Encourage the USPTO to stop issuing software patents; deadline September 27(fsf.org)
fsf.org
Encourage the USPTO to stop issuing software patents; deadline September 27
http://www.fsf.org/news/uspto-bilski-guidance
34 comments
Sent mine:
I would encourage you to reduce or eliminate the use of "Software Patents".
I am a talented computer programmer, of the sort whom one might expect would be the beneficiary of such patents. Instead, they are a disincentive for me to do any work in the field. I do not believe it is possible to release any significant piece of software in this country without exposing myself to undue legal liability through patent infringement.
This is not because my ideas are not original, but because too many unduly broad patents patents have already been issued. If properly challenged, many of these patents would fall due to obviousness or evidence of prior art. But lacking the resources to mount such a defense, I simply avoid making creations that would otherwise be of benefit to society.
I do not believe this is the intended effect of patents. I and the country would benefit from a better law.
I would encourage you to reduce or eliminate the use of "Software Patents".
I am a talented computer programmer, of the sort whom one might expect would be the beneficiary of such patents. Instead, they are a disincentive for me to do any work in the field. I do not believe it is possible to release any significant piece of software in this country without exposing myself to undue legal liability through patent infringement.
This is not because my ideas are not original, but because too many unduly broad patents patents have already been issued. If properly challenged, many of these patents would fall due to obviousness or evidence of prior art. But lacking the resources to mount such a defense, I simply avoid making creations that would otherwise be of benefit to society.
I do not believe this is the intended effect of patents. I and the country would benefit from a better law.
>this process will be overseen by David Kappos, the current director of the USPTO and formerly an attorney at IBM in charge of their heavy-handed patent strategy.
Looks like the deck is already stacked. Are there any companies or elected officials with significant political/financial capital aggressively campaigning for this? This movement needs a champion to make this topic relevant to bureacrats and I don't know if Stallman's the guy.
Looks like the deck is already stacked. Are there any companies or elected officials with significant political/financial capital aggressively campaigning for this? This movement needs a champion to make this topic relevant to bureacrats and I don't know if Stallman's the guy.
How are software patents different than non-software patents? It seems to me we should encourage the USPTO to stop issuing silly patents, software or otherwise. Or we should resist all patents. But, if a patent system is a worthwhile thing for a society to have, then software patents are as legitimate as any other.
The output of the process (a working machine) is provably equivalent. So you (and pg in one of his essays) conclude that the patent rules should be equivalent.
However, the purpose of patents is to promote progress by motivating people to invent. So what matters is the input to the process, i.e. the human activity that eventually leads to a working machine.
The patent system was designed for human activities that involve so much time and effort that people might not do them without an additional incentive, i.e. temporary monopoly. Picture 18th-century mechanical engineering. Building several different designs of a machine to see which works best would be a monumental task. It would be much easier to search the patent database and find something someone else invented, and cheaper to license it from them.
Imagine for a moment what would happen if you gave everyone a machine such that you could simply drop a diagram of a mechanical invention into it, and out the other end comes a working implementation. That would totally change the game. Invention would require much less effort. Everyone would be doing it without consulting the patent database, and the huge influx of inventors would overwhelm the patent office, making it impossible to find which inventions in the flood of incoming applications are novel and nonobvious.
This is what happened with software. Millions of people have these magic machines on their desks and in their backpacks and briefcases. No patent incentive is needed, just as none is needed for mathematics.
However, the purpose of patents is to promote progress by motivating people to invent. So what matters is the input to the process, i.e. the human activity that eventually leads to a working machine.
The patent system was designed for human activities that involve so much time and effort that people might not do them without an additional incentive, i.e. temporary monopoly. Picture 18th-century mechanical engineering. Building several different designs of a machine to see which works best would be a monumental task. It would be much easier to search the patent database and find something someone else invented, and cheaper to license it from them.
Imagine for a moment what would happen if you gave everyone a machine such that you could simply drop a diagram of a mechanical invention into it, and out the other end comes a working implementation. That would totally change the game. Invention would require much less effort. Everyone would be doing it without consulting the patent database, and the huge influx of inventors would overwhelm the patent office, making it impossible to find which inventions in the flood of incoming applications are novel and nonobvious.
This is what happened with software. Millions of people have these magic machines on their desks and in their backpacks and briefcases. No patent incentive is needed, just as none is needed for mathematics.
Patents only cover certain types of creative behavior for which patent protection makes sense as a way to encourage innovation. For example, it's never been possible to patent the plot of a novel, and up until recently it wasn't possible to patent an abstract business process or method.
The argument, then, is that patents on software are A) unnecessary to encourage innovation and B) actively discourage innovation. The argument for A) is that plenty of software development happened prior to it being patentable, few software developers or startups consider patentability when creating new products, software itself is well covered by trade secret and copyright protection, and the patents themselves contribute basically nothing to the world's store of knowledge about software. The argument for B) is that most software patent suits are complete BS and are launched either by trolls or in an anti-competitive manner rather than as a result of any sort of actual "theft," any piece of software could potentially infringe on hundreds of patents, patents themselves tend to cover "inventions" that anyone else solving a similar problem would come up with, and that patents themselves thus tend to either discourage people from even trying new ventures, out of fear of being sued, or serve to drain resources from companies that actually produce products, tying up resources that could actually be used for innovation. It's also worth noting that the 17/20 year term of a software patent is completely out of whack with the pace of innovation in software.
So you can try to split hairs around saying that some software patents (say those around non-obvious compression schemes) are legitimate, but I'd guess that something close to 99.95% of software patents are trivial/silly/should never have been granted, so in this case I'd argue that's totally worth throwing out that 0.05% of "good" patents in order to ensure that we get rid of the other 99.95% of them. I'd rather see that happen than try to defend that 0.05% and end up keeping even 5% of the current amount of BS patents.
The argument, then, is that patents on software are A) unnecessary to encourage innovation and B) actively discourage innovation. The argument for A) is that plenty of software development happened prior to it being patentable, few software developers or startups consider patentability when creating new products, software itself is well covered by trade secret and copyright protection, and the patents themselves contribute basically nothing to the world's store of knowledge about software. The argument for B) is that most software patent suits are complete BS and are launched either by trolls or in an anti-competitive manner rather than as a result of any sort of actual "theft," any piece of software could potentially infringe on hundreds of patents, patents themselves tend to cover "inventions" that anyone else solving a similar problem would come up with, and that patents themselves thus tend to either discourage people from even trying new ventures, out of fear of being sued, or serve to drain resources from companies that actually produce products, tying up resources that could actually be used for innovation. It's also worth noting that the 17/20 year term of a software patent is completely out of whack with the pace of innovation in software.
So you can try to split hairs around saying that some software patents (say those around non-obvious compression schemes) are legitimate, but I'd guess that something close to 99.95% of software patents are trivial/silly/should never have been granted, so in this case I'd argue that's totally worth throwing out that 0.05% of "good" patents in order to ensure that we get rid of the other 99.95% of them. I'd rather see that happen than try to defend that 0.05% and end up keeping even 5% of the current amount of BS patents.
Patents are meant to spur innovation and thereby improve social welfare. Just because this may work in certain industries, doesn't mean that it automatically works in other industries. There's a lot of evidence that the costs of software patents to society are higher than their benefits.
It may work, but it doesn't mean it does work. You may remember James Watt's steam engine monopoly slowing down the industrial revolution in Britain.
Everybody believed that it does work without actually examining the evidence for the other industries.
Everybody believed that it does work without actually examining the evidence for the other industries.
> There's a lot of evidence that the costs of software patents to society are higher than their benefits
Where is that evidence? The US seems to be innovating quite a bit in the software area compared to other countries.
Where is that evidence? The US seems to be innovating quite a bit in the software area compared to other countries.
How often have you heard or read about a piece of software that someone developed only because it could be protected by a software patent, about a software innovation that would have been too costly to develop if it couldn't be protected by patents?
And on the other hand, how often have you heard or read about programmers and companies worrying about unknowingly infringing on software patents, about companies getting sued by other companies that turn whole fields of software into minefields, or about developers or companies that couldn't (afford to) implement the best known algorithm for an application, because someone else had been granted a monopoly on using that algorithm.
And on the other hand, how often have you heard or read about programmers and companies worrying about unknowingly infringing on software patents, about companies getting sued by other companies that turn whole fields of software into minefields, or about developers or companies that couldn't (afford to) implement the best known algorithm for an application, because someone else had been granted a monopoly on using that algorithm.
You're just offering indirect evidence, I'm giving you the concrete fact that the US is one of the most innovative software producers.
At least in the US, you can't create a start up and just create a knock-off of an existing product: you are forced to innovate because of software patent laws. This is probably why the US is striving while countries that don't have such laws such as Chine hardly innovate at all.
At least in the US, you can't create a start up and just create a knock-off of an existing product: you are forced to innovate because of software patent laws. This is probably why the US is striving while countries that don't have such laws such as Chine hardly innovate at all.
But where is your direct evidence that software patents have anything to do with the US being "one of the most innovative software producers"?
I'd also argue that it's mainly copyright law and trademarks that prevents the kind of product piracy that is prevalent in certain countries with a less developed legal system, at least with regard to software products.
I'd also argue that it's mainly copyright law and trademarks that prevents the kind of product piracy that is prevalent in certain countries with a less developed legal system, at least with regard to software products.
> But where is your direct evidence that software patents have anything to do with the US being "one of the most innovative software producers"?
That's not what I'm arguing. All I'm saying is that given the fact that US is one of the most innovative countries in the software area, the burden of proof is on those who claim that the software patent system is broken.
That's not what I'm arguing. All I'm saying is that given the fact that US is one of the most innovative countries in the software area, the burden of proof is on those who claim that the software patent system is broken.
You will have to offer evidence that a patentless system works better than the current one. The US seems to be producing a large amount of software innovations while China (which doesn't have software patents) produces more cheap copycats than true innovations.
Note that the USPTO is asking for comments on how it should comply with the Bilski decision, not for rants about software patents in general. Your comments will presumably carry more weight if you can explain why many software patents have more in common with business methods than with machines or transformations.
This looks like a good place to start: http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_d...
This looks like a good place to start: http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_d...
What fallout would this have in terms of existing companies who currently hold patents vs. new companies who have to innovate under a climate where there can't protect their work to the same extent? Wouldn't this create an unfair advantage for companies who already hold software patents?
I'm all for a reversal of the patent stupidity in the software sector, but unless it is retroactive to some extent I can see it scaring away innovators.
I'm all for a reversal of the patent stupidity in the software sector, but unless it is retroactive to some extent I can see it scaring away innovators.
> a climate where there can't protect their work to the same extent?
Nobody is safe against patents, not even Microsoft, IBM, Google or Apple. And patents are only for 15 years so it's not like you'll have to wait 100+ years like with copyright.
Nobody is safe against patents, not even Microsoft, IBM, Google or Apple. And patents are only for 15 years so it's not like you'll have to wait 100+ years like with copyright.
I agree, the current system is flawed too. However, under the "No new software patents" policy, lets say company A has x number of preexisting patents, and a new company wants to get into the field, they can't leverage and of company A's innovations, but company A could use anything company B comes up with however they like. That seems like a dealbreaker for any new company trying to raise capital.
Yes, it would create a temporary advantage for companies already holding patents, but they already have an advantage. And in a relatively short period of time (less than 20 years) most of the patents will have expired and that advantage will go away.
But personally, I don't think it's going to scare away many innovators. As it is, many American software patents do not hold in Europe. Despite this, American companies rarely seem concerned that their 'patent disclosures' will be used against them by their European competitors.
I wager this is because they are not truly innovations of the sort that require protection in order to encourage their creation.
But personally, I don't think it's going to scare away many innovators. As it is, many American software patents do not hold in Europe. Despite this, American companies rarely seem concerned that their 'patent disclosures' will be used against them by their European competitors.
I wager this is because they are not truly innovations of the sort that require protection in order to encourage their creation.
20 years? Go back 20 years and look at the software we had then. 20 years is an eternity. Way too long to put up with the chilling effect this would have on new competition in the market. I'm not saying you don't have a point in the long term, but I think there's got to be some sort of middle ground here that can help insure that startups who want to innovate can confidently tell their investors that they aren't going to end up paying all that money just so Google or MS or whomever can copy them.
> The USPTO can, and should, exclude software from patent eligibility on other legal grounds: because software consists only of mathematics, which is not patentable, and the combination of such software with a general-purpose computer is obvious.
Software does not consist of only mathematics. One might use mathematics as part of understanding how a particular piece of software works, but that is not really different than the way one might use mathematics to understand how an electronic circuit works.
Software does not consist of only mathematics. One might use mathematics as part of understanding how a particular piece of software works, but that is not really different than the way one might use mathematics to understand how an electronic circuit works.
All a computer can do is mathematics * . This is essentially axiomatic: the term "algorithm" is loosely defined as "what a computer can do."
If you think your software is doing anything else, you're looking at an abstraction on top of something mathematical.
* - OK, OK, they can also generate heat, RF, and other byproducts. Those things have little to do with software.
If you think your software is doing anything else, you're looking at an abstraction on top of something mathematical.
* - OK, OK, they can also generate heat, RF, and other byproducts. Those things have little to do with software.
"All a computer can do is mathematics"
All an electrical circuit can do is physics. Therefore, electrical inventions should not be patentable as all they are is physics.
All an electrical circuit can do is physics. Therefore, electrical inventions should not be patentable as all they are is physics.
An electrical circuit does not "do physics." It relies on physics, but it does not "perform physics" in the same way that a computer performs calculations.
This is why software patents are always framed in terms of a machine performing an algorithm. The "machine-performing-an-algorithm" construct is not itself mathematical, though it does rely on mathematics. The FSF's argument there is that having a machine perform an algorithm is now sufficiently obvious to fall under the obviousness restriction (while perhaps it was not so obvious back in the 1950s). This leaves only the algorithm itself, which is mathematical.
This is why software patents are always framed in terms of a machine performing an algorithm. The "machine-performing-an-algorithm" construct is not itself mathematical, though it does rely on mathematics. The FSF's argument there is that having a machine perform an algorithm is now sufficiently obvious to fall under the obviousness restriction (while perhaps it was not so obvious back in the 1950s). This leaves only the algorithm itself, which is mathematical.
Hypothetical #1. I invent a very clever, useful, non-obvious electrical circuit that performs a valuable transformation on input analog signals. Patentable.
Hypothetical #2. I come up with the same idea as in #2 but conceive of it as a series of steps applied to a digitized signal. Each step is done as a little algorithm. It turns out that there is an isomorphism between these algorithmic steps, and what the circuit components in hypothetical #1 do. In other words, I've essentially conceived it as a simulation of a physical circuit.
Why should #2 not be patentable? It is in pretty much all meaningful ways the same invention as in #1. It is just implemented different. In #1, it is implemented by taking (non-patentable) physics building blocks and putting them together in a new, useful, non-obvious way. In #2, it is implemented by taking (non-patentable) algorithmic building blocks and putting them together in a new, useful, non-obvious way.
Conversely, would you argue that anything capable of being simulated via a computer should not be patentable?
Hypothetical #2. I come up with the same idea as in #2 but conceive of it as a series of steps applied to a digitized signal. Each step is done as a little algorithm. It turns out that there is an isomorphism between these algorithmic steps, and what the circuit components in hypothetical #1 do. In other words, I've essentially conceived it as a simulation of a physical circuit.
Why should #2 not be patentable? It is in pretty much all meaningful ways the same invention as in #1. It is just implemented different. In #1, it is implemented by taking (non-patentable) physics building blocks and putting them together in a new, useful, non-obvious way. In #2, it is implemented by taking (non-patentable) algorithmic building blocks and putting them together in a new, useful, non-obvious way.
Conversely, would you argue that anything capable of being simulated via a computer should not be patentable?
I think I see your point. I'll restate it the other way around, though, because that direction makes more sense to me. Please tell me if I got it wrong.
Suppose I have an algorithm for doing some useful transformation on an input. Suppose we were in an environment in which this algorithm could not be patented. I could instead sit on the algorithm and build a circuit in hardware accordingly, patent the circuit, and sell that while keeping the algorithm secret. Ignore that it could be reverse-engineered.
Is that scenario good for anyone? Probably not. It would be better for everyone if the algorithm were made public, even if it were simply unused for the patent term, than if it were to lie hidden on a disk somewhere. Why does it make sense to grant a patent to the circuit, but not the algorithm?
I admit, that situation is a little inconsistent. This is partly because the whole concept of the patent is inconsistent, but we keep it around because we haven't found a consistent way to fulfill the same purpose. Consider a third option, though:
Suppose that the guy with the useful algorithm is Joseph Fourier. He patents the software techniques to produce Fourier series. Now, anyone making software that relies on Fourier series needs to pay Joseph Fourier, which is fine. Anyone who builds a hard circuit would likewise need to pay for the privilege, due to another patent. What about a person executing the exact same software instructions by hand?
Clearly the person may execute the algorithm by hand without paying. Why should they not need to pay, when the only thing the software author has done is the convenient shortcut of using a computer? In order to be similarly consistent, we'd need to require the manual executor to pay. Unfortunately, the manual executor is every collegiate-level math student.
Suppose I have an algorithm for doing some useful transformation on an input. Suppose we were in an environment in which this algorithm could not be patented. I could instead sit on the algorithm and build a circuit in hardware accordingly, patent the circuit, and sell that while keeping the algorithm secret. Ignore that it could be reverse-engineered.
Is that scenario good for anyone? Probably not. It would be better for everyone if the algorithm were made public, even if it were simply unused for the patent term, than if it were to lie hidden on a disk somewhere. Why does it make sense to grant a patent to the circuit, but not the algorithm?
I admit, that situation is a little inconsistent. This is partly because the whole concept of the patent is inconsistent, but we keep it around because we haven't found a consistent way to fulfill the same purpose. Consider a third option, though:
Suppose that the guy with the useful algorithm is Joseph Fourier. He patents the software techniques to produce Fourier series. Now, anyone making software that relies on Fourier series needs to pay Joseph Fourier, which is fine. Anyone who builds a hard circuit would likewise need to pay for the privilege, due to another patent. What about a person executing the exact same software instructions by hand?
Clearly the person may execute the algorithm by hand without paying. Why should they not need to pay, when the only thing the software author has done is the convenient shortcut of using a computer? In order to be similarly consistent, we'd need to require the manual executor to pay. Unfortunately, the manual executor is every collegiate-level math student.
In general, people are not trying to patent entire pieces of software. Indeed, it's difficult to understand how such a large work could reduce to mathematics. Rather, people are trying to patent very specific algorithms and methods that can be used to make a larger piece of software, and it's easier to see that those do reduce to mathematics.
Knuth argued well against patenting that: http://progfree.org/Patents/knuth-to-pto.txt
Knuth argued well against patenting that: http://progfree.org/Patents/knuth-to-pto.txt
Really? You do know what a computer is right? Go check it out: "A programming language is an artificial language designed to express computations that can be performed by a machine" http://en.wikipedia.org/wiki/Programming_language
Crazy isn't it?
Crazy isn't it?
[deleted]
Software can be covered by both copyright and patent; isn't it unique in that regard?
I refuse to believe in imaginary property.
[deleted]
I wrote my own:
I believe software patents have deleterious effects on both an individual and societal level.
As a software developer, my job is to encode symbols within a computer. Simply to represent an idea in the precise medium. Then I manipulate those symbols in whichever way seems logical.
To patent that process, to claim certain methods of writing and thinking are off limits, does not contribute to a free society, no matter how much money it allows an entity to make. Because a computer is only a tool for the mind, as a hammer is an extension of the arm. Patenting patterns of codified thought makes no more sense than patenting swings of the hammer.