Rage against the patent machine, but is anybody listening?

Rage against the patent machine, but is anybody listening?

Summary: Triggered by Sun's granting of access to 1600 patents -- but only if the resulting implementations are licensed under the recently Sun-authored, Open Source Initiative (OSI)-approved Community Development and Distribution License (CDDL, pronounced "cuddle") -- the squeakiest of the anti-patent wheels are letting their disappointment be known.

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TOPICS: Patents
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Triggered by Sun's granting of access to 1600 patents -- but only if the resulting implementations are licensed under the recently Sun-authored, Open Source Initiative (OSI)-approved Community Development and Distribution License (CDDL, pronounced "cuddle") -- the squeakiest of the anti-patent wheels are letting their disappointment be known. Last week, the Public Patent Foundation's executive director Dan Ravicher wrote an open letter to Sun CEO Scott McNealy asking for answers to "serious questions."

This week, the equally outspoken director of software in the public interest Bruce Perens as well as Free Software Foundation president Richard Stallman have each penned treatises that summarize the recent grants made by both IBM and Sun, and that explore the dangers lurking at the intersection of patents and software.

Said Perens in his commentary: "At least the Europeans get to have a debate. In the United States, software and business method patenting is the result of two court decisions. And Americans have yet to get started on legislation to solve the problem."

In characterizing the risks to the largest known surface of potential legal exposure (developers and users of customized software that's used by only one or a handful of entities), Stallman said in his article, "The danger of software patents is not limited to free software, which is why the opposition to software patents is not limited to free software developers. Everyone involved with computers, aside from the megacorporations, must expect to lose. For instance, proprietary software developers are much more likely to be the victims of patents than to have a chance to use patents for aggression. Although I don't think proprietary software is ethically legitimate, it is a fact that developers of proprietary software are in the same danger from patents, and many of them know it."

Out of my discussions with thought leaders Ravicher and long-time OSI general counsel Larry Rosen, there is little doubt that the patent system is broken. But those same thought leaders are also in agreement that it's not as simple as wiping out software patents altogether. They acknowledge that developers who make enormous personal and financial sacrifices -- only to emerge out of a bunker two or three years later with masterpieces that everybody wants -- are probably entitled to some sort of protection that makes their sacrifices worthwhile. Between the protection that should be afforded to that "inventor" and the American patent system as it stands today (as it applies to software and business methods) is a giant gray area for which no detailed correction proposal exists. In other words, not only aren't the answers easy, no one has stepped forward with the obvious answer.

Even worse, while the debate over patents on software has yet to conclude in other parts of the world, nobody who is empowered to reform the way patents are applied to software in the United States is paying attention. The last time anybody officially contemplated the issues was in 2002, when a parade of experts on the subject of software patents, such as the World Wide Web Consortium's Danny Weitzner, testified before the Department of Justice and the Federal Trade Commission on the matter. Since then, according to Ravicher, there have been relevant proposals by organizations such as the FTC and the National Acadamy of Sciences on how to deal with broader patent system malaises such as discerning between willful and non-willful infringements and what to do about both, but nothing that's specific to patents on software or the concerns expressed by advocates of open source such as Stallman and Perens.

Said Ravicher in a phone call today, "In terms of activity, there's nothing documented, but I've heard rumors of mumblings on the issue by some judges in the federal circuit court system and that some people at the United States Patent and Trademark Office (USPTO) are talking about it."

Ravicher's note about the federal court system wasn't just a throw away comment. "A lot of people want to blame the USPTO for the situation we're in, and that blame is misguided. The USPTO once had a much more conservative view of what matter was eligible for patents. But after some software developers who were denied patents took their cases to court and won, the USPTO's hands were tied. The court essentially ordered an expansion on the sort of subject matter that could be patented. The USPTO doesn't have the right to reject what the court tells it to do." Ravicher told me that because of the court's involvement, whatever the fix is, that fix doesn't necessarily have to be mandated by Congress. It can just as easily come from the court that's empowered to undo what it has done.

But the bottom line is that the patent system is what it is. Today, software developers-- including IBM, Sun, and Microsoft-- answer to their shareholders before they answer to anybody else and, to put it bluntly, the patent system remains a legal avenue for maintaining or improving shareholder value. As long as there's no official discussion taking place, we should have no illusions of patent holders going beyond some of the nice gestures we have so far seen (gestures that came with no risk to shareholder value, by the way) and fully abandoning their software patent portfolios any time soon. It would be the equivalent of expecting drivers on the German autobahn to start obeying some fictitious speed limit. Yeah, right.

Topic: Patents

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  • Good Points

    The issue of software patents ISN'T as simple as the partisans make it out to be. There are advantages to patents, as you noted, given that it provides breathing room for small companies to grow into larger companies. As I noted in a past article, IBM, current hero of open source, got its start due to protections afforded by a patent related to a method for tabulating statistical data.

    I would also add the incentives created to properly promote and educate people how to use the technology. That applied to RSA Technologies for their patents on the standard algorithms used in public key cryptography (now lapsed). RSA was instrumental in popularizing public key cryptography, something they had an incentive to do given they earned more revenue from it. The protection principle also applied to RSA Technologies. One could argue that they got their start because of the breathing room afforded by a patent on something that ANYBODY could copy in short order. They survived the end of patent protection BECAUSE they were a large enough company to survive on their own.

    On the other hand, there are costs to patents, at least the current patent system, given that it creates a tangle of invisible ropes constraining ANY kind of software development (not just open source, though proprietary software at least has the option to license patented technology).

    Perhaps the right answer is to do away with software patents entirely. I've certainly argued that in the past. But that might be a bit like chopping off hands to prevent people from stealing candy from the grocery store. Hands serve other purposes, as do patents.

    Is there a middle ground in this debate? Given the polarized nature of the battle between open source and proprietary interests, are we even capable of looking in the right direction?
    John Carroll
    • Trying to reform patents will just complicate things

      [I] Perhaps the right answer is to do away with software patents entirely. I've certainly argued that in the past. But that might be a bit like chopping off hands to prevent people from stealing candy from the grocery store. Hands serve other purposes, as do patents.

      Is there a middle ground in this debate? Given the polarized nature of the battle between open source and proprietary interests, are we even capable of looking in the right direction?[/I]

      What would the middle ground look like? The problem is that if you try to restrict the number of patents based on the judgment of individuals, you open a can of legal worms. People would constantly be going to court to resolve issues, such what is an obvious programming technique, and what is not. This is what happens when you make a system ill defined or complicated. Therefore instead of monies being invested to drive innovation, a significant amount of it will be diverted towards litigation. Also, many small companies and consultants would never be able remain the software development game, due to these new exorbitant costs. Therefore while your points about the advantages of companies forming around patented technology is noteworthy, the disadvantages of patents mount and overwhelm the advantages, as soon as patents become adopted on a wide scale.
      P. Douglas
    • software patents are irrelevant, the broken patent system is the problem

      It needs to change right now.
      Patents are useful for advancing civilisation,
      however ONLY if they do no allow trivial patents,
      and the PTO must check for prior art.
      In the absence of either check, they retard our
      technological development, and are therefore
      highly dangerous. The survival of our species
      could depend on technology not being held back at
      all.
      Frankly, I think no patent system at all would be
      better than the current system. Technology would
      move faster.
      If I was in charge, I'd instantly put in far more
      checks for prior art, and eliminate trivial
      patents. Then the patent archive would be
      processed and trivial patents eliminated, in a
      public process.

      Remember, our technology has so often being tied
      to our survival historically when talking about
      the budget for the PTO. You don't even need to
      fund technology as government, just get the
      patent system so it maximises development.
      Unfortunately, at the moment, tech corporations
      are wasting profits on pointless legal battles
      and employing guys to watch out for other folks
      patent landmines. What a waste. Could be our
      undoing.
      hipparchus2001
      • Unconstitutional is the real issue here.

        hiparchus2001 is correct in that this could be our undoing as species. Software is just where the problem has made its bloody teeth painfully obvious. The founders of our nation new how important this realm of our existance is and made it clear that "Progress" was to be the defining issue. Our Legal system on legeslative and Court system have both failed to enforce this Constiutional Directive and chose to support "Reaping of Profits for Corporations" instead.

        Just think of what will happen if we missed some brilliant persons idea yesterday that would solve our energy crisis because of all the patents the Oil industy has withheld in the past. One idea is sparked by another and the chain goes on, remove a link and this chain ends there.

        Our Supreme Court can easily determine the current system Unconstitutional. I believe that if our forfathers directives are met, thatis putting "Progress" first and restricting those rights to the individual then things might work out.

        I usually don't agree with what No_Ax_to_Grind has to say but I think his "system" is at least Constitutional.
        Progress_z
  • The only way to improve software patents is to eliminate them

    [I]But those same thought leaders are also in agreement that it's not as simple as just wiping out software patents altogether. They acknowledge that developers who make enourmous personal and financial sacrafices only to emerge out of a bunker two or three years later with masterpieces that everybody wants are probably entitled to spme sort of protection that makes their sacrafices worthwhile.[/I]

    Isn?t the above what happened in the software industry over the last few decades? Why is it that all of a sudden, things are unfair? If U2 goes away and works hard on album, why is it insufficient for it to receive copyright protection? Why does U2 need patent protection on its music as well? If someone or a team works on something truly innovative, why is copyright protection no longer adequate for its work? The fact of the matter is that though the concept of patent protection for software may sound appealing, the reality of its implementation can only be a nightmare. No society can patent IP and survive! Why? Because ideas used in IP by definition build on one another, and patenting ideas is the same as placing taxes on them, and when you do that, things will eventually reach the point, where it will become too expensive to use IP to conduct business. Further, the number of ideas used in IP is not the same as the number of ideas used in the manufacture of most physical items. It is orders of magnitude larger. Also, the breadth of impact of patenting IP ideas is off the scale when compared to the manufacture of physical items. E.g. a moderate sized program with tens or hundreds of thousands of lines of code, contains implementations of thousands and thousands of ideas. If even a small portion of those ideas were patented (with the patents enforced) most companies would have no choice but to drop what they are doing and close up shop. Most manufactured items on the other hand use orders of magnitude less ideas related to manufacturing processes, a portion of which are patented. This is one of the reasons patent works for physical items. (By comparison, the number of processes that can be patented is just not that great.) Also, patents used e.g. in the manufacture of drugs affect only a relatively small number of pharmaceutical companies. An important reason why the number of pharmaceutical companies number is so low, is because the capital required to start a drug company is so high - due in part to patents. With software, patents would affect a far, far wider range of individuals and business (orders of magnitude larger), and its impact would cause a dramatic decrease in software companies and consultants, as a result of much increased cost.

    Therefore the software industry needs to ask itself, does it want to try and use a system that is ill suited for IP, given the orders of magnitude more ideas which may be patented in IP, and the scale of impact it would have on developers?

    [I]As long as there's no official discussion taking place, we should have no illusions of patent holders going beyond some of the nice gestures we have so far seen (gestures that came with no risk to shareholder value, by the way) and fully abandoning their software patent portfolios any time soon. It would be the equivalent of expecting drivers on the German autobahn to start obeying some fictitious speed limit. Yeah, right.[/I]

    What you say is true as far as expecting large software businesses to lobby Congress about something that is not in their interest to do. However, software patents have the potential to adversely affect small and medium sized software companies, consultants, and companies of various sizes (many of them large) that do in house programming. If OSS leaders rallied all but the largest software companies in this country, I?m fairly certain they would get a lot of support, especially if they pitched software patents as negatively affecting small business and jobs.
    P. Douglas
  • A better alternative

    A better alternative for software...

    I want to say up front there is no such thing as a perfect system, you simply can NOT please all the people all the time. With that in mind two things must happen if we are to solve the current software patent system. The first thing is to throw out any and all comments and complaints from zealots on both sides of the issue. The folks on one end claiming everything in the world should be free, as well as the folks on the other end claiming nothing should ever be free. Once that is done the other 90% of the world can get on with the business of a reasonable compromise, and folks I am here to tell you compromise is the only workable solution.

    Next, we need to define the goals of any system put in place:

    As many have pointed out, the goal of the patent system was to provide incentive (meaning financial reward) to develop new ideas for the betterment of all mankind. Both side's of the argument need to read that statement again! No where does it say one side gets everything they want nor can they ignore the needs of the opposing view. The everything for free crowd must grow up and understand businessmen work with dollars, not warm and cozy feel goods, and the business side needs to understand they can't own an idea forever and the greater knowledge of the human race is critical. For these reasons I will state the two following mandates of the system I am proposing as the goals.

    Goal. Develop a system that provides protection from IP theft/use/pirating or whatever word you like. (Financial return on investment.)

    Goal. Limit the protection provided with assurances new technology is quickly and openly disseminated to the human race.

    My proposal:

    Create a completely new system for software that reflects the needs of both the market and the nature of software. I propose what I term as a "Software Holding". (Feel free to find a better name, but this one will work for now.) What is a "software holding"? In many respects it is a good deal like a patent in that it is designed to provide a central repository of IP property and register it, ensure that the IP holder is rewarded for their work and investment through licensing, AND to disseminate the IP/innovation to the general public.

    How does it differ from the current software patent system? In does so in many ways. The first being that it presents a clear line between business and personal use, second it REQUIRES that any holding be licensesable using RAND pricing, and it REQUIRES the IP owner to take action upon instance of violation.

    Let's take the first one, business vs. personal use. In my proposal anyone, including open source, may use the registered holding. If is done for personal use, or use in an educational setting, there is no cost for the license or even a need to seek a license. However, any code using the "software holding" MUST clearly say so during installation and appropriate recognition given to it's owner/author. For business use, and that includes ANYTHING generating income, a business license must be purchased. If you are a consultant recommending/installing software, you buy the license. If you are a company buying/installing it on your own systems, you buy a license. If you are a open source distro, you buy a license. In simple terms, if you are making a buck using it, you owe the owner his fee. (Give unto Cesar what is Cesar's...)

    Secondly is RAND pricing. This removes the possibility of playing favorites. If IBM sells a licenses to Novell for $50, then that is what they must sell it to everyone at.

    And finally, the owner of the holding MUST take action if he/she has any reason to suspect infringement. In other words, it puts an end to the "submarine patent" situation where a patent holder allows his patented idea to become widely used by the industry and then starts filing law suits on everyone and anyone. (Eolas comes to mind.) If after a set period of time passes (say two years) and the holding owner does nothing to protect his holding, they can not bring a law suit against anyone for using it. (Effectively working much like copyright or trademarks.)

    We must also consider duration of a software holding. Due to the fact that software (IT in general) moves so quickly a shorter duration should be put into place. Personally I would like to see it placed at 7 years. That is not an arbitrary length, rather it comes from my observations on how long software retains it's sales value and it's supported life. Very few software products are supported longer than seven years as a sales vehicle. (There may still be tech support on installed platforms but no new sales.) This amount of time should more than meet the needs of the business trying to recover their investment. At the end of the seven years, the "holding" is turned over to the public domain.

    While this system may not be perfect, it does accomplish the goals set forward. Small companies or independent developers are completely free to innovate upon existing "holdings", it is ONLY when they decide to sell it do they have to be concerned with obtaining a license. Open source distro's would work under the same rules, they can innovate until the cows come home, but owe nothing until they place it for sale. It also serves the business side of the equation in that it does offer protection for a limited amount of time to recoup investments and even make a profit. But more than that, it also provides a method to get their technology into the hands of the consumer. (Imagine if MS Passport had been licensable under such a system. I would dare say it would have had a much better chance of success.)

    Now comes the hard part, putting some teeth into the enforcement side of it. Let's face it, there are people on all sides of the argument that would try to cheat the system and for those few a severe penalty system must be put into place. One severe enough to give even the most hard core cheat reason to stop and consider their actions. I'd like to see a fine/settlement system put in place that does not require years in court. A simple hearing panel made up of knowledgeable people could easily determine if a holding has been violated or if the terms have been violated. Along with it I'd like to see a minimum fine/settlement put into place. For arguments sake say $10,000 for a single offence and an adder for every violation of the same holding. But even more importantly, is a public humiliation of the person caught cheating. Let's say the organization running the "software holding" system had a web site (making searching easier) where they would list the people/companies found to have violating someone's holding for a preset amount of time. (Say a year.) I know that if I were going to be working with someone or a company, I would certainly take a few minutes to see if they have been cheaters or straight shooters. (A person that cheats has no morals and they will cheat a customer too.)

    So why should everyone accept this compromise? On the part of the open source folks, it grants them the freedom and space to be innovative and to experiment, or even just to learn about something. On the part of the business person, it does protect their investment when used in a commercial (money making) way and assures them a return on their investment if the idea is a good one. In other words, the primary needs of both sides are met.

    Now, do I expect companies with large software patent portfolios to jump at this? Hard to say, but if it is the only game in town (abolish software patents) then they really have little choice. Also consider that these large companies are not immune to patent suits and would want to end them. It's either accept the protection and conditions of the software holding system, or have no protection at all. Will all the open source people jump at it? Again it's hard to say, but if it's the only game in town they too would have little choice.

    Oh yeah, who pays for all of this? I would want the people applying for a software holding to pay a fee up front, AND contribute part of the income from the licensing. (Say 5% - 10% ?) In fact I would like to see them be the ones issuing the licenses. (Keeps everyone honest.)

    As I said, it's not perfect and so I invite everyone to add to or modify the idea. I do NOT have a patent on it....;-)
    No_Ax_to_Grind
    • Interesting Idea

      A couple of things.

      "We must also consider duration of a software holding. Due to the fact that software (IT in general) moves so quickly a shorter duration should be put into place. Personally I would like to see it placed at 7 years."

      I would shorten this duration. 7 years is adequate to give the owner of a "Software Holding" a nearly insurmountable monopoly in the market. I would shorten the duration to 2 - 4 years. While 7 is this time a piece of SW can be (often is) sold, 2 - 4 is usually adequate to establish stable market presence and brand recognition giving the holder reasonable compensation for the product.

      I would also add the provission that SW Holdings must be applied for by the "inventor," which could be a business or an individual, and are non-transferable.

      The way this would work is that IBM could commission a project to develop a new File System, for example, they may have 200 developers and architects working on it. No single person could be listed as the owner of a project of that scope, but a single person could develope a new kind of application for automatically walking the dog. That individual could then be just as protected as IBM.

      Making them non-transferable does two things. First, companies cannot be formed that serve no function in society other than to buy up IP and see who they can sue. Second, it keeps companies from buying up competitors and shelving their IP just to quash competition. If a company is sold and desolved, their IP reverts to the community.
      Mack DaNife
    • This is a great start, Axey.

      I like the idea of no cost "for personal use, or use in an educational setting," and I would like to add no cost for use "in a charity setting." Two problems I see would be:

      (1) If the fee paid up front for the software holding would be too much for an individual, school or charity to bear.

      (2) How do we prevent some outfits from backdooring the IP of a software holding? For example: I set up a "school" which is really a front for a black market of software holdings belonging to someone else. I "give" the software to others for $5 a disk (for shipping and handling, of course), when the real owner of the IP charges $25 a disk for it. My customers "promise" me they're ONLY going to use it for THEIR school.

      The problem with number (1) above is if we make the cost of getting a software holding too expensive, it will play into the hands of the big companies ("Ya gotta be really RICH in order to be charitable!"); if we make the cost too cheap it will sabotage the value of the software holding. Perhaps the organization set up to oversee the whole holding process could have a fund set aside to accomodate special charitable/educational types of holdings?

      The problem with number (2) is that when a software holding owner discovers this "school" with it's "giving" program and "promises," this poor owner is back in the court system with it's requirements for proof that it's NOT a "school", nor "giving," and uses worthless "promises." Perhaps, if the charitable or educational entity would be required to be on an approved list by the aforementioned holding overseeing group, this problem would be addressed?

      I don't know, am I creating a monster bureaucracy of this overseeing group? What do you think?
      Judas I.
    • A few questions...

      I'm confused by this statement:

      "In my proposal anyone, including open source, may use the registered holding. If is done for personal use, or use in an educational setting, there is no cost for the license or even a need to seek a license."

      How does this work with the DMCA? Are private folk free to reverse engineer IP (a.k.a "holdings"), create a free product and post it on the Internet? How does this affect the consumer software market? Isn't every use of a piece of consumer softawre for "privat" or "edcational" purposes?

      Regarding pricing, why does this have to change?

      Regarding the enforcement, I'm not sure it's wise to short-circuit the judicial process. I will grant you that the wheels turn much too slowly and that deep pockets can almost idenfinitely stall the process until the other side is forced to settle but I'm not sure that the words swift and justice are completely compatible.
      robradina9
    • Wrinkles

      Well done for giving it some serious thought, your idea would be a major leap forward from the terrible situation we have now. I particularly liked the idea of mandated licensing using RAND (reasonable and non-discriminatory) pricing.

      That said, I am still struggling with why we need something other than copyright for software. Are Bill Gates and Larry Ellison so badly off, because they could only get copyright protection?

      Some immediate feedback:
      I have to agree with another post - 7 years is too long. However, it is only too long if the same rules for defining software (what is patentable) remain unchanged. You don't say much about this, but it seems to me that this is actually one of the main problems.

      Patents for inventions have been around for a long time, and have proven that giving a limited monopoly goes a long way to rewarding inventors. Whether that equates to fostering innovation is much less clear - and I, for one, cannot see a link - but let that pass.

      The difficulty with software is that the rules we have for patents now mean that one innovative software idea can be used to block access to other software solutions (even those generated in isolation) from other innovators because a patent on a process is too broad. Your mandatory license scheme would help to relieve some of that pain - but it does not go far enough, and innovation as a whole would continue to be hamstrung. Software is only rarely so innovative that it can be described as a completely new way of doing something. Of course, this is a standard test for patents as they exist - and many of the new software patents may, ultimately, not stand up in court for that very reason. Again, let's move on.

      What is needed is a way to describe; What is a software invention? Sounds easy, until you try to come up with an answer that is as flexible and easy to apply as patents are to hardware. I'm not working on it, it's too tough for me.

      Your RAND idea is good but, ultimately, the big companies will still end up in court challenging the Arbitrator's decisions on whether a RAND price is (a) enforceable [are my rights being infringed to set prices for my own assets] and (b) reasonable [my idea is bigger than his idea, so should demand a bigger price, etc.]. You need to describe some tests for mesuring what is reasonable.

      RAND was also, as you probably know, at the center of the W3C debate over licensing in the early noughties. Most people rejected it then - from a standards perspective. Your new software rights scheme skirts round the standards issue, and you need to address that.

      Note, that is not a plea for your scheme to be better aligned to the OS community. Actually, I think you've covered most of their needs already - as they would be well served by your scheme so long as we don't take up your offer to allow "people applying for a software holding to pay a fee up front, AND contribute part of the income from the licensing". The OS community would only need one good financial contribution - and we would have a real bust-up on our hands as they license their IP under GNU cluttering up the system with applications but generating no income for the scheme! The commercial organisations would be outraged. Again part of this problem goes back to definition, and part to property rights conventions.

      It needs more work, but it's a start.
      Stephen Wheeler
  • Logic vs. Innovation

    As an IT and business consultant, I have seen both sides of the patent issue. On a number of occasions, I have been retained by companies attempting to enforce their patent positions, and I have helped to develope software for which a patent is pending.

    The major issues I see in the software patent arena are:
    1) The patent protection period is far too long, and
    2) Patents are being issued for nothing more than a logical business process that any professional would develop given the need and opportunity.

    A company or individual that has spent a significant amount of time and money to develop an innovative solution to a problem deserves the right to profit from that solution for a reasonable period of time, but many of today's software patents are issued simply because someone took the time to document a logical solution to a specific problem, and persevered through the patent process. In many cases, it is the investors that want or even demand that a fledgling company has either been issued a patent or have a patent pending before they are willing to invest. Whether these patents hold any true value is never researched, only the fact that the patent could give value to an otherwise common business.

    Once that patent has been issued and there is some money behind it, the cost of defending an infringement suit can easily drive a competing company out of business. A large company will spare no expense to defend its patents, driving many small companies to either desist or go out of business.

    Perhaps the most anachronistic aspect of a software patent is the patent life. In an industry where technology changes occur monthly, a patent that lasts 17 or 20 years makes no sense. It would be far more logical and allow more innovation if the patent period were shortened for software to a period of not more that 5 years. This would allow a company to recoup its investment, but would also allow development based on these patented processes to flourish after a reasonable period. An individual or company that has an opportunity to enhance a patented method will most likely be inhibited from developing such a solution if they are going to be subject to royalty payments for a period that is forever in the software business.

    Having done considerable research into a number of patents, I am amazed at the depth of knowledge and experience consistently shown by the patent examiners. These individuals have examined thousands of applications and have a thorough understanding of innovation, but are powerless to reject a process if it has been successfully argued that no other entity has done this before. The general principle of a patententable method is that it would not be obvious to a person having ordinary skill in the art. Here is where I believe that the flaw exists. In the cases I have seen, the "person having ordinary skill in the art" is someone who has relatively little experience, perhaps 1 or 2 years in IT, but we all know that there are tens of thousands of people in IT and software development with many years of experience and a high degree of problem solving skills. Given the same set of circumstances, many of these people would come up with the same solutions for which a patent has been requested. It does not make any sense to grant a patent to an individual or group of individuals that have done nothing more than solve a problem in the same way that one of many others would have done. A patent should be issued only where there is truly an innovation that is not simply a progression of logic. It is not hard to find examples, such as the "one click" ordering from Amazon. There is nothing innovative about that, but once the company has convinced the patent examiner that no one else has ever done that (whether true or not), and has the financial clout to enforce it, there is now a barrier to innovation that enhances the purchasers experience. From what I have seen, the patent examiners have the skills and knowledge to discern between innovation and simple logic in their examination of a patent.

    The normal response to any patent submission is a rejection. The process of working through the various issues is not simple or fast, but in many cases simply requires refining and rewording the application so that the objections of the patent examiner are eliminated. Sometimes this simply requires adding some obscure functionality that makes this application different from some others, and not necessarily makes the solution any more viable.

    While I agree that the courts have tied the hands of the patent office, I also believe that the application of a simple test to any process would weed out those applications that have no innovation, but are simply the first to describe and pay for the processing of a logical solution that would have been applied by any other professional. Raising the bar of the person having ordinary skills in the art would go a long way in resolving the patent maelstrom.


    The two proposals that would quickly produce more
    wtg9
  • Compromise refinements

    Many patents have been issued based on throwing the words computer and technology at a 200 year old business process..truly innovative, think not.

    If a software company or individual has not recouped their development costs with 2 to 3 years, they are unlikely to do so...someone else needs to take the ball and run with it. Full throttle competition brings out the best in code and ideas.
    rodle9
  • reality check, anyone?

    Interesting proposal (Software Holdings), but it makes far too many assumptions about what the author hopes could be accomplished under our presnt legal system as opposed to WHAT ACTUALLY HAPPENS MOST OF THE TIME.

    What actually happens is that the true innovator (a person) or the small company with a clever new product gets shafted because the game is always played out in court with lawyers that charge hundreds of dollars per hour. Unless and until the small player can defend his/her idea quickly, on the merits, and without paying ransome for access to the legal system, there is no real prospect of improvement. Why bother chasing alternatives that will most likely result in nothing better than what is in place already? Especially if lawyers remain in control of the situation.

    As was so aptly said in another post: "A large company will spare no expense to defend its patents, driving many small companies to either desist or go out of business." Unless a patent system immune to the wealth of the opposing parties can be devised, "justice" will remain as it has been so often characterized: the best that money can buy.
    dmennie