July 27, 2007
Every practicing programmer should read the Wikipedia article on software patents, if you haven't already.
Many software companies are of the opinion that copyrights and trade secrets provide adequate protection against unauthorized copying of their innovations. Companies such as Oracle Corporation and Red Hat are therefore generally opposed to the patenting of software.
Nonetheless, these companies do file and receive patents. Since their competitors get patents, they must get patents as well for defensive purposes. In the event that they get sued for patent infringement by a competitor they can counter-sue using their own patent portfolio. The net result is that both companies often cross license each others' patents at little or no out-of-pocket expense for either party. However, the cost of developing a suitable portfolio of patents may be out of reach of many small software companies.
If this sounds like a classic Mutually Assured Destruction arms race, that's because it is.
There was a hullabaloo recently about Microsoft rattling their software patent sabers. Sadly, there's nothing notable about it; this is simply business as usual for everyone in the software industry. Software companies are forced to build huge stockpiles of software patents solely to be used as deterrents.
Many notable computer scientists, including Donald Knuth, believe that software is fundamentally unpatentable:
Congress wisely decided long ago that mathematical things cannot be patented. Surely nobody could apply mathematics if it were necessary to pay a license fee whenever the theorem of Pythagoras is employed. The basic algorithmic ideas that people are now rushing to patent are so fundamental, the result threatens to be like what would happen if we allowed authors to have patents on individual words and concepts. Novelists or journalists would be unable to write stories unless their publishers had permission from the owners of the words. Algorithms are exactly as basic to software as words are to writers, because they are the fundamental building blocks needed to make interesting products. What would happen if individual lawyers could patent their methods of defense, or if Supreme Court justices could patent their precedents?
I tend to agree with Knuth that software isn't an industry that should be patentable. The fashion industry, for example, has no concept of patent protection, and thrives regardless:
The fashion world understands that creativity is a collaborative and community affair. It's far too big, robust, and evolving for any one player to "own" as a legal entitlement. Long lineages of couturiers from Balenciaga to Ungaro, Chanel to Lagerfield, and Gucci to Tom Ford have shown that designers necessarily must learn, adopt, and adapt from those who have blazed previous trails. If one were to deconstruct their work, an evolutionary chain of distinct themes, references, design nuances, and outright appropriations could be discerned.
Occasionally someone may protest a "rip-off" and get murmurs of sympathy. And the counterfeiting of brand-name products is rightly condemned as theft. However, in general, creative derivation is an accepted premise of fashion. Indeed, the industry's growth and prosperity have been built upon the famous maxim of Isaac Newton, "If I have seen further, it is by standing on the shoulders of giants."
Is it possible that the fashion industry, long patronized as a realm of the ephemeral and insubstantial, is the real bellwether for future ideas of "ownership" of creative content?
You can't patent recipes, and yet both professional chefs and restaurants are still in business and prospering:
Food relies so much on execution, or at the national chain level on marketing, that the mere circulation of a recipe does not much diminish the competitive advantage of the creative chef. Try buying a fancy cookbook by a celebrity chef and see how well the food turns out. Most chefs view their cookbooks as augmenting the value of the "restaurant experience" they provide, not diminishing it. Furthermore, industry norms, and the work of food critics, give innovating chefs the proper reputational credit. It is not worth the litigation and vagueness of standards that recipe patents would involve.
Of course, the software patent debate is neverending. But patents are especially dangerous and deserving of intense debate, because they're so powerful:
Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.
Think about that for a minute. Seriously think about it. Every time you write code – even a brand new algorithm in a clean room environment – you could be infringing a patent, somehow, somewhere. That's why it's so often described as a software patent minefield:
Today's computer industry standards increasingly include technology that may be covered by a software patent. The owner of that patent has the right to demand a royalty from all parties that implement the patented principle, or may discriminate regarding who will and will not be allowed to license the patent. It is often the case that there is no way to implement a standard without making use of a particular patented principle. This effectively gives the patent holder absolute control regarding who will implement a standard containing his patented principle.
Such patents arise in two ways: they are knowingly embedded in the standard as it is being created, or they are submarine patents, unknowingly part of the standard until they "surface" after the standard is already in wide use. A pernicious patent holder can engage in patent farming: influencing a standards organization to use a particular principle covered by a patent. In the worst and most deceptive form of patent farming, the patent holder encourages the standards organization to make use of a principle without revealing the existence of a patent covering that principle. Then, later on, the patent holder demands royalties from all implementers of the standard.
It's probably not fair to say that software patents are 100% evil. But from what I've read, I'd say they're 99 and 44/100ths percent evil. I'm not sure what any of us can do about this, but it's clear that the current situation is untenable:
Something has to be done, or else we truly are staring down a coming software patent apocalypse.
Posted by Jeff Atwood
So to keep with the nuclear/cold war analogy, if the incumbents are like the USA and USSR, what does that make the patent trolls? Terrorists? Al Qaeda? Seriously...
I agree that something has to be done, but what?
Fight and win a major landmark case in the Supreme Court to make all software patents unforceable in court? This isn't barely likely, just look at this page: http://en.wikipedia.org/wiki/List_of_software_patents and the number of successful litigations.
Revoke all existing software patents and disallow new software patents? Just continue coding and pray that your product won't grow so big as to attract the sharks?
There's plenty of talk on who's for, and against software patents, who's participating and who's not - but there seems to be very little discussion on actual methods of solving this problem in the long run, and how people who are creating software right now can do about the problem.
Or have I missed out on the discussion?
i'd be more extreme: find a way to break all RSA codes, patent it, and then blackmail the government to break all patents or else sell it to terrorrists.
One huge problem with the patent mess is that many major research universities have developed revenue systems based on patent licensing and are now actively lobbying against patent reform. There was recently a bill in Congress that was trying to correct a lot of problems with the current system, but after the UCs and Stanfords complained it was turned into a meaningless band-aid. It's really disgusting that institutions were the advancement of knowledge is the alleged main objective are acting to chill innovation for their own benefit.
Are there any non-profits directly involved in patent reform? I looked into this a while ago and couldn't find anything. This sounds like something the EFF could be involved in but they seem more interested in defeating meaningless TSA directives than on problems as large and menacing as this.
Could it be because cooking and fashion are considered creative activities (like painting) and writing software isn't? If software is perceived like engineering, then it's normal that people try to patent it and that patents are granted.
Or it could be also that fashion and cooking are so ephemeral (a dress lasts a season, a dish lasts until you've eaten it) that patenting would be essentially worthless...
Patent of software in Australia is not permitted - you can copyright specific code but not own software ideas. Software in Australia is treated with identical rules as literature! You can't copy it word for word, but can base a NEW piece on the ideas of an original.
Thats how it should be! Allow others to expand on new ideas, rather than squash them.
I can kind of see Sebastiano's point but at the same time, the way that a program is put together is a creative effort as much as it is anengineering effort, and that while a dress may be in fashion for a season it will last longer than that unless otherwise destroyed. At the same time the a recipe can be used over to make the same dish time and again.
The real point is with the way that software gets outdated just like the hardware does is there really any difference between software, clothing, and a recipe book?
No body makes software alone. We communicate, we help each other on forums, blogs, etc.
Imagine if you were helping someone with something he's working on, and find out that you can't use it because he patented it, it makes you think, what will the future be like, will people be afraid to tell their ideas fearing they could lose them instead of sharing them.
If that happens, Programming won't be easy to learn, and certainly not fun anymore.
I would dare to say we have no other area of law where there are such strong implications (the government enforcement of a broad, largely undefined monopoly) on the basis of such weak justification. It's possible that patents will lead to greater innovation, so patents are the law of the land. A lot of other things are *possible* but that doesn't mean they are the law.
Wouldn't it make sense to at least study the issue in depth a little bit? Shouldn't there be a little better justification than giving simplistic examples where it is possible for patents to make us better off?
May be we need a Patent Reduction Treaty :)
(I am not in favour of patents myself, it's better to have no system than a bad system, but here is a possible counter-argument)
There are examples of innovation the may not have happened without patents. Take the all ubiquitousness mp3 format. Would Fraunhofer have spent millions developing it if there is no way for pay back? Spend all this money and do all this hard work to have someone else reimplement the algorithm and give it away for free ("lame").
What is the answer to this? Enforced RAND licensing? Then what about F/OSS software? How do we support expensive research and innovation?
Go a href="http://www.fourmilab.ch/autofile/www/chapter2_105.html"PATO/a, the idea is older than ten years and still not implemented. Clearly, companies registering software patents are hypocritical when they claim to do it for defense purposes only, lest a PATO would exist by now.
Insightful article as usual Jeff.
Don't know about the situation in the US, but here in the UK we have the additional absurdity of copyright law, devised to protect written works, also applied directly to software. I was recently involved in a legal case where there was much effort expended working out how much of a particular database schema was copied into a server's memory - a measurement both conceptually vague and (virtually) impossible to determine in practice - but nevertheless the required means to gauge the extent of infringement.
Id the USA's software patent madness continues I can see all software development moving to countries that do not have software patents, like ... Oh yes, everywhere else!, This will still make it a little difficult to sell software in the USA but "The rest of the World" is a rather large market and the USA can be ignored.
Say goodbye to innovation in the US software industry....
I have been saying for years I believe it is impossible for ANY non-trivial software to be developed without infringing on someone's patent, somewhere. It is indeed mutually assured destruction.
Wait until you notice someone has a patent on parts of your DNA.
And software patents aren't restricted to the US. While software patents don't officially exist, 'computer-implemented inventions' can be patented, and the german and european patent offices even grant patents that are quite possibly in contradiction to the 'no software patents' policy.
There's an error in your article. You said:
"There was a hullabaloo recently about Microsoft rattling their software patent sabers. Sadly, there's nothing notable about it; this is simply business as usual for everyone in the software industry. Software companies are forced to build huge stockpiles of software patents solely to be used as deterrents."
Rattling sabers is an offensive move, not a defensive one.
Bill Gates quote:
"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors."
"There are examples of innovation the may not have happened without patents. Take the all ubiquitousness mp3 format."
Which isn't even that good of a format. OGGs have superior compression in most cases and is open source. Think of how many songs you could fit on your ipod if OGG had become the dominant file format, instead of mp3, when you consider the songs are 2/3 the size.
I'm not even sure that copyright for software is a good idea, or at least not for the amount of time written/performance/etc art is. Look at Windows 3.11. When it finally enters public domain, who is going to care? I doubt anyone is going to have the hardware to run it by the time that happens.
Allow Software-Patents without any great constritions, but limit their lifetime to 5 years in the normal case, with up to 10 years for extraordinarily patents (like mpeg or other more complicated inventions).
5 years would be enough to have an first-mover-advantage, but on the other hand, 5 years are over fast.
I could live easily with such short software-patent-periods.
I think the crux of the matter is that software patents inhibit creativity. All arguments for them seem to be focused on revenue, and maintaining current forms and standards of business.
I think best case scenario (never going to happen) would indeed be to retract all software patents, and no longer grant new ones. If cares if some companies would go bust (as some CEOs seem to claim); adapt or be eaten.
originally, patent was invented to allow the inventor to receive money for his idea because there's a cost to invent = research cost
just because research cost to justify patent is high, just a few big companies (even the government, but mostly huge companies) are those ones that can spend money researching
so patents are not only about the concept of freedom to share ideas and knowledge, but about killing or not the chicken that lays the golden eggs
I think that some aspects of software should be patentable, under one of two conditions - a user interface (design patent) or a hardware/software system. Software by itself should not be patentable, IMO.
The core problem is the patent office is giving out protection when there is no true innovation. Create a better sort routine and I can see giving you protection. But allowing a patent on an idea that has been in use for decades is stupid!
Good post Jeff. It will be even worse if they create a "first filed first served" rule which they're currently discussing.
Well, there are a couple of efforts to combat this trend:
I don't know how much impact they are having, but if all of the individual developers had a simple, low-cost way to patent anything they were working on and contribute it to an organization that licenses it for free to open source and non-commercial projects, then over time it would build it's own war chest of patents that could be used to challenge any other company's portfolio.
If you can't beat 'em, join 'em (and then beat 'em).
So what do you feel is the ultimate solution to this, Jeff?
A crazy idea that might solve the problem (if it works): an automated system for generating prior art. If it works, it would be a sort of a "denial of service" attack on the patent system.
A patent is only valid if the invention has not been previously described to the public ("prior art"). If a description of an invention has been published before the date claimed by the patent, the patent becomes worthless.
What if an automated system were to create (and publish over the web) such a huge amount of "prior art" that only really really good inventions would not exist in that database? The algorithms could be "designed" randomly. They could be random changes to known algorithms. It doesn't even matter if most of them don't really work or do anything useful, as long as some of the randomly generated "inventions" would deny patentability of other inventions.
I agree with toettoe. Allow patents, but give them a short lifespan. This would give people a chance to recover research costs and have time to make money of there products before competition arrives.
The other advantage of this scheme is that it would force more innovation and advancement of current products. If you patent expires every 5 years, you would have to keep making your product better or someone could come along and make a better product from the same concept.
Hopefully the situation will work itself. In any new field there are always big players trying to monopolize the money that pours in. Software is an amazing technology where the building blocks are practically free, so there are naturally going to be huge battles fought between the masses and the few old retainers who feel that they should be the only ones to profit. Legislation will catch up. Unfortunately the US government moves at about 1/1000 of the speed of the software industry.
Wouldn't it be funny if as a result of the prevalence of software patents, companies had to stop selling software for profit for fear of being sued?
It that happened, the only way a company that sold products that required software to work could operate would be to fund open source projects. So if you make a digital camcorder, for example, and you are afraid of being sued for software patent infringement, you could make it very easy (by publishing full specs, say) for outsiders to write the software that ran on your camcorder. Then, when someone bought the camcorder in a store, it would come with no software. The user would take it home, plug it into their network, download the camcorder platform of their choice on it, and then be ready to use it.
I think the current software patent situation is much more threatening to proprietary software companies than to companies that make money indirectly from open source.
Perhaps software patents aren't such a bad thing after all!
The net result is that both companies often cross license each others' patents at little or no out-of-pocket expense for either party.
And a big pay check for the lawyers.
Do while true
echo "Patents = bad, copyrights = good"
How about the following:
the patent (and govt in general) moves slowly
The industry moves quickly
Either make software patents last only 3 years, in which case there would be little reason for getting one, or just remove the software patents altogether by a law.
Besides, how is the patent office supposed to know whether a software patent has no prior art or not? Who has such a uge amount of information on software ideas to date?
I think software patents will end up sparking more innovation than they stifle. Companies are moving away from litigation and into cross-licensing and cooperation; it's better for everyone. Valuable as IP is, we could see a global economy where the chief currency is pure human ingenuity. But the fact is that a patent is simply a grant offered by the state, not a right, and nobody should be bothered by lawsuits. Public policy should address this to foster the IP market by taking it out of the hands of lawyers.
Jeff, all well and good. But how do you address the issue of some guy in a garage who spends a year building a website app to feed his family, and then 1 month after he releases it some weasel clones it by bank rolling some cheap offshore labor?
I'm not saying that a patent is the right way to protect the guy, but do you have any answers?
Quoting ronp001: "What if an automated system were to create (and publish over the web) such a huge amount of "prior art" that only really really good inventions would not exist in that database?"
This actually is an excellent idea. On the one hand, it would starkly highlight the absurdity of patenting software. On the other, while this absurd situation exists, it would provide protection for us little guys who do, indeed, exercise a great deal of creativity -- or, at least, problem-solving -- when we write code.
Patents, in their current form, will not change. The problem is you have enormous industries competing for completely different goals in Patents. Software rightfully should NOT even be in this mess at all. Besides having contract law on their side (EULA?) they also have copyright (a crime unto itself) as you cannot copy the disks -- the binaries are considered a creative work? and now you have patents.
The pharma industry, evil that it is, is an enormous player and has a huge stake in maintaining the status quo. Software and their patents have a huge interest in changing the status quo. So, you have two mega-giant industries tugging on patent law with opposing needs.
There are only 2 solutions as I see it: 1) Explicitly dissolve software as patentable. After all, it isn't actually law, just something a judge decided to allow years ago. or 2) Split the patent law into categories: Tangible patents, non-tangible (for example). This would allow the competiting parties to march forward to their own beat.
The downside to this is exactly what's wrong with copyright. With no other party competing against your interests you get run-away legislation. That is in fact what copyright is. I mean, Def Leopard doesn't try to stop copyright extension to block Guns-n-roses. There is no competition in this space. Long ago copyrights were allowed for 14 years + 1 14 year extension. Now they are life of author + 75
Makes sense to me, maybe this will spur in the concept of "better" software, rather than simply "innovative" software...
I think the first post nailed it-- software patents should be eliminated (and all prior ones revoked), but I don't know that there's much we can do about it. Well, any of us reading this that aren't in charge of a multi billion dollar corporation.
"But how do you address the issue of some guy in a garage who spends a year building a website app to feed his family, and then 1 month after he releases it some weasel clones it by bank rolling some cheap offshore labor?"
By eliminating software patents. That guy builds his app, which threatens some new feature Amazon's doing. Amazon sues him, and then Ebay does for good measure. Meanwhile, he can't afford to pursue litigation against the local clones, much less the entirely out of country clones that have an entirely different legal framework-- unless his lawyers are going to fly out to Russia on contingency.
Eventually he signs over all rights over what he's developed to Amazon, whose own site (with some cool new "innovations") takes off several months later along with a massive marketing blitz. The clones die off, unsupported and ignored.
Patenting software is like patenting a "story" written by a novelist. It is a much better job for copyrights than patents.
After all, once you have patented the Turing Machine, haven't you patented all computers and programs? It's the computational equivalent of patenting the wheel.
Of course, patent infringement is strong and vigorous and court supported. But suing someone for copyright infringement is almost always ignored by the courts or competitors are slapped on the wrists for pirating copyrighted material. If the courts would reverse that behavior, companies may be more open to reverting to copyright based intellectual property.
Or, as another poster mentioned, perhaps I can come up with an algorithm that will generate patents for every method of converting a given bitstream into a different bitstream. Then all your patents will belong to us!
Whatever happened to that guy who patented "if xx 30 then year = 2000 + xx else year = 1900 + xx"?
What's sad is that's rarely the actual software developer that's big on getting a patent. The really good developers often would much rather be coding than getting together patent paperwork and in fact most developers thrive on the sharing of ideas and examples.
Suing is rarely worth it, often it's a huge resource expenditure and in the end you create more bad will than good, thus damaging the single thing that can really give you an edge over similar products, your reputation. Any company that's using litigation to hold onto their market position instead of innovation or quality is one that no longer cares about making a quality product.
I'd hate to be working at Microsoft right now as a developer since you can't look at open-source code for the fear that you'll absorb something covered by the GPL and thus force the software to suddenly be free. It's of wide opinion that they'll never be able to create a 100% compliant Ruby language in IronRuby simply because they're not allowed to look at other implementations. It really is a stand-off and it's getting scary.
Personally if I release source into the wild I like to do it under a "No Rights, No Responsibility, No Patent" licence, meaning I give up all my rights to said code thus you can use it freely yet I take no responsibility for how it's used, the only limitation being no one else can patent said code.
Nice article, but you didn't even mention the biggest problem with software patents today - patent trolls. These are companies whose sole purpose for existing is to buy up software patents from software companies going defunct, or just needing to clean house. They then look for someone infringing, and sock them with a law suit - as much as they can get. In a community where big name companies like IBM, HP, and Sun Microsystems only apply for patents for defensive purposes, patent trolls make out like bandits - they have no software, so they can't be counter-sued.
I think titling this "The Software Cold War" would have been better suited in my opinion. The building up of patents and daring the other to use theirs against you and you will use yours back at them.
Are US patents enforceable in Europe or anywhere else in the world?
If not then just ignore them and boycott US as far as possible.
It should be noted that the US Supreme Court refused to address whether or not software was patentable during the Microsoft Corp v. ATT case earlier this year:
"We need not address whether software in the abstract, or any other intangible, can ever be a component under 271(f). If an intangible method or process, for instance, qualifies as a #8220;patented invention#8221; under 271(f) (a question as to which we express no opinion), the combinable components of that invention might be intangible as well. The invention before us, however, ATT#8217;s speech-processing computer, is a tangible thing."
(You can find a copy of the ruling on Groklaw: http://www.groklaw.net/article.php?story=20070430121005424 )
"Are there any non-profits directly involved in patent reform?"
The Pirate Party. http://en.wikipedia.org/wiki/Pirate_Party
Wikipedia: "The Pirate Party (Swedish: Piratpartiet) is a political party in Sweden. The party strives to reform laws regarding intellectual property, including copyright, patent and the protection of design."
"i'd be more extreme: find a way to break all RSA codes, patent it, and then blackmail the government to break all patents or else sell it to terrorrists."
The new form of terrorism: "Do it or we'll give the foobar to the terrorists."
greed... OR, what did Jesus say? The love of money is the root of all evil. Notice not the money itself, just the love of it.
That's whats driving this insanity that they call software patenting and, the biggest offenders; the ones that already have boatloads of money. Why? Because fundumentally they are all run by very greedy people.
As others have said the REAL problem is that the patent office is giving out patents for blatantly obvious ideas or ideas that have been done for years. The patent office simply needs to slow down and sotp awarding trivial patents.
The naysayers who want to just disolve all patents for their own personal reasons will say that this isn't practical. Hogwash! It is not only practical, but much more practical than trying to continue at their current pace. So what if they get 10,000 patent applications and only approve 10 per year? What will happen is that people will suddenly learn that it is nonsense to keep submitting lousy patents and the problem will fix itself.
It's not that ALL software patents are bad. It's that the idea must be TRULY remarkable or else it shouldn't get awarded a patent at all. Anything else is just nonsense from special interest groups trying to save their butts.
"This effectively gives the patent holder absolute control regarding who will implement a standard containing his patented principle."
One solution is to not, except in exceptional cases, grant absolute control. That's a key part of some of the ideas I have about patents. The other idea is to have governments or conglomerates aquire patents as a group and release them to the public domain. Of course that's alot easier if the buyout cost is limited and not subject to blackmail licensing.
Read more at: http://ryan-technorabble.blogspot.com/search/label/patents
Are Software Patent Self-Exams Realistic?
There are many reasons a software company might wish to avoid checking existing patents for infringement:
1. There are too many patents to effectively search them all.
2. Patents are complicated and opaque and hence difficult to determine infringement.
3. Researching patents can actually open a company to additional liability and damages.
4. Microsoft doesn't do it.
iAre US patents enforceable in Europe or anywhere else in the world?
If not then just ignore them and boycott US as far as possible.
bob on July 31, 2007 03:21 AM /i
That means everyone other then the USA will stop suing Microsoft Windows. I don't see that happening even though it would be interesting. =)
I'm happy that software is still not patentable over here in Europe. It's just a stupidity, causing billions of customer money spent on defending patents - money that could be used elsewhere. Patents kill innovation and especially the small companies. Probably neither innovation, nor small companies are welcomed in the US.
As a practicing patent attorney and an opponent of patent law on principled (property rights) grounds (see my publications at http://www.stephankinsella.com/publications.php#IP ), it is my view that the opposition to "software patents" is simply confused. A software patent is nothing more than a patent on a process, which is a standard type of patent. If you are in support of a patent system, you have no principled ground on which to oppose software patents.
Not only software patents, but any kind of patents are harmful, unjustified and an unprecedented attack on liberty. The only function of a patent is to grant monopoly rights, and the government is the one who grant this monopoly right. There is no such thing as an ownership right granted to the first finder of a non-scarce item. And any knowledge when finally find becomes non-scarce because anyone can have it without injuring anyones right. Ownership over scarce items is the only "natural" or spontaneous ownership. Ownership over non-scarce items have no sense, knowledge is not a means of production, it is like air, the fire don't need to own the air in order to stay alive, any company can produce any product without owning any knowledge, patents are noting but a brake on progress and a way of making monopolies.
Of course, you can and should extend your logic to condemn ALL patents.
Suggest readers go to www.mises.org and search on patents for lots of arguments on why patents are never a good idea.
"The fashion industry, for example, has no concept of patent protection, and.."
He he, wat a claim! In the fashion industry, the sue you for every little "look a like" thing. Why hassle with patents?
I can only agree. And not with just one view, but all of them. Software... ideas, even, are such complex things that you all may be right, and wrong, at the same time.
The Chinese don't recognize patent laws at all. They have copied many of the world's finest cars and intend mass producing them as soon as possible, for sale even here in the US. They may solve the patent problems as far as software is concerned as soon as they find out they can make a dollar at it. Microsoft, hide your ass, Ubuntu, hide behind a tree, the Chinese are coming! the Chinese are coming!
All opposition to patents comes from people who aren't creative and think only work that pays regular wages is legitimate.
Such people are closer to beasts than gods and $8/hr is all they're worth.
The innovators are the ones who, at great personal risk, drive the rest of the human race forward. Society's rewards for such people should know no limit.
Look at societies that neither recognize nor reward innovation. Their citizens have all ended up being nothing more than bio-industrial production units.
If the only rationale for justifying software patents is that any process can be patented, I claim dibs on Newton's method for square roots!
A famous case of patent farming, BTW, is when LZW was published in a computer magazine without revealing that it is patent pending. Eventually Sperry Research got the patent, then were bought by Unisys, which then began suing software vendors. Some of the file formats affected by this are the Unix compress format and the GIF format.
This is nonsense, software patents are the only thing keeping all small to midsized businesses in the software industry from being eaten alive by parties like Microsoft and Google.
Professional programming is different from writing code from your attic as a hobby, it entails a lot of costs, and having your prizewinning breakthrough snatched out of your hands by a multinational conglomerate will make it pointless to ever try.
Perhaps, instead of winning a case in the highest courts that shows software patenting is wrong, we should try to win a patent case on a fundamental building block (ie for-loop or access modifiers) then charge for licenses. The entire industry will fall over and the law will be forced to drop software patents to get civilization back on track.
Absurd enough to work? :)
A very good post and excellent follow-up comments!
I agree with the arms-race analogy and the fact that when a typical giant company patents software it is not generally a benign move to protect their IP.
The sad part of it all is that a patent application is now more of a battle of legalese than an honest attempt to register a piece of innovative software. The outcome of an IP litigation, which earns several IP troll companies their bread, is often ridiculous.
Everyone has the right to earn money, to recover their research costs, to let the world know what they invented; but given that the ethics of it have not been set in stone, the game has turned really ugly and the companies have turned into greedy Hutts.
"but limit their lifetime to 5 years in the normal case, with up to 10 years for extraordinarily patents (like mpeg or other more complicated inventions)."
I agree - this sounds like a really good short-term solution. And you'd have to make sure new patents at a later date can't be applied back on something like MPEG - and software patents won't be given/ can be revoked if it can be shown that those ideas where already present in circulation at an earlier date.
Software patents will kill off the small guys