We should not be afraid to take (seemingly) radical positions. Fear of offending the status quo is what keeps it in place. Not too long ago the idea of patenting a theorem or a gene was dubious; the moderates may only slow the tide, not push it back.
Option A:
EFF: "Hey, legislators, you should abolish this system that we've had for decades and you don't understand. Let me tell you why the interlocking parts of a software algorithm are totally different from the interlocking parts of a car engine ..."
Patent Trolls: "This is a pie-in-the-sky proposal that would never work in practice and would undercut our economy in the one area where we're seriously dominant! [1]."
Option B:
EFF: "Hey, legislators, our economy depends on software, and patents are screwing it up. Software moves really fast, so we should limit the time a patent lasts to five years. And lots of the things that are getting patented are really obvious, so if something is so obvious that someone else invents it independently, they should be allowed to use it -- that will avoid the need for lawyers to review every single program that gets written. And software projects are often incredibly huge, so we should make it so millions of dollars won't be awarded for a violation that consists of .001% of the project. Can we hold some hearings to talk about this stuff?"
Patent Trolls: "These are pie-in-the-sky proposals that would never work in practice! Hang on while I try to come up with a reason for that."
Option B is 1000 times more likely to get us in the door. And once public hearings start and legislators actually start to have some idea what the issue is, that's our chance to make the case (in the media, through lobbying, and through testimony) that we'd be better off without software patents at all.[2]
[1] "... other than music and pizza delivery, obviously."
[2] If this is true. It's totally possible that, within the boundaries the EFF is proposing -- short-lived, open-source, non-obvious, damage-limited, subject to prior art up to 2007 -- software patents would actually become a force for good, in complex areas like compression, encryption, language processing etc. A game where highly-funded research programs are racing to stay 5 years ahead of open source projects that incorporate all their best ideas could be pretty sweet. It's worth discussing anyway.
Yet, I always see otherwise rational people wanting to just blow the patent system up. What makes you think this is a goal achievable in one step? Why isn't the EFF position a good starting point to get there eventually?
Just because the system sucks really badly doesn't mean you'll be able to change it in one fell swoop. Doing that with healthcare in the US took 20+ years, and we arguably did not end up with a better system, just a bunch of incremental improvements.
People need to acknowledge already that the patent system is not just a little broken, it's fundamentally broken to its very core. You can band-aid it all you want, it won't fix the inherent problem, and that is and always was the paradoxical claim that slowing down progress will somehow lead to more progress, as well as the utterly illogical assertion that you can, in any way, own abstract concepts.
I completely agree with iwwr: don't be afraid to take the "radical" stance for the sake of a twisted form of political correctness. If something is bullshit, then say so, and demand it be stopped. Not weasel around trying to appease the people who profit from the status quo. Patents are bullshit - the only good patent is a nonexistent patent. Period. So demand that we get rid of this impediment to mankind.
While the EFF is prudent, I expect a proper study to yield much bolder results, with the evidence to back them up.
If you want to make progress, the EFF is taking the right tact. If you want to be idealistic (and that's fine I'll emphasize), then stick to your guns and you'll see zero progress, but your ideals will still be intact.
That would require some self deception. Those who have an ideal, and know at the same time that sticking to their guns wouldn't work, shouldn't stick to their guns. Unless of course they only want to signal an ideal, which I concede is easier than actually trying achieve it.
I spent years working for a wireless startup. Our innovation was in the domain of software, but our product was not software--software just drove the product (military radios). The algorithms took years and millions of dollars of research to derive, and we patented them.
I think that business model is valuable, and it's extremely common. The companies that manufacture radios, telephones, networking equipment, etc, don't necessarily have the agility to come up with innovative software, and the small firms that can come up with innovative software don't have the manufacturing capability to go into the end-user product market. Software patents allow them to focus on their core competencies, then engage in mutually beneficial transactions with the assurance that the legal system will keep them from getting ripped off.
So my question is: how would businesses like the above work without software patents?
So there are 2 possibilities here:
1. Your algorithm really requires years and millions of dollars of research to develop, in which case you have little to worry about - your competition is years behind you and probably doesn't have millions of dollars to spend on re-developing the algorithm. Trade secrets will work for you just fine.
2. Someone can quickly and cheaply come up with the same algorithm independently from you, in which case you don't deserve patent protection in the first place.
When it comes to patents, everyone brings the "super hard, expensive to develop" case, which carries the assumption that they're so smart that no other persone on the planet can come up with the same idea.
The reality is that even the patents that survive in courts and reap millions of dollars in damages, are laughably trivial and are a result of routine work of software developers, not to mention the vast number of patents that were granted and then stricken down during litigation, but only after both sides spent hundreds of thousands of dollars on said litigation.
But how do I sell it to someone without opening the code or describing it to them? With trade secrets, I'm forced to go into the business of building military radios (or whatever). What sense does it make for a small shop of wireless technology experts to go into the manufacturing business, learning how to manage supply chains, support end-users, etc?
That's the very problem patents were designed to solve 200+ years ago when they were introduced. To allow a separation of design from manufacturing. To allow the guy who invents the telephone to sell it to someone without going into the business of making telephones.
Think of other property abstractions, like stock. Stock allows separation of the roles of investor and manager. The CEO doesn't have to come up with the capital to buy the company, and the shareholders don't have to figure out how to run it. That's a useful separation of concerns. Patents allow separation of the roles of designer and manufacturer. ARM can focus on designing CPU's and patenting the novel features. They don't have to get into the business of manufacturing all of the different products that might contain their CPU core.
For some types of software, say operating systems, the hard work is writing all the lines of code. No device driver is ground breaking, but all those devices have to have device drivers and someone has to write them. The product you end up selling is those lines of code. Copyright protects those specific lines of code you wrote.
For other types of software, the hard part is figuring out how the software should work. That's where all the research dollars and engineer time gets spent. The actual lines of code are often an afterthought. If someone saw the code, they could easily figure out how it works and write an independent implementation. They can do that because writing the lines of code is the easy part. Copyright only protects the lines of code, so it can't help here. That's where patents come in.
In both cases, the law facilitates a division of labor. Copyright lets one company write an operating system, and sell it to others. Copyright creates and protects the subject matter of that transaction. Patents let one company design an algorithm, and sell it to others. Patent law creates and protects the subject matter of that transaction.
Now, I don't think the law should be concerned with protecting particular business models. However, it should be concerned with facilitating the division of labor. Indeed, that's one of the key purposes of property law. And that's why I think software patents have to exist in some form. Because I think it's good to be able to separate the process of design from the process of implementation, and without being able to protect design you can't do that.
I should point out that ARM is a very good example of this design/implementation separation. What do you think ARM uses to protect its designs?
With that in mind, I completely agree with limiting the term of software patents. In fact, I agree with limiting the terms of patents, generally; not inventions are the same, and technological innovation across various sectors does not progress at the same rate. Pharmaceutical patents, for example, typically aren't enforced until FDA approval occurs (which is sometimes up to 15 years later, giving them only 5 years to recoup the often immense investment in the research leading to the drug!).
The second point is awful: why should someone with a bona fide claim in patent infringement have to pay when the court rules against their favor in something that's an arguable question of law? Claim construction is done by the court; that is, the judge is the one who decides what claims in a patent mean. If the judge's decision goes against what you reasonably believed to be a correct construction of the claims and the defendant then prevails on a motion to dismiss, but you appeal, and the Court of Appeals for the Federal Circuit reverses, but then the defendant appeals and it goes to the Supreme Court, which agrees with the original judge and by dint of their judgment creates new law? Shouldn't both parties have to pay their respective attorneys' fees here? Of course. Oh, you mean cases of vexatious or malicious litigation, which are effectively extortion? Call the bar association of the lawyers involved, and file an ethics complaint. Patent trolls can be kept in line with ethics complaints.
I disagree with 3, because it violates due process unless there are significant changes to the Patent Act. Keep in mind: there's a major difference between sufficiency of disclosure and actually practicing an invention. Patent law has never required an inventor to actually produce or manufacture their invention, because it understands that sometimes, this is impossible. In software cases, what happens if you've imagined a beautifully complex system that's novel and non-obvious, but the software, skills, time, etc. required to bring it to fruition preclude you from doing so for whatever reason? What if you instead wish to license the invention to someone who can produce or manufacture the software? This provision would perpetuate corporate oligopolies by entitling those with the resources to reap the benefits of patent protection. We cannot allow this to happen.
That brings me to independent inventions: I'm on the fence about this. Copyright law has something similar to this, but patent law doesn't, and I'm not really sure why. My only idea is that during the inventive process, you will always be looking to prior art, and a reasonably prudent person would likely discover the patented subject matter during this process. Of course, this doesn't address the concern with an 'ignorant inventor' independently inventing something patented. Here's the issue: issued patents are published, and the public is 'on notice' that this invention is no longer in the public domain. Of course, there are more than 7 million patents, of which maybe 2 million or so are active. While possible, it's just not the best use of someone's time to ensure that they're not infringing on someone else's invention. But it's also unfair to the inventor who took the steps to patent their invention if this 'independent inventor' is allowed to reap the benefits of something taken out of the public domain with notice given. I guess the problem we have is that notice isn't 'effective', and that falls onto the patent office: they need a better categorization system. This is a problem with the executive branch, rather than the legislative or judicial.
Finally, I just want to talk about the sixth point, that someone shouldn't be allowed to collect 'millions' for a 'tiny infringement.' To me, this discredited the entire post, because it unnecessarily muddies the water with regard to liability. Patent infringement does not lead to treble damages (which I guess they fear), but willful patent infringement does. When an inventor sends you a cease and desist letter and you continue to practice the invention knowing that you're infringing, then you're liable for enhanced damages. But, you have to continue practicing the invention in willful disregard to the patent--it's a jury question.
In short, the patent system IS in need of reform to take into account the mutability of technological advancement. However, let's not jump to conclusions and pollute the Patent Act with exceptions to a technology that appears on its face to be an exception; we need to find and eradicate the root cause of the perceived injustices.
The whole idea of a patent is "but for my ingenuity and investment you never could have solved this technological problem. Therefore you must pay me to use my solution."
If it is not the case that nobody could have solved the problem but the patent holder, then the patent is invalid.
If a person NOT falling within this definition were to independently arrive at an invention and could have arrived at the same invention prior to the issuance of that invention's patent, then there's an issue. KSR states: "a person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." It follows that a hyper-creative, one-of-a-kind person who proves that he or she independently arrived at the invention would not be this hypothetical person. Although obvious to a genius in the art, it was non-obvious to a person having ordinary skill in the art. That's where I disagree with your reasoning.
EDIT: This is not to say that the genius in the art should be out-of-luck. He or she should be entitled to continue practicing the invention, but the patent itself shouldn't be invalidated. This should be evaluated on a case-by-case basis and treated as an exception to the general rule.
Now the novelty claim is a somewhat separate issue. I don't have a good solution to this and there is a lot of ambiguity that arrises here.
It seems to me limiting the duration of a patent is the best solution. There is some precedent for this with the adjustment of how time for pharma patents are measured.
I suppose small companies don't even try patenting their "software inventions", they are busy making the product.
Slightly off topic, but there is a general modification of IPR law that I've never seen discussed but that I think could affect some very interesting change: simply require that licenses are available to all on reasonable and equal terms. For every registered patent or copyright there would also be a license template, ready to fill in, with payment details, preferably machine readable...
You could apply that principle to copyright as well as patent rights. The consequence for copyright would be e.g. that large record labels would be forced to license their music to all online services, or not at all. If the government enforces a "monopoly" then why not also enforce an even playing field?
What is this doctrine of equivalents and other established principles? I'd like to know if it is reasonable for software or was developed for other fields and then misapplied to ours.
Also, can anyone point to an example of a small inventor who made a groundbreaking software contribution, patented it, and then profited from that patent as it was applied by big players on a large scale? Since that's the use case that's supposed to justify software patents, it would be interesting to see some examples. Given how many counterexamples there are (basically, all the ones we hear about), it seems likely that this argument is a straw man, or whatever one calls a straw man when somebody's arguing in favor of it rather than against.
I never understood why people think we should try and abolish software patents. We can't. Period. There's too much money in them. We can attempt to reform or reshape them so they are less destructive, but crying for total abolition seems to be akin to attempting to abolish the IRS. It might make sense in a perfect world, but it will never, ever happen.
This is not an argument. I'm pretty sure there was a lot of money in the slave markets as well. Didn't stop the US from abolishing it, though.
The reference implementation in the patent itself would almost certainly be public domain once the patent expired.
The reform we need is just better application of the existing patent rules.
I wonder if a viable legal strategy could be to have the definition of the former extended to the latter in some way.
By offering to reduce the time to five years, they are implicitly supporting the idea of using and defending the patent for those five years. You might legitimately think there's infringement and then the court might find otherwise. Calling anyone who goes to court with a patent a troll seems unnecessary in that case.
"Infringers should avoid liability if they independently arrive at the patented invention."
You don't pay damages, and then what happens? Do you still have to get a license or can you keep going because you invented it on your own? Also: how do you prove you independently arrived at the patented invention? Who's burden is it to prove / disprove it?
Last week I visited the white house as a part of this program -> http://www.businessfwd.org/
The two topics I brought up with the administration were patent reform and immigration reform. Brought up all the obvious issues that play on HN frequently. Today I got a follow up email intro to someone at the USPTO and here's a copy of my reply to that person. I also pointed him to the defendinnovation.org.
Text of my message to USPTO----
The main concern I brought up during the white house visit was around software related patents and frivolous lawsuits by trolls. I'm sure you get this question often from technology and startup folks, but in my opinion it's pretty clear that the USPTO is effectively levying a giant tax on output of my industry due to issuance and complicit enforcement of patents around elementary concepts.
To me the biggest costs to our economy come in the form of -
- fear of patent conflicts prevent new companies from doing truly novel things that would generate jobs and innovation
- costs of licensing patents from trolls or patent groups impede growth of companies at the most delicate nascent stage (e.g. MPEG-LA or Intellectual Ventures)
- settlements out of court with trolls and/or direct costs of litigation to defend (for the bravest large companies who want to take a stand, e.g. google)
- giant piles of money burned litigating frivolous patent disputes between large companies as a proxy for competing directly in the market (oracle vs google)
In general software patents attract the worst elements of the free market. People and companies that take advantage of the system, who extort, abuse and profit from the structural deficiencies of the USPTO. A typical patent troll group will acquire a set of frivolous software patents covering concepts in use in literally any major piece of software so that technically every large company is an infringer. They will then approach a set of large or medium companies with a veiled threat and offer to sell a share of the patent troll entity. They give a choice to their target to get on board or take an ethical stand and if the victim chooses the later, they'll get sued for infringing and likely be forced to settle because truly there is infringement according to the drafting of the patent that was granted. It's the modern mafia.
The root cause of all of these problems are two fold
1 - granting of patents for non-novel and trivial software and concepts
2 - inability to efficiently litigate and have a patent invalidated by demonstrating that it is truly trivial
Google is a major force of good in this fight and the Oracle litigation has shown my industry a great deal of hope on this front. In particular Judge Alsup on that case showed a very keen understanding of the technology in question and how ridiculous the patent was that Oracle litigated with. That story had a happy ending, but honestly in large part because of that one judge. If this were a different court there could have been a vastly different outcome.
http://news.cnet.com/8301-1035_3-57445082-94/judge-william-a...
My question to you is simple - How can we address these root causes?
The current patent system and review system was not designed for software and is clearly failing to adapt to the current environment and pace. USPTO is granting patents at an ever increasing rate. We quite literally are in such a broken state that I would wager that every piece of software being sold today is infringing on some patent. How long until that structure completely halts the development of any innovation at all?
Too big of an issue to ignore. Thanks for listening.
Petition the EFF to Oppose Software Patents -- http://news.ycombinator.com/item?id=4134873
I think it's more of an issue in software because software developers are essentially producing tens of "inventions" a day, every day, any of which are potentially infringing due to poor PTO operation. Whereas in something like chemical engineering a patent might affect maybe a few hundred other well-capitalized firms at a single point in their process, in software for any given app/developer potentially multiple patents are implicated in the course of a normal day's work.
A lot of patent trolls seem to be exploiting "we got here first nya nya" patents. That is, they patent solutions to problems that the market has not deemed significant enough to solve yet (like in app purchasing, before the iphone). When the market does move and encounters these problems, the straightforward solution(s) are developed, and then in swoops the patent troll.
The PTO just needs to become more sensitive to the unique industry that is software development: the high natural rate of invention, the high likelihood for multiple independent similar solutions to problems, the fact that a problem hasn't been solved yet doesnt mean the first submitted solution should nor can be patented, etc.
I think if a patent holder can show "but for my solution, you never would have solved this problem in a reasonably efficient manner" then sure, let's protect his IP. Determining when that condition is true is obviously difficult, but the current PTO strategy of giving the benefit of the doubt to the patent applicant has proven a bad bet.
