a whole just gum up the works. Opponents of software patents may not see a problem if all patents come crumbling down with software patents, but taking down all patents isn’t where their focus is. That fight would be harder to win, would probably annoy WIPO (although it’s not as if the US doesn’t have trouble acting unilaterally), and the benefits they’d see would be less direct, but claiming that all patents do this is not a valid defense of software patents.

  72. copying others is one of the most important elements of human progress throughout the ages.

    Funny thing – Bobby is serious.

    Congress is only constitutionally limited in what protections they can give, not what they can take.

    Bobby – please clarify.

    perhaps a wider analysis actually would determine that patents as a whole just gum up the works.

    Gene, do you want to answer this one (yet again)?

  73. “copying others is …”

    Close but not a Havana Cigar.

    The more correct statement would be:

    Learning from others and then advancing yet further based on that learning, is one of the most important elements of human progress throughout the ages.”

    As the humble Sir Isaac Newton is famed to have said: I have seen farther it is because I stood on the shoulders of giants …

    This is precisely what the patent system is set up to do; to get inventors to document AND PUBLISH their know-how so the next generation can step up on their shoulders and reach even higher. This would not be possible in a world of trade secrets and hiding the ball.

    The open source world that new age software developers see today grew to where it is BECAUSE patents promoted open disclosure, not despite of it. If there had been no patents, would Richard Stallman have even bothered to start the GNU movement? No. What for?

  74. @Blind Dogma
    “Funny thing – Bobby is serious.”
    Yes, copying others is very important. It’s essential to language, has been important to survival in many cases, and allows us to mass produce a helpful product or service.

    “Bobby – please clarify.”
    Congress can only pass patent laws that promote progress. However, they have no obligation to be inclusive in what can receive a patent, and they have no obligation to have patents at all. Congress can allow the USPTO to protect anywhere from nothing to the maximum of what SCOTUS finds to promote progress.

    @SB
    Improvement gained from learning is important, but learning itself is important. Most people who learn something don’t make significant improvements, but having lots of mechanics, doctors, lawyers, judges, farmers, etc. is very important. Your physician is probably not doing any advancement of the medical field, but the various procedures and facts that he has learned are important to your well being and the well being of others he treats.

    “The open source world that new age software developers see today grew to where it is BECAUSE patents promoted open disclosure, not despite of it. If there had been no patents, would Richard Stallman have even bothered to start the GNU movement? No. What for?”
    The number of software patents in 1984 was fairly limited in applications, quite limited in enforcement, and very little if anything covered by software patents would have been legal to use. You can possibly attribute patents on hardware to making hardware to run software on more widely available, but that’s about it.

  75. Step-

    I have been in business meetings all day, and then taking a few days of R&R with the family. I hope to get something up about it later tonight or tomorrow. Of course the biggest names involved in a lawsuit happens on a business/vacation trip!

    -Gene

  76. open mind-

    Do you really not know how what I am saying is being mischaracterized? Come on. One requirement here is the debate remains intellectually honest, and you are not being intellectually honest.

    What I said is that a business is concerned with making money and they should do business responsible things to make sure they are not the target of lawsuits and if they are they have an option to respond appropriately. I also suggested that those businesses that need to raise funds ACTUALLY make themselves more appealing to investors.

    You can posit whatever you want, but you will only have yourself to blame if/when you need a patent because it will be too late. It is just like insurance in that regard. Cry and moan about the cost but be thankful you have it when you need it.

    Thanks for bringing up binary. Binary is not a solution, and binary code is not math. A computer operates by translating instructions from human readable form to a code that can be convereted in a machine readable form. That doesn’t change the reality that what is passed to the computer is a series of instructions. So please don’t be so intellectually dishonest and intentionally dense to believe that a string of 1s and 0s means that software is math. If that is all you have then you are even more of an amateur and less of a thinker than I suspected.

    -Gene

  77. open mind-

    One more thing…

    And if I translate the code to binary and add up all the 1s and 0s and then press enter, the page will display as intended, right? After all, that would be the case if software were math? All I need is the numerical solution and it would display all the text as I desire.

    What a joke!

    -Gene

  78. I have read this article and a lot of the comments.

    As a practicing Registered Professional Engineer, and one who has written software in several programming languages, as well as designing digital systems and control systems, and as one who has been involved in contractual issues and disputes on the order of 10′s to 100′s of millions of dollars, I have a few observations.

    First, you should read a book called “Wealth of Nations” by a man named Adam Smith. In this book, frequently cited by almost all economists, he makes the argument that all monopolies cause more harm than good to the societies they are in.

    Second, as you have yourself admitted, All patents are monopolies.

    Third, a look at history. The first really prominent inventor in US history was Eli Whitney. He went bankrupt several times and died broke because he relied on the US patent system.

    The Wright Brothers, famous for the first working aircraft,relied on the patent system, and went bankrupt.

    Thomas Edison, the most famous inventor in US history, only made money because he had the backing of one of the largest bankers at the time. Also a very large law firm. But, he didn’t make much money from patent royalty. He (or rather his backers) tried to shut off the recording industry, the movie industry and the new electrical industry. Fortunatly, all of these attempts were failures.

    Your claim that the patent system protects inventors is on the face of it false. The cost of patenting is greater than most indivuals can afford. Most (much over 90%) of patent rights are held by corporations.

    Reality is that patents are a tool of established business to prevent new businesses from arising to challenge them.

    Another problem with patents is that the actual design to be patented is NOT the actual basis of the patent claims. Claims are often exaggerated to meaninglessness by one or more of the stages in the examination process (Perhaps lawyers like yourself?). This is the reason why patents on the wheel get issued by the patent office at least once per decade.

    In Software and business methods, this problem is even more pronounced than in other areas. These are areas that were added by judges, not authorized by any act of Congress. The Patent Office has no real usable source for current or past practice in these areas.

    I have seen Business Method patents issued for business methods that were practiced by the aincent Romans, and regulated by the Code of Hammurabi. I have seen patents issued for “Innovations” that have been in use for over 100 years. One, was for a command that was used by Ada Lovelace in the 1850′s. Another was for a command that was used by Laplace in the 1750′s.

    The system is broken.

    As I read your arguments in the blog, they all seemed to boil down to two things

    1. This is the only system we have, and I won’t let you change it!.

    This argument is specious, because software and business patents have existed for only 20 years in the US, and are still not legal in most of the world. If the system could not be change, there would be NO software patents. In short, you are wrong.

    2. There is too much risk of losing money to not encourage software patents.

    This argument is by a lawyer arguing for more lawsuits. It sounds like it too.

    As an Engineer, I found that whenever one party brought the lawyers into a disagreement, no one but the lawyers won. That was the reason that the City of New York had a policy of refusing to deal with Contractors through their lawyers, except in court. Most Contractors agreed. The ones who didn’t were frequently left in Chapter 7. None of the lawyers went Chapter 7 though, in my experience.

    Bill Gates of Microsoft is quoted as saying that if there were Software Patents in 1980, then Microsoft would not exist. He was right.

    On the subject of the protection of Software Patents, and Microsoft, for the last year I have reliable information, Microsoft made about 200 Million off of software royalties, and payed out a little under 2 Billion.

    Most of the patent related lawsuits and even threats of lawsuits i see happening are by what are called “Patent Trolls”. These are usually law firms that buy patents, and then wait for someone to make something, then sue for all they can get. These parasites are even advertising for patents to use for more lawsuits.

    The software industries have definitely slowed the introduction of new software solutions since software patents were introduced. We have also seen the software industries steadily move to countries which do not recognize software patents.

    If the goal is the introduction of the US to third world status, and the massive transfer of wealth from Citizens to lawyers, then you are right. If that is not the goal, then current policies and procedures must change.

    ————

    In conclusion, you seem to be a lawyer trying to drum up business, and not to care how much harm you do. I would like to be shown wrong. But…

    I am reminded of a time I asked a City Attorney if the root of the word “Lawyer” was “Law” or “Lie”. His answer was “Sometimes you can’t tell.”

  79. Bobby,

    Your statement does not clarify “ not what they can take.

  80. @Blind Dogma
    Congress can change 101 to something like

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, other than a stringed musical instrument, may obtain a patent therefor, subject to the conditions and requirements of this title.

    and it would be within Congress’ reach to do so. By this change, they have taken stringed musical instruments out of the realm of patentable subject matter. Also, they could change the period of patent protection to 2 years, but they probably couldn’t get away with changing it to 1000 years.

  81. Bobby – that does not clarify the part of your statement that I have asked you to clarify twice now: “not what they can take.

    Please clarify.

  82. Gene,
    I’m an Electrical Engineer with 27 years experience including R&D work (industrial automation and robotics) at a large aerospace firm. I do Electronic design, Mechanical design, and software engineering.

    Unlike many of the engineers I work with I have helped with patent searches on carefully selected parts of our designs in all three of these areas. While I personally like the idea of patents for unique new development. I find myself in a bit of a quandary after having had experience with the patent system. This is due to the fact that within the realm of software development the use of patents is simply not economically reasonable. As a first point of reference I point out that the prevailing industry practice is to ignore patents unless the software firm you work for is taken to court over patents. Why is this? Commonly I am told that this is due to potential triple damage awards if you are aware of the patents and go ahead and use the technology anyway. This is a good business reason but is actually not the entire story. Perhaps my experience is instructive: The patent searches I have done using various patent search engines on average took over 10 times the man hours that actual development took for those sections of code that we were concerned with. At this level of search I found a number of patents that we should be concerned about but there were a few issues:
    1. We were not sure that all potential problem patents had been found.
    2. We pulled the plug on this project because we figured that actual analysis of the found patents to see if there was or was not an infringement would take on the order of ten times the search man hours. (Not including effort to work around the patents.
    3. We were looking for less than 10 specific software concepts and our software contained perhaps 2000 – 5000 concepts that we did not have time to search for but that also might be potential problems.

    We did find that there were software patents that had been upheld that could be expressed in as few as two lines of code. In the most egregious case one (upheld) patent reminded me of a quiz question I had been given in my first digital logic class. An answer that every electronic student was expected to understand about the basics of digital logic operations in the first year of studies for an undergraduate degree. (Not exactly what I would call not obvious to a practitioner of the arts – which has been described to me as equivalent to someone with a doctorate in the target field.)

    In short we decided that a policy of full patent search to avoid infringement was impossible unless the market could bear a cost increase in excess of 100 times our current price list. We went over to the do not look at patents strategy.

    Honestly the state of the patent system is a total mess. Many of the mechanical and electrical patents that I reviewed for other parts of our developments were granted protecting simple concepts that should be apparent to anyone that had high school physics let alone an engineering degree.

    I suspect that part of the problem is that the examiners are working within a quota system based on granting patents. I believe if we turned this on its head and had increasing fees with each resubmission and that the examiner quota was based on providing rejections based on prior art, we would have a much stronger system with much higher quality patents. After all it is only in the best interest of society to grant a patent if the revealed art is actually new and non-obvious. If you submit a truly new idea first time and pass the fee is small. If you insist on trying to beat a weak patent into the system the fees should increase (astronomically) so as to fund all the time you are waisting.

    So there is a good economic reason to avoid software patents. Of course it is true that the law really does not examine economic issues at all (and is in at least one way flawed as a result). But if all software companies had to be certain they were not infringing then we would be paying somewhere on the order of $50,000 for each seat of Microsoft Office Pro. The ultimate result would be a few large software conglomerates and no way for small firms to innovate or compete.

    Because the law is unconcerned with economic reality we should look at legal reasons to allow or disallow software patents there are computer scientists that have done a very good job of explaining why software is an area that is not appropriate for patent protection. If you do not agree you perhaps need to go back for a degree in mathematics or computer science so that you can properly understand their concerns. Software actually is simply mathematics. In my work with software Copyright has been a very fine and appropriate way to protect IP.

  83. @Blind Dogma
    Congress can take anything they want out of patent eligibility. I suppose it would be more accurate to say they can choose to not give protections anymore for any X,Y, and Z they so choose.

  84. Curtis-

    Your comment is thoughtful and you had me right up until you wrote this provably false statement: “Software actually is simply mathematics.” No matter how much you want to believe that it doesn’t change reality.

    I will ask you what I asked others. If software is really math what is the numerical equivalent for the IPWatchdog.com home page. If software is math and there is a solution and the code is nothing more than an equation, then solving a simple HTML and PHP file should be cake. Of course I will need you to explain how the numerical solution you come up with can accurately represent exactly what I want it to represent and display at any given moment. Your proof/answer must also include instructions on how a single number can be loaded to a server to get the display of the page.

    Of course you know this can’t be done, and neither can you reduce the home page file. So if you cannot solve it and you cannot reduce it and it isn’t actually an equation then it CANNOT be math. Software is a set of instructions that direct actions. It is programmed in a code that is expressive, hence the copyright protection, and then that expression is translated into machine readable form so the machine can act on the set of specified instructions. WAKE UP! Stop looking at the binary code and start looking at reality. No matter how much you want to ignore reality it still is the reality.

    As far as it being too difficult for you to respect the rights of others, my heart bleeds for you, it really does. But that it the business world and if you want to engage in business you either have to engage in reasonable business practices that are calculated to succeed, or you can ignore the rules and then pay the consequences. What you and others in this space seem to want to do is complain it is too hard and therefore no one, even those willing to play by the rules, don’t deserve rights because you find it inconvenient to follow the law. Grow up! Either act responsibly or run the risk and don’t complain when your own decisions turn against you.

    By the way, perhaps it is you who needs to go back to school. As an electrical engineer I have more math credits than a math major, and you obviously know very little about programming if you think software is written in mathematical equations.

    -Gene

  85. Curtis-

    One more thing. Copyright is insufficient. Anyone who knows you have only a copyright can simply copy exactly what you are doing and write their own code and there is nothing you can do. As long as they don’t cut and paste your code you can be ripped off and there is nothing you can do with your copyrights. So go ahead and fool yourself, but for those who actually want to know the law and the business reality, listen that that ridiculous advice at your own risk.

    -Gene

  86. @Curtis,

    I am a quantum nuclear physics genius with 200 years of experience in the Piled Higher & Deeper Usurper Detection (PhDuD) field. My appeal to greater weight of authority checks in with 27 tons of more BS than yours.

    Our company was recently commissioned to test the object codes of 237,456 software products. Within minutes of picking up each of the SPUDs (Software Product Under Detective’s-scrutiny) we were able to identify (using our PHDud technology –which is an unpatented trade secret & we would have to kill you if we suspected you had any clue as to what PHDud stands for here), 31.415926 specific software patents that each such SPUD violated. We immediately contacted the owners of each of said 31.415926 software patents and ratted out to them, the identity of the infringing SPUD and the specific 2.718 lines of object code therein where the infringement took place and the 5.4 claims that were so infringed.

    The patent owners were so thrilled with the reports we gave them that they each gave us a reward of one times google dollars.

    Then we turned around and used our more advanced Patent Invalidating Technology Services (the PITS) to show each SPUD manufacturer where the 1.414 lines of inequitable conduct resided in the 10,000 lines of prosecution history of each tested software patent. They were so delighted, they each gave us 2 times google dollars for each rat’s report.

    We took our many googlefuls of dollars and invested them in pet rocks, which area our market research department has advised us is the next up and coming big thing. Once our massively opulent returns on invested notes (MOROINs) come in, we will buy a galactic super computer to find the mathematical solution to the IPWatchDog question, although we already suspect that the answer is … 42.

    After that, we we will anxiously await the Nobel Committee’s recognition of our space-time fabric breaking-through work on the proof that all software is just maths pure and simple. But then again, you already knew that because you had cheated and used a time machine to go into the future and discover the answer. ;-)

  87. Bobby,

    Your legal understanding is as amusing as it is wrong.

    You may be surprised to learn that the Government is indeed limited in certain matters as to what they can “take” (due process and all that). Further, the government is not allowed to act in capricious ways – the arguments about impeding progress and/or costing more than it makes have never been objectively verified, thus to limit based on such subjective findings would be capricious.

    Step Back and Curtis – each of you win a free cup of Kool Aid for the thoughtful and clever efforts to pile it higher and deeper. But Step Back, if you had used the software module “Believe my BS plus One”, your story would have automatically been filled with numbers that would at the same time crush your opponent yet not have strained the credibility factor of a typical Kool Aid drinker.

  88. @Blind Dogma
    When I say take, I only mean to apply it to reducing the patent system.
    Also, I’m speaking primarily about Congress here, not SCOTUS. Congress doesn’t NEED a reason to pass a law, although it’s generally more well received by the public if you have one, even if it’s dubious. Arguments that it hurts the economy would be a decent motivation for Congress to end software patents, although pressure from the bank industry and blackmail from Google could do the trick as well. Eldred v. Ashcroft puts forth a precedent that Congress can adjust the terms of existing copyrights, so they would be most likely be able to do the same for existing patents, whether it’s expanding or shrinking them, so Congress could not only stop software patents from being issued anymore, they could also stop existing ones in their tracks. However, we probably couldn’t stop existing patent suits or later suits that occurred over past infringements.

    When it comes to SCOTUS, they can declare too much unconstitutional when it comes to patents, but can’t declare too little unconstitutional.

  89. Step Back and Curtis – each of you win a free cup of Kool Aid … your story would have automatically been filled with [credible] numbers that would at the same time crush your opponent.

    @BD (comment 85)

    Thank you for the free Cup’o Kool Aid.
    I drink of it gladly, as always.

    However, I fail to understand why my numbers don’t meet the credibility test.
    Software, after all, is pure maths.
    My retort is filled with pure maths. Ergo it is software.
    Moreover, it is credible because numbers never lie.

    How can a claimed 27 years of alleged experience as a double E stand up to my claimed 200 years of alleged experience as a quantum nuclear physics genius?
    Come on now! Everyone can clearly see that my numbers are way more credible that Curtis V. Right’s numbers.

    Also, I’ve done way more research than he did because my group examined 237,456 software products compared to his measly one product. My group was way more “efficient” than his in terms of man hours spent and costs per line of code both in terms of finding potential infringements as well as coming up with good solid inequitable conduct defenses. It’s all in the numbers. It’s all simple math.

    By the way Curtis; Orville and Wilbur said to say hey to you. So, hey.

  90. Pssst, Step Back – the “BS plus One” module is for subtle differences that meet the credibility standard of both IT workers and those a bit more socially adept.

    It’s for those who want to have a glass at a time rather than attacking the Kool Aid with a funnel and a three foot long length of flexible tubing.

  91. Gene, you’re being deliberately obtuse here. You pretend that recognizing that as long as software patents exist, then you may need to have a few at your disposal is the same thing as saying software patents should exist in the first place. You say, “Let’s try and keep it honest,” but you are not being intellectually honest. This is an easy concept to understand.

    You also imply that the “arms race” mentality is correct, and that it’s just the way the world works. There is a big difference, however, between software patents and weapons. The reason why an arms race is hard to avoid is that neither party can stop the other from having weapons. The existence of software patents, however, is not inevitably possible as a result of the laws of physics. Software patents are only possible if they are legislated. If the legislation is removed, then neither party has software patents, and they are no longer a threat. Just because a company feels the need to have software patents at their disposal as long as software patents exist doesn’t mean they think software patents should exist.

    The issue of patents as a motive for investment is also conditional. If software patents didn’t exist in the first place, then they could be given no consideration by investors.

    All of your arguments in favor of software patents are circular. They all depend on software patents already existing. You make no argument for why software patents should exist in the first place. If you are not concerned with whether software patents should exist, but only what to do while they do exist, then say so.

    One thing that software patents are not ostensibly for is just to benefit attorneys, yet that is their predominant function at this point. Software patents haven’t existed very long. Explain how the track record of the software industry during their existence is so much better than before they existed.

  92. C. Whitman-

    I’m afraid it is YOU who are being deliberately obtuse, and I would appreciate an explanation of your biases.

    Perhaps you are unfamiliar with my voluminous other writings on this topic, but it is not possible to write and re-write a series of complicated issues in every 2500 word article.

    Software patents MUST exist because that is what the patent laws require. If you want to kill software patents then you have to make methods not patentable because there is simply no way to define software in any other way. So if you want to kill these patents then you will kill diagnostic methods that rely on computer implementations and any other invention that relies on computer implementations, which would be to effectively prevent patent protection for all new innovations since the most exciting and advanced innovations all rely on computer and associated computer methods on some level.

    Methods have been patentable since 1790, so there is absolutely no chance that Congress or the Courts will ever prevent the patenting of methods. So that means you have to live with software. Further evidence is the fact that the Supreme Court had the opportunity to kill software patents and didn’t. In fact, 8 out of the 9 Justices clearly suggested that at least some software must be patentable. So software patents WILL exist. It makes no sense to pretend that they won’t exist in the future or even that they shouldn’t exist. They should exist and will exist. Software is nothing more than instructions to a machine and to suggest otherwise is to ignore reality and be blinded by binary code. Step back and see the forest for the trees.

    That being that case, whether you like it or not, it is irresponsible for companies who operate in the software space not to have patents. Business savvy companies will have patents and if you don’t have patents you are a target and you are going to have more difficulty than otherwise in raising funds from investors.

    By all means, don’t get software patents if you want to fail. But to suggest my logic is circular or I am being obtuse is intentionally misleading, and I would like to know why you are so intellectually dishonest? What exactly is your agenda?

    -Gene

  93. Gene,

    I was talking specifically about this article, not every article you’ve ever written. I don’t ask that you don’t make an argument in favor of software patents. I just ask that you don’t pretend that Red Had having filed several software patents supports the existence of software patents. I ask that you don’t pretend that the advantages of having software patents as a result of their existence are a reason for their existence.

    If, in this article, you are not trying to justify the existence of software patents, but merely the wisdom of acquiring them at present, then fine. You come across as trying to confuse the two points, however, rather than considering them as separate issues.

  94. C. Whitman-

    Red Hat has filed a lot more than “several software patents,” so please try and keep things honest.

    I did not pretend that the reasons for having software patents justify their existence. Not once anywhere in this article did I suggest that. The clear thrust of the article is that having software patents is the only responsible business thing to do if you are in the industry, and I set forth two primary reasons. Defense and investors.

    Software patents are justified because methods have always been patentable and always will be patentable. Patents promote innovation and the vast majority of innovation that is exciting and paradigm shifting employs the use of computers and special purpose software. Preventing patents on new and nonobvious software would starve start-up companies engaged in cutting edge innovation for funds.

    To the extent that there are problems with software patents, and there are many, it is because of bad patents. There is no reason to vilify the system or patents in general (or software patents specifically) because the system broke down. It broke down all around us in every area of innovation for a time. The system needs to be made to work, and part of that working is challenging bad patents and ignoring ridiculous extortion letters claiming you are infringing without any justifiable rationale. More on that to come in a few days.

    -Gene

  95. “Preventing patents on new and nonobvious software would starve start-up companies engaged in cutting edge innovation for funds. ”
    It would take away the competitive advantage of firms with patents over firms without patents in getting funding. That does not equate to VC funding for startups ending or even necessarily diminishing, and it would lower the barrier to entry and remove a competitive advantage established firms generally have through patent, both of which are advantageous for startups.

    “To the extent that there are problems with software patents, and there are many, it is because of bad patents.”
    If you can largely fix the problems, then you can minimize the criticisms, but until a functioning plan for reform appears, the simplest answer to solve this problem to keep patents away from software. If you want opponents of software patents to be quieter, then the big problems with the system need to be handled, because until then, the reality of the system is very different from the theoretical system that works. Yes, you can stand up to a frivolous suit, but in many cases, this will cost significantly more than the patent fees being sought, meaning that doing the ‘right thing’ is actually bad for the individual business, even if it is good for the ecosystem.

    As for software patents being a permanent fixture, don’t take it for granted, especially since Bilski was a narrow ruling. The other side certainly won’t. Even if SCOTUS were to unanimously say something like “The idea that software itself can be patented is completely ridiculous and no just society would ever grant software patents”, there would be many still concerned with software patents emerging again and stand eternally vigilant.