Oral arguments were given in 2009-11 yet, six months later, there is no ruling.
The questions presented include:
”
Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.
“
During arguments, the justices demonstrated clear understanding of the issues, including that allowing business methods may include algorithms in a computer programme where quantities in the memory of a computer can represent real-world values that matter to business. This opens the whole can-of-worms that are software patents. A business method is an abstract idea. If it were real, then it would follow natural law and anyone implementing method X would always get the same result. We know that does not happen. How can something that depends on timing, opportunity, demands of others, interference by others be patentable? It hardly can be classified as a “useful art” if the outcome is uncertain.
The “amicus” briefs were piled high with supporters of software patents. They were all trying to dodge the issue one way or another. Even Bilski and the opposition both skirted the issue as best they could. The patent office does not want business methods patents but does want software patents (It has issued thousands.). One argument was that adding software to a computer made the computer a specific machine even if it did not transform anything more than bits of information. Has “abstract” lost its meaning with people? Information, itself, is an abstraction, the idea that we can have an idea about ideas…
I do not know what the delay is. It could be the mountain of amicus briefs all have to be discussed and debated, simply increasing the work of producing a summary document. The supremes do not spend 100% of their time on one case but assign clerks to do leg-work and review the work as time permits. Then they discuss/debate among themselves to come to a consensus or minority/majority postitions.
My belief is that they will shoot down business methods patents for not passing the machine-or-transformation test and will clarify that that includes software patents. I expect they will clarify the machine-or-transformation test to exclude software patents except where the software is a key element of some particular machine, not a general-purpose computer. For example, a computer control system may be an essential element of some machine and the software including algorithms may be legitimate patentable material in that case only. Software that can scoot around amongst random PCs to give them some capability does not make them specific machines. Otherwise a PC with two applications might be schizophrenic. How could one specific machine be another specific machine at the same time?
I hope this time is being used to get it right and fix the mess that State Street unleashed. I expect software patents will be kicked out for any reasonable decision by the SCOTUS. Otherwise the silliness will continue and possibly become worse. The USA will be suing itself out of business if business patents continue. Software patents are just as bad as almost all businesses use software. We will also have the outrageous situation that multiple entities may shake down a business for royalties for the same business method described in multiple patents. That happens when dealing in abstractions.
For FLOSS this is crucial. FLOSS needs to be free of software patents in order to grow otherwise every business using FLOSS will be paying royalties far beyond the benefits of FLOSS. That other OS is bullying GNU/Linux using software patents as a threat. The world needs to get back to treating software as copyrightable. It makes no sense to have it patentable as well.
One humorous side-effect of the killing of software patents in the USA is that other countries who have been persuaded to respect US IP will be embarrassed. They will be respecting and protecting something that does not exist. Another interesting side-effect is that M$ will have to write-down billions invested in software patents. Will they still get a tax-deduction for “research” then? I expect that the stock-price will tick down quite a bit for the patent portfolio is now considered to have value. A further serious effect of this is that “partners” who agreed to pay royalties may be embarrassed and much less likely to do deals with M$ in the future. No one trusts an extortionist.
Update: a blog entry at SCOTUSblog states there are 40-some decisions that need writing before the end of June, so the delay in Bilski could be just the share of time it’s gettting combined with complexity. We shall soon know. It is not impossible but very unusual that a ruling will not be published before July.
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“I do not know what the delay is”
You apparently do not even know what the issue is from a reading of your blog here.
The business method exclusion, should it be upheld, only really pertains to such patents as “one-click” and “buy it now” which really only affected e-commerce and not software use per se.
“M$ will have to write-down billions invested in software patents”
That is a wrong belief. First, if Bill Gates could do away with software patents or even all patents everywhere, he would have done it years ago. Patents favor those unable to actualize inventions whereas that has never been a problem with Microsoft. Second, MS prior investment in development costs are instantiated in its code base, not in its patent portfolio. For the most part, its patents are just the results of filings by its thousands of developers and encouraged by a generous patent award system much the same as with IBM, Oracle, Symantec, and other large corporations servicing the PC hardware and software markets.
Patents are just a side line and rather insignificant at that.
I have read the arguments. I understand them. The justices understand them, judging by their pointed questions. One justice mentioned that business methods patents and software patents are tied as all businesses use software these days. He explicitly raised the matter of killing business methods patents but letting them in the back door by keeping software patents. They are on the ball. The issues matter.
M$ is charging manufacturers money per device for FAT and who knows what else. It is big money to them. They hide it in the SEC reports but it is big money or they would not bother. Software patents also stifle competition which tilts the table in M$’s favour. One report stated that M$ had 600 companies paying them royalties for software patents. That has to be of the order of a $billion. If SCOTUS should somehow not kick out software patents, M$ will pour on the sales effort. They will have a green light to extort for several years. They will tax every commercial use of GNU/Linux if they can find a way.
If software patents are not useful to M$, why did M$ file a amici curiae brief in Bilski, full of errors, too?
This is M$’s conclusion:
“
”
In what way if FAT physical? It’s a data-structure! One of M$’s example of an early computer was a programmable loom. They forgot to mention the loom or the method of programming was patentable but the programmes were not.
From the oral arguments, the Judges DID NOT understand the issues.
The issue is: Are the claims of the Bilski patent within a CATEGORY of patentable subject matter. (they recite methods and therefore clearly are within a category of patentable subject matter).
The questions the Justices asked mostly delt with whether the claimed invention was OBVIOUS or not…. which is a totally different issue.
You must have read different arguments than I did. The justices asked pointed questions trapping the presenters into weak positions. The SCOTUS will not be too concerned by obviousness but by interpretation of the constitution and the law.
That pretty well precludes software or business methods patents, eh?
I don’t see business methods or software in there. Do you? Software could be considered a process but software is always a process made up of steps that are not patentable like adding or storing information so there cannot be anything patentable in that.
Yes I do see business methods and software in there. The unmodified “process” is broader than and encompasses software and business methods.
Process is defined in 35 USC 100. Have a glance.
As far as 35 USC 114 goes, the Director may require only that which is possible. Since 35 USC 101/100 allow methods, and since in rarely makes sense for there to be a model of a process (a series of steps) or any reason to require one, I don’t see how 35 USC 114 would preclude patentability of methods. In any event, a flow chart would clearly suffice as a model of a process…those are generally provided as a matter of course.
That is why there is a machine test. You can certainly build a machine to carry out a process.
but what’s this about machine, manufacture, composition of matter or material? They are about processes of machinery or means to make things, not information. Abstractions like software have always been excluded until StateStreet. Why don’t you go out and get a patent on the process of adding? You will be laughed out of the patent office. If you invent a new adding machine, you will be welcome. See the difference? You cannot patent ideas like language, numbers, information and software. If any old process could be patented then every process could be patented including adding and algebra. It’s just not on and the SCOTUS will set the PTO straight, probably the week after next.
The SCOTUS showed they were on the ball in arguments so I don’t see any other outcome. They have to kill business methods and that necessarily includes software. The length of consideration is a puzzle but it is a big issue and they have lots of other cases.
“Software could be considered a process but software is always a process made up of steps that are not patentable like adding or storing information so there cannot be anything patentable in that.”
Where in 35 USC 101 do you see that a process made up of steps like adding or storing information are not patentable?
Machines and compositions of matter are OTHER categories of patentable subject matter.
Methods are not a second class category. Indeed, they are THE FIRST CATEGORY LISTED!
You can’t get a patent for adding in general, because adding has been around a while, but if you come up with a new non-obvious method of adding, you can and have always been able to get a patent for it.
Here’s claim 1 from a patent to FFT:
1. The machine method of generating a sequence of signals which represent Fourier series coefficients of an input sequence of N real-valued signals comprising the steps of:
1. storing said input sequence of signals in a machine memory,
2. generating an ordered set of complex-valued signals,
3. selectively combining in a machine and according to a constant relation said stored signals and said complex-valued signals, thereby to form a new sequence of complex-valued signals none of which bears a necessary conjugate relation to another,
4. storing said new sequence of signals in said machine memory in place of said sequence of signals previously stored in said machine memory, and
5. iteratively performing steps (3) and (4) with the sequence generated by the immediately preceding iteration and said ordered set of signals entering as operands.
That issued in ‘71 from an application filed in ‘68.
http://www.google.com/patents/about?id=hg9uAAAAEBAJ&dq=method of fast Fourier transform&as_drrb_ap=q&as_minm_ap=0&as_miny_ap=&as_maxm_ap=0&as_maxy_ap=&as_drrb_is=b&as_minm_is=1&as_miny_is=1700&as_maxm_is=1&as_maxy_is=1980
And Claim 5 from another FFT related Patent from ‘74/’ 77
5. A method of computing the discrete Fourier transform of a waveform comprising the steps of:
receiving a series of digital data representative of said waveform;
storing sequentially said series of digital data representative of said waveform;
subtracting the oldest stored data from the newest stored data to obtain a difference each time a data is received;
generating a series of predetermined constants;
providing an output shift storage means;
adding sequentially each of the data stored in said output shift storage means to said difference to produce a series of addition signals;
multiplying each addition signal by a predetermined constant from said series of predetermined constants to obtain a series of products;
sequentially storing said series of products in said output shift storage means;
whereby said output shift storage means contains a series of Fourier coefficients.
http://www.google.com/patents/about?id=2ao6AAAAEBAJ&dq=method of fast Fourier transform&as_drrb_ap=q&as_minm_ap=0&as_miny_ap=&as_maxm_ap=0&as_maxy_ap=&as_drrb_is=b&as_minm_is=1&as_miny_is=1700&as_maxm_is=1&as_maxy_is=1980
FFT is an algorithm, a combination of logical steps. By definition there is nothing innovative in the steps although the combination may be. FFT is a better way of doing some arithmetic that was around a century earlier so it could be said to be obvious. FFT was also published in 1965 so I cannot see it being patented in 1968.
see http://en.wikipedia.org/wiki/FFT#Cooley.E2.80.93Tukey_algorithm
35 USC 102 : “unless (a)the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or”
That cuts out most arithmetic, eh?
35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
(b)
(1) Notwithstanding subsection (a), and upon timely election by the applicant for patent to proceed under this subsection, a biotechnological process using or resulting in a composition of matter that is novel under section 102 and nonobvious under subsection (a) of this section shall be considered nonobvious if-
(A) claims to the process and the composition of matter are contained in either the same application for patent or in separate applications having the same effective filing date; and
(B) the composition of matter, and the process at the time it was invented, were owned by the same person or subject to an obligation of assignment to the same person.
(2) A patent issued on a process under paragraph (1)-
(A) shall also contain the claims to the composition of matter used in or made by that process, or
(B) shall, if such composition of matter is claimed in another patent, be set to expire on the same date as such other patent, notwithstanding section 154.
So, the processes the law speaks to are about manufacturing stuff. The processes cannot be about means of doing business or software or arithmetic.
“FFT was also published in 1965 so I cannot see it being patented in 1968.”
What do you mean you can’t see it being patentin in 68? I just showed you a patent to a particular method of FFT that was filed in ’68. Are you in some form of denial?
“That cuts out most arithmetic, eh?”
It cuts out basic arithmetic that is taught in elementary school. It does not cut out new non-obvious combinations of steps directed at solving particular problems (like better, faster, cheaper Fourier transforms).
“So, the processes the law speaks to are about manufacturing stuff. The processes cannot be about means of doing business or software or arithmetic.”
I see that you posted 102 and 103, but I don’t see how that leads to your conclusion.
The portion of 100 you posted:
“The term “process” means process, art or method, and includes
a new use of a known process, machine, manufacture, composition of
matter, or material.”
means that the term “process” includes those listed things, it done not say the term process is limited to those things.
The reason it says anything at all is so that there is no confusion that because the machine or composition of matter is known that somehow prevents a new use of that machine or composition of matter from being patented.
So, a new use of a computer (e.g., new software for providing the new use)is patentable, even though the machine is “old” or known.
By the way, there is something wrong with your web page. It keeps telling me I’m posting too quickly.
“FFT is a better way of doing some arithmetic that was around a century earlier so it could be said to be obvious”
This patent is long expired, so it is not so useful to argue its merits, but your statement is nonsense. Having a “better way” of doing anything is the essence of a process patent. And the fact that so many years went by before those who use the process and understand the application did not discover the improvement immediately is proof of its non-obviousness. Where did you go to law school anyway?
Tap tap tap….is this thing on? Why are my 2 posts still awaiting moderation?
There is a rule against granting patent protection for an invention that was publicized and therefor obvious before filing.
The definition of process is circular so it may not mean much at all. In legal terms this may be a way of combining dictionary definitions with the legalese but it is sloppy. Ideas are definitely excluded so processes on information in a computer is also excluded.
The web page has a feature to block spam which limits posts to 15s. If time shifts on one or both computers you can get that result. I have no control of the clock/system time on the server.
The whole purpose of patents is to increase the incentive to invent. There is no incentive to invent something already invented. The charlatans who claim to have invented something which is no useful improvement over the prior art do not deserve and are not entitled to a patent.
I am traveling. I make this comment from a borrowed PC. It has a flaky wireless mouse…
I agree with everything you said on the morning of May 11, except the bit about 35 USC 100 being sloppy and circular, which I’ll address in a minute.
However, nothing you just said justifies the position that software should not be patentable. The invention of a programmable computer did not, in that instant, render all software known or obvious and not all software is known or obvious.
For example, someday, someone may write a bit of code that accepts a set of DNA sequences as input and predicts the organism resulting therefrom as output…with a 3d model and maybe an MRI type display of the innards. That code may involve adding and comparing and matrix multiplication. That doesn’t mean that the method found or developed for making that prediction is known or obvious.
Now, back on 35 USC 100.
35 U.S.C. 100 Definitions.
When used in this title unless the context otherwise indicates -
(a) The term “invention” means invention or discovery.
(b) The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
This simply puts to rest any argument that someones invention is related to a method and not a process, as if there was a significant difference in the meaning of those words and it prevents someone from saying…oh…it says process means method and it doesn’t say process means process…it broadens or “overloads” (as the C dudes would say) the additional terms into the word –process– as used in the associated statute. Its elegant, not sloppy.
Its similar to me saying in a document about colors. As used in the paper, –red– refers to red and any color from the lightest shade of pink imaginable to the deepest darkest shade of maroon, cherry and/or burgundy conceivable and including candy apple and fire engine. Not circular or sloppy….it just make the rest of the document easier to write.
I think you might find some clarification and relief here. http://wlflegalpulse.com/2010/05/04/brief-video-commentary-on-written-description-patent-requirement-case/
If a precise description of the invention requires the software patent seeker to disclose the code used as “the invention”, that could put a stop to this silliness.
Assume software is patentable under the rules.
Case 1), the software is an algorithm, a digital process. I can let every variable be the representation of something useful. The operations of the computer can be broken down into some combination of boolean operations including copying and moving data. That’ s what the gates in the electronic machine are doing. There is no difference between the outcomes done by the computer and the outcomes I could, given enough time, do with paper-and-pencil arithmetic. The whole process is obvious to anyone skilled in the art of programming or mathematics if he is given the desired outcome. So neither the mathematics nor the software to carry out that mathematics is patentable. The situation for the programmable loom, one of M$’s example: the machine to make carpet was a patentable invention but the particular pattern input in the programming cards were not. They were information and operations based on information, not patentable subject matter. You do not patent such patterns, you copyright them.
Case 2), the software is a data-structure, a digital entity, either constant or variable. This is clearly an abstraction, not “the real thing” it represents. This is clearly not patentable because such ideas are not patentable according to the law.
All software is one or the other of these two cases and most often, a combination of both. Because the data is abstract and the algorithm mathematical we can always change the definitions, the basic ideas of the software and it can become something else. E.g. I have just given some students the task of creating a programme to keep shopping lists. The data structures and the algorithm are identical if the same programme is used to calculate a payroll. I could likely change the column headings and the software would be instantly recognizable and usable. So, if software were patentable, I could obtain several patents for no additional effort, precluding others from freely keeping shopping lists, payrolls, inventories, accounts, etc…. Although the law does mention new uses of processes, this example could be seen as new uses of the wheelbarrow. The patent office should not issue a patent for every possible claimed use of a wheelbarrow because there could be an infinite number of them and no innovation is involved. This is the ultimate reason why software patents make no sense. It is not possible to analyze any invention to determine what patent covers it by any simple reasoning. That is why we have two or three patent trolls going after every new product that succeeds in the market. The trolls can claim infringement and it has to come down to a jury trial years later to sort the mess out. Software patents are no advantage to society at all, just an advantage to bullies and extortionists.
That is interesting. I still think it is silly to give software both patent and copyright protection. It’s a sort of double jeopardy on all innovation in software. The more you innovate, the more you are punished. If there were some justification for issuing patents for software they should at least make clear there is no copyright beyond the life of the patent. One of the principle motivations for patents is to force disclosure of the invention. Revealing the code would be a minimal requirement akin to producing a working model of a machine. If the source code is not revealed there is nothing of value to society revealed in the patent application. As it is M$ and others go out of their way to make 20 year old software unusable defeating any benefit to revealing the code even if it could be used 20 years later. The software industry that supports software patents wants things both ways. They should not have it.
More on this topic…
M$ just had a new patent issued by the US PTO. This one if for running an application from a flash drive. I kid you not. The great innovation is that a user does no longer need to carry his PC with him but just the software on a flash drive. This so-called invention is obvious, has been done for ages ( I saw it in the 1960s with dismountable hard drives, tape drives and paper tapes), and is widely used in BIOS since 2004 or so with flash drives in particular. Anyone? Tell me with a straight keyboard why this patent should be issued other than to extort money from small guys unable to battle M$ in court. The classic patent troll promotes useful technology and then finds way to tax it.
Come on SCOTUS! Spare us this kind of nonsense!
You base your assertions about the new Microsoft Patent on the wild assertions of some other Blogger. The other blogger went on at great length attacking figures and individual paragraphs of the patent.
Neither of you addressed the claims. Here is the broadest software claim in the subject patent:
1. A method of developing a distributed parallel computing program, comprising steps of: establishing at least one distributed shared variable, wherein the at least one distributed shared variable is a single variable that includes several variables that may be physically distributed across multiple memories; developing at least one distributed sequential computing program to access the at least one distributed shared variable; and transforming the at least one distributed sequential computing program into at least one distributed parallel computing program by spawning at least one child distributed sequential computing program from the at least one distributed sequential computing program when at least one intermediate condition occurs within the at least one distributed sequential computing program, wherein the at least one distributed parallel computing program concurrently uses the at least one distributed sequential computing program and the at least one spawned child distributed sequential computing program to perform parallel processing and/or operations, wherein the at least one intermediate condition comprising one intermediate result that will be required by the at least one spawned child distributed sequential computing program to continue computation.
Please show where that has been done before or explain why it is obvious in light of what has been done before.
That’s pretty easy. I have used GNU/Linux terminal servers since about 2003. The GNU/Linux terminal server that I usually use is a single PC but it can be a cluster of parallel processors of any number. We typically use NFS to share a file-system with all the members of the cluster and each one can access any user’s data and each user can access commonly shared data. Each user and each of his processes can spawn other processes that can run on any member of the cluster or all of them. When I give an assignment to a class of students using this system they can act individually or in groups to accomplish any task running anywhere on the system. For the case of a distributed computer programme I could use the example of an electric field calculation in a 3D space. Each student’s application could be in control of some fixed region of the space or the whole of it, sharing the whole problem. The intermediate result could be the end-result of the field calculation and the spawned process requiring that result could be the display and analysis of the 3D field. This spawned process could wait indefinitely for the result of convergence of the calculation everywhere in the space. I have been doing this kind of thing since the 1970s on a variety of computer systems. A cluster makes it a little more complex to deal with everything in real time but it is no less obvious. The main thing different between then and now is that in those days we used mini-computers or main-frames and today we would use PCs or servers with GUIs.
You guys can argue ’till the cows come home, as lawyer like to do. The fact is, software patents are bad for business. They stifle innovation, make it impossible to write code that is safe from patent suits, favor big companies, and are expensive. Trolls and patent attorneys are the winners here, and the losers are everyone else.
I’m not sure I see an analog to this portion of the claim in the scenario you outline:
and transforming the at least one distributed sequential computing program into at least one distributed parallel computing program by spawning at least one child distributed sequential computing program from the at least one distributed sequential computing program when at least one intermediate condition occurs within the at least one distributed sequential computing program, wherein the at least one distributed parallel computing program concurrently uses the at least one distributed sequential computing program and the at least one spawned child distributed sequential computing program to perform parallel processing and/or operations, wherein the at least one intermediate condition comprising one intermediate result that will be required by the at least one spawned child distributed sequential computing program to continue computation.
If it is indeed there, the this particular patent might not be valid.
If you’re interested I can show you how to get to the papers exchanged between the applicant and the examiner. I’m sure the examiner first said the claims were not allowable and then was persuaded otherwise through counter argument and maybe claim amendment.
By the way, I’m not sure i know what this means “single variable that includes several variables”. Do you?
I mean a structure or an array might include several variables, but I’m not sure it qualifies as a “single variable”.
I’m surprised this conversation quoting USC 35 has gone on this long without someone pointing out how broken patent law is. We can quote from it till the cows come home, but the law is unconstitutional, certainly as it applies to software and business methods. The justices were very skeptical of how business methods would have eluded patenting essentially over the centuries.
More so today than ever before, and for more classes of inventions, would a 20 year monopoly not promote the progress. See for example this comment and its included hyperlinks http://www.enterpriseirregulars.com/17600/the-problem-with-software-patents/#comment-7892
I recommend those that haven’t read the FFII’s and the FSF’s Bilski briefs that they do so (groklaw.net has links to them).
And let’s note the folly of using as a criteria for granting a 20 year monopoly: what is not obvious to an average practitioner. This means if an average practitioner that spent a bit of time to uncover what might not have been obvious to him/her at first sight (eg, see the Microsoft patent claim just mentioned) and rushes out to the patent office, then all the above average practitioners who recognize the obviousness of that invention, and/or who have developed details much further along, and/or who could derive the invention in short order in the near future without any further help from the patent (remember we all work within a social context of many free influences from many people and fields that don’t patent every word they think of), and/or who are much better positioned to improve on that invention and implement a high quality implementation of it over the next few years… will be hand-cuffed for a large part of their productive years. And this injustice and folly will get repeated over and over and over for the many patents being taken out and potentially enforced to their max.
Note the greediness and/or low degree of understanding of many that take out patents, when contrasted to open source developers producing a huge amount of innovation without any need to take out patents (neither did Einstein, Beethoven, etc) and who even release all the details of the complex product for all to see and use with very few if any restraints. How embarrassing it must be to all of those that say a 20 year barring of all superior competition is a necessary requirement for them to innovate (as defined by the patent application)! I don’t think we want the “innovation” from these leeches. Certainly, I would never trade a 20 year hold just on myself, never mind on the rest of society.
Patents are a tax by the wealthy on the innovation of the poor. The poor can’t afford patents, and prior art gives almost zero leverage and in fact is leveraged by those taking out patents. Where there is innovation, the broken patent system allows for leeches to come and lay claim to the work of innovators and hard workers.
[In the links mentioned above, make sure not to miss the link to http://markproffitt.com/ . The proposal mentioned there might actually promote the progress, unlike these monopolies the USPTO gives to any that bribe them.]
“One argument was that adding software to a computer made the computer a specific machine even if it did not transform anything more than bits of information.”
Taking that to a logical conclusion…then the RIAA is wrong to conclude that downloading a song from a pirate site is a breach of copyright: it must be a breach of patent law, since the addition of the song (as a form of software) transforms the machine. So who owns the patent on downloading software….
I think this Moebius strip needs further assembly. The instructions are on the other side.
“The whole purpose of patents is to increase the incentive to invent”
While I agree with the sentiment of the whole post, this one statement is (I think) part of the problem.
There’s a common misconception (or at least, I THINK it’s a misconception) that patents are a sort of “bribe” to get people to invent things, on the assumption that nobody would invent anything if they weren’t paid off by promise of monopoly power.
Instead, I would argue that patents are plainly intended to increase incentive to publish.
Or as I like to think of it – a “patent” is the compensation the public offers to an inventor for access to what would otherwise be a “trade secret” and therefore not publically available to be used or improved upon.
Personally, this makes me think that much of the crap that comes out of software patents (and similarly frivolous patents) could be alleviated by making the duration of a patent variable. Stupid little patents (e.g. “a specific application of a well-known mathematical technique” [I’m thinking here of a patent I saw on using first-semester Statistics to find peaks in data. e.g. taking the Variance of the Variance – “two measures of dispersion” as the patent said) might be offered only a year or two of the public’s allowance of monopoly, since its value to the public is so small, while genuinely useful material patents might get the full 17-20 years.
In the case of a useful new drug, 17-20 years might be reasonable, but when the 17-20 years is ALMOST up and the drug company comes back and re-patents a non-racemic version of the same drug, the minor reformulation might only be worth a few more years instead of effectively giving the company a 40-year patent on the same drug.
Even allowing “business method” and “software” patents, if minimally-innovative techniques like “giving a file two names so that old DOS machines don’t get confused” only got a few years, it wouldn’t be so obviously worth investing money in getting them patented to use as a competition-preventing tollbooth…
(P.S. Dammit, ” ” IS a valid character in an email address!…”Error: please enter a valid email address”. BAH).
>> Instead, I would argue that patents are plainly intended to increase incentive to publish.
We have to wonder how a low detail patent can get monopolies while the vast quantities of practical, detailed, de-bugged and immediately useful open source gets nil. Something is definitely wrong.
It would instead make sense to give open source innovation a full 20 years (rather than wimpy “prior art” status) or else lower the patent monopolies for all software down to zero as well.
Goose/Gander
>> and therefore not publically available to be used or improved upon.
Unfortunately, when you grant a 20 year patent, the public has absolutely minimal incentive to attempt to improve upon the idea or use it (it can become illegal to do very much with the idea). For many years, the risks grow every single year you have added more investments to something that was patented since you can have a large part of your work nullified. And, worse, you likely didn’t know there was a patent or, if you had been told or got lucky researching, you probably found it difficult to avoid infringement because patents are so broad.
Patents serve to rob people of their hard work. See this comment, for example: http://www.enterpriseirregulars.com/17600/the-problem-with-software-patents/#comment-7940 .
Again, recognize and give monopolies to everyone (rather than simply to the wealthy) or else give it to no one.
[BTW, no we can't invent a better wheel than the round wheel, though even if we could (in some cases), the costs to society for everyone to try to go around the round wheel is a large one. There is quite a cost to a monopoly that people will discover in much less than X years or where they already have and there are few ways to go around that. Many things become clear to many people around the same time because there are in today's world many with access to watch society well and to note certain things when the social context has reached the right point. Yet even if others are a few years our of the state of the art, why deny them the opportunity when they do get the chance? Point is that always someone if not a great many are being denied, especially for a monopoly that lasts way past the token year or two. Note that many many hard-working and smart people publish all the time (eg, mathematics, physics, open source, etc) without requiring a patent. The patent system, again, allows society's more greedy and wealthy members to repackage largely others' work in order to block society off from a very important class of solutions. If the patent holder got there fast enough, we all can suffer greatly. If someone beat the patent holder to the punch, the patent might still do much damage because of the costs to nullify it. And if a patent was not awarded, then society simply dodged one bullet among many coming our way.]
>> Instead, I would argue that patents are plainly intended to increase incentive to publish.
Don’t mean to pick on this line so much, but I almost feel forced to mention that Apple and various other companies are involved in aggressive multiple-patent lawsuits against each other right now. I don’t think it was the patents that led to competitors realizing they wanted to copy. Patents being so broad, it was the introduction of a product that showed much promise, or the independent rediscovery, that lead to the “immitators”.
BTW, I, like many many other people, occasionally get “brilliant” ideas that eventually appear in the market largely through someone else’s efforts. Not to analyze this phenomenon too much, the point is that many people have great ideas, yet they get nothing out of it because they are in a very weak position. There are too many obstacles standing in the way of mere mortals (ie, of people who are not overly business savvy or wealthy). In fact, patents held by giant companies are one of the real obstacles.
So while I might have an excuse to want a monopoly subsidy, what is Apple’s and Microsoft’s and IBM’s and every other giant’s excuse? They clearly are in a much better position than I am to leverage the ideas of their employees successfully (and even the ideas of mere mortals like myself).
It makes no sense to allow large companies to get auto software monopolies when we already have so many being denied any significant protection. Hardware monopoly grants to these big boys also make little sense except maybe a fairly short monopoly or else things like inventor’s tax credits, if that would help lead to extra desired R&D.
>> In the case of a useful new drug, 17-20 years might be reasonable
For similar reasons as just stated, I’ll disagree that any monopoly period near 20 years is a good deal for society.
There are other problems with granting monopolies for drugs (and for genes). The government is essentially saying that they want the wealthy to live but the poor to die. We aren’t dealing with a real limited resource, such as a surgeon’s time or limited raw materials. Instead, the government is forcing the creation of scarcity (presumably — ha! — on our behalf and to promote the progress).
One cited cost in the drug industry is the clinical testing costs required by law; however, not only can the government fix this problem through tax credits and other tools, but if we granted a monopoly, make it a very very short one. Even a year can spell death for many people, unnecessarily.
We can do many other things besides grant monopolies.
And note that health care costs in the US will continue to feel signficant upward pressure if we don’t end the monopolies. I am referring to drug patents and to gene patents mostly (the latter will hopefully be neutered by the courts in the not too distant future).
People, invention monopolies that don’t promote the progress are likely illegal because of all the obvious restraints and opportunity costs they represent (Constitutional violations without fulfilling any Constitutional requirements). And some monopolies are outright unconscionable. If we want population control, let’s spread education and the efficient tools that exist. If we want to curve crime among the poor, we can start by giving fewer hand-outs to the wealthy and having the government respect the human rights of most people a little better.
You guys can argue ’till the cows come home, as communists like to do. The fact is, software patents are good for everyone. They stifle the creation of copycat, “me-too” versions of software that has already been created and make it possible re-direct energies to writing code that serves under served sectors of the prolotariat. They favor the individual basement and garage innovator like the Wright Bros. and Steve Jobs. They are relatively inexpensive. The people win here. They gain access to a wider range of software and to an explanation of how that software works. Patents provide a foundation upon which the next generation can build a bright and shining utopia for the future.
Frankly, I think copyright and trade secrets are all that should protect software. Why? I look at it in terms of books. You and I can both right a mystery novel on serial killers, but can’t patent our story lines. It is illegal for me to copy your story verbatim, or even to modify it just a little. That is a perfect analogy for software – our programs may do essentially the same thing, but as long as I don’t copy your code everything is kosher.
If story arcs were patentable, the publishing industry would go to crap (or more so…), and that’s essentially what’s happening to the software industry. Imagine if Stephen King had to run a patent check before writing a new story! Imagine if Dean Koontz could sue him, and how much “innovation” would happen, just because of all the lawsuits flying around.
jimi, jimi, jimi -
You proposal isn’t even workable in the space of 2 sentences.
Sentence 1: It is illegal for me to copy your story verbatim, or even to modify it just a little.
Sentence 2, immediately following sentence 1: That is a perfect analogy for software – our programs may do essentially the same thing, but as long as I don’t copy your code everything is kosher.
If it isn’t a copy or modified just a little how is it that it does the same thing?
The invention isn’t in the selected programming language and is probably not in whether arrays, structures or objects are used. Those variations are not important. The invention is often in providing software that adapts a machine to provide a particular function that no thought to have it do before.
Face it. If you see a word processor for the first time and say hey, I can write one of those too, you are copying the invention of the word processor, even if every line of code is original. Just as if someone saw Wilbur warping a wing and said, Hey, that ain’t nothing but sticks, cloth and cable. I can build one of those too.
This is the falsity upon which software patents rest. I can envisage every permutation of bits that a PC is able to perform and every combination of inputs that is possible to control the process. I can form all analogue signals in a time-dependent manner, too, to generate all possible audio-video-neural-implant signals. I can patent all software programmes in this case. How silly. Lack of innovation becomes innovation in the USPTO. I can write a programme to produce all possible software programmes.
>> The fact is, software patents are good for everyone.
I think the fact is that you are wrong.
I tried to give reasons why software patents are unjust and a problem. Until you rebuttal a handful of those arguments, I don’t expect to be tempted to change my mind about this point of you being wrong.
>> They stifle the creation of copycat, “me-too” versions of software that has already been created
How hilarious. Patent law doesn’t say that the patent only has worth if the infringer was proven to be a copycat. No.
Patent law says that if a copycat shows up at the patent office first, we will give the copycat a patent.
Patent law does not penalize “copycats”.
Patent law penalizes those that stay home (because they are decent human beings, found the invention too obvious, were busy hashing out a detailed and quality implementation, simply have not cared to think about that problem yet, were busy trying to work around prior patent office abominable patents that were stumping their business, etc) or who show up a few minutes late.
>> and make it possible re-direct energies to writing code that serves under served sectors of the prolotariat.
Yeah, have everyone be kicked off a market and product space so that a single monopolist can exploit the many parts of that space that they are unqualified to exploit positively (wrt society).
Meanwhile, no matter how broad was this space we just reserved for the monopolist (who very possibly is nothing but a copycat in the first place), let’s now have the entire resources of society that are up to the challenge of this past market instead have to move further along and consider discovering a new planet or other heavenly body because they can no longer contribute to the exploration of the known ones.
“Sorry, you guys should have recorded your awareness of that planet before Greedy Copycat Leech did. Take a ticket and see you back here in 20 years. Have a nice day!”
[I hope my analogy of planets is clear, but I can explain if it is not.]
>> They favor the individual basement and garage innovator like the Wright Bros. and Steve Jobs.
The same Steve Jobs that got many innovative ideas from the Xerox Parc people?
Like I said, the patent office rewards the first copycat to ring their doorbell. How ironic that you provided the proof-of-concept example for me. [Well, not exactly since, fortunately for Copycat Steve, I don't think patenting software was in vogue back then.]
I don’t doubt the Wright Bros copied (or some would say “used”) the ideas of many others as well. Einstein and Beethoven surely did! It’s great to use ideas. We all have to in order to survive. For example, to make a living and progress in their work, many very bright and creative mathematicians leverage each others’ work all the time — and take out ZERO patents. [Patents would simply stifle the pace of further advancement, and I did say these mathematicians were really smart.]
Copying is fine.
Copying sure is not theft ( http://www.youtube.com/watch?v=djVaJN0f0VQ ).
What is rotten is to leverage the unconstitutional patent system so as to stifle society in order to feed your greed and illusions of grandeur.
>> They are relatively inexpensive.
I don’t have that kind of chump change lying around.
I have thousands of ideas. Even patenting one can be very problematic without resorting to donations or some other vehicle.
[Costs aside, it is sad for me to think that someone else will beat me to the patent office for many of these thousands of ideas, so I will never be able to really work on them during my most creative years. I must choose today which of these ideas I want to commit to for the next 2 decades and essentially give up on the others. That's what the patent system forces upon people. .. Wait! I could also challenge the system on constitutional grounds!]
>> The people win here.
The rich copycats win. Absolutely.
>> They gain access to a wider range of software and to an explanation of how that software works.
Funny.. the explanation in a patent, never mind the bundle of restrictions that come with it, is so inferior to the information provided from open source projects, which are 100% free to use and leverage in almost any way.
I would think open source developers were being given 1000 years of monopoly or something in exchange for their generosity, but actually they are given nothing.
I guess it simply is fun and useful to invent and create without restrictions. Who’d thunk it?
Hey, maybe copycats will leverage the great open source out there, most of which innovations are not being patented, in order to stifle society, feed their greedy hearts, and win!!
Has someone patented that idea? [No need to answer, IBM has actually patented related business methods on exploiting the patent system.]
>> Patents provide a foundation upon which the next generation can build
That’s great. We throw the current generation (minus the rich fast running copycats) under a bus. Then, in 20 years, we can do the same to the next generation, unless.. Oh, I see. You figure that we will abolish patents during this generation (like ASAP) before the next generation comes around into their inventive years.
>> a bright and shining utopia for the future.
That’s great! My faith in you has been restored.
Down with patents. Down with patents. Down with patents. Down with patents. Save the children. Save the children. Save the children….
>> If it isn’t a copy or modified just a little how is it that it does the same thing?
They are currently accepting students for algebra classes at a local college. Are you interested in the details?
You will learn how there are many expressions in mathematics which represent the same points of fact within any given framework.
Oh, wait, maybe that was a rhetorical question. If it was, I guess others that know less about software might still find value in the reply. [No harm done, then.]
>> The invention is often in providing software that adapts a machine to provide a particular function that no thought to have it do before.
That’s right, very broad concepts that tie the hands of a great many people in a great many ways for a great long time. Beautiful.
Oh, and stop saying other people have not thought of it before. The patent office does not ask.
The patent office has a broken standard for accepting applications. It grants 20 year monopoly rights to the first mediocre copycat that walks in the door with an application that meets the very low bar.
>> Face it. If you see a word processor for the first time and say hey, I can write one of those too, you are copying the invention of the word processor, even if every line of code is original.
Yes, so even if I have great ideas on improving that broad class of products, much as Beethoven did with music or Einstein did with physical theories, I will have had that right taken away from me by USPTO and a greedy pig.
I have a question. Are you purposely trying to make it easy for the audience to see the greediness and stupidity in our patent system?
“I can write a programme to produce all possible software programmes.”
So do it. Get a grant from EFF and Open Source and Red Hat and Jose and publish or patent every program and offer a free license to everyone. Problem solved.
No need to file multiple patents. I can write a patent application for software that generates all possible actions of a computer. It is a finite mathematical process to do that given a number of clock cycles and bits input and output. The numbers are large so the process would be slow but it would still be “innovative” in the eyes of many.
Again, i was unable to post a second posting…even after waiting 20 minutes, it still said I tried to post withing 15 seconds and refused to accept my posting.
“I can envisage every permutation of bits that a PC is able to perform and every combination of inputs that is possible to control the process.”
Simply envisaging that out of all possible random combinations of bits can be found all possible programs is not sufficient to get a patent for each of those programs.
A patent application has to explain how to make and USE the invention so that one of ordinary skill in the art to make and use the invention without undue experimentation.
“I can write a patent application for software that generates all possible actions of a computer. ”
You might be able to get a patent for this one technique (although I’ve seen it proposed on Groklaw quite some time ago, and so, you may not be the inventor and it may have been public knowledge too long). However, patenting the technique for generating software does not also patent the software so generated.
As indicated above, a patent application has to explain how to make and USE the claimed subject matter. Since you have no idea what the software, you propose generating will do, you clearly can’t explain how to use it. Therefore, you can’t get a valid patent for that software.
If you actually generate some code and figure out how to use it, THEN you might be able to get a patent for it….assuming you don’t randomly generate Windows ’95 or some other known software.
Sifting through billions of bit combinations for usable code would constitute undue experimentation.
I don’t want a patent for every programme. I want a licence fee for every instance of every programme because my invention will do everything those will and I did it first.
Manual:
See? I have it all covered. My application does everything so there is no software left to invent, no drivers to write, and no need for programmers at all. This application will save huge bucks so I deserve about $100 per PC for the next 20 years.
If you don’t have a patent, then someone can write their own code to do that and they don’t need to pay you a license fee.
“Yes, so even if I have great ideas on improving that broad class of products, much as Beethoven did with music or Einstein did with physical theories, I will have had that right taken away from me by USPTO and a greedy pig.”
What right? The right to have ideas? Patents don’t effect your right to have ideas.
Do you mean the right to patent the improvement? Again, you would be wrong. You can get a patent for your improvements. If they are truly great then you can probably negotiate a cross license agreement where you get the right to make the basic product and the other party gets the right to use your improvement. Alternative, you can negotiate a license agreement to get the right to make the basic product and add your improvements to it.
>> Do you mean the right to patent the improvement? Again, you would be wrong.
From my layperson’s understanding, I know I can do this, but the law still puts control in the hands of the base invention patent owner. This means this person has much more leverage and can deny me or raise my costs significantly.
The right for me to create wonderful works unimpeded is removed. Any rights I might be left with (if any) fall into the hands of someone else.
Einstein and Beethoven and many other great contributors could have been denied entirely (or stifled arbitrarily) in their prime years if patent law had applied in their circumstances.
And adding patents tomorrow to cover any new areas can take a very few brushstrokes by legislators (at least until stricken down by the courts many years later).
[Les, if I come across as aggressive, it's because I consider patents a major insult (with injury) on human decency. It's an arrogant concept. It stifles, potentially extremely significantly. It biases in favor of wealthy and greedy. It takes a huge cumulative amount of rights from virtually everyone to stuff a single duck with super powers (as backed by the US gov). Even if the holder (exploiting the patent power) was very smart, it would be an insult and damaging. That many holders are not at all the smartest in some area, means more dirt is rubbed into everyone's faces. These things mean life and death to many in a very real sense because of applicability to drugs and genes.]
Jose, you are mistaken.
Most drugs would not exist if there were no patent protection for the investments made in their discovery. So, patents save lives.
It typically costs hundreds of millions to bring a concept to the drug market especially with governmental approval requirements. Many drugs cost $10 per dose and billions of doses may be prescribed in a year. Depending on how frequently a drug is prescribed, break-even can be achieved in a year or so. Then why is a 20 year patent period required? In principal, drugs could be produced as trade secrets. Reverse-engineering is not that simple that competition could get things right and test/get approval within a few years.
One successful drug needs to pay for scores or even hundreds of failures.
And reverse engineering a pill in your hand is far easier than trying to find a chemical that works in the first place.
Do you guys just make up everything you say?
The government can and does help promote innovation through various means. The government can subsidize costly clinical tests once a drug reaches a hopeful status as documented by other research and small scale testing on animals. They can levy taxes whose proceeds go to reward various groups (eg, see this proposal http://markproffitt.com/2010/04/20/details-of-abundance-based-intellectual-property-system/ ). The government provides a baseline for documenting proven drugs. This would serve as marketing for the better drugs (but the gov should continue to restrict “tonics” that can be sold to the public) and as an endorsement of the most successful researchers.
The generics industry, through competition, already succeeds in managing large capital costs (which are nonrecurring) and operational costs.
Many groups in the private sector already contribute important R&D, and without the patent monopolies, many more of the top researchers would contribute their work under this more open format so that a larger percentage of research would be leveraged. Also, the less successful researchers would have to pick up a “side job” where they would contribute more efficiently to society (they could not rely on the tide of huge industry monopoly profits to lift all boats).
Many of the advances of the late 20th century (and ongoing) in education, collaboration, computing power, etc, have led to gains in these related industries, but the gains have been inefficient with so many monopoly barriers having been erected.
Also, to improve our system, we have to recognize that we are a world economy. If there are too many loopholes in laws around the world, then we will continue to have some degree of “might makes right” triumph, as the stronger players will crush competition and also lead to many people being born and consuming resources but not being able to contribute positively. This presents problems for everyone that tries to play fairly. Better laws around the world would help remove lots of inefficiencies and destruction of assets. [Note that it's better for world governments to collaborate to pass various types of laws rather than let large corporations and other wealthy groups manipulate the system to get governments to fight each other trying to cater to their dollars. The way our US 50 states and their citizens gain from collaboration applies the world round.]
There is news that GLAXO is going to “open” its research into anti-malaria products so the world can cooperate in the FLOSS manner.