More on software patents

More on software patents

Summary: Software patents are still in the news. The European patent directive continues to lumber forward, despite overwhelming opposition from groups on all corners -- excepting the big software companies that will win big if sofware patents become law in Europe as well as the U.

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TOPICS: Patents
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Software patents are still in the news. The European patent directive continues to lumber forward, despite overwhelming opposition from groups on all corners -- excepting the big software companies that will win big if sofware patents become law in Europe as well as the U.S.

Not surprisingly, Richard Stallman has no kind words for software patents. In response to Stallman, fellow ZDNet blogger and Microsoft employee John Carroll, however, does have a few things to say about the benefits of software patents.

He hits on three alleged benefits for software patents, which I'd like to touch on here. The first is boost to small business. Carroll says that software patents can be "the bedrock upon which small companies are founded" and then says "that matters, at least if you think corporations matter."

Thus far, I've seen no small businesses propelled forward thanks to software patents -- unless you count "businesses" that specialize in patent lawsuits. I'll return to the discussion about whether corporations matter in a bit.

Carroll also argues that patents are necessary because of the costs of research and development, and compares the software industry to the medical drug industry. There are a couple of reasons I don't buy into this argument. The costs of software development, in general, pale in comparison to the costs of drug research. The equipment necessary, clinical trials and years of development for drugs are far more expensive than developing your typical application. Sure, Microsoft may be approaching that kind of R&D funding for Longhorn as a project -- but Microsoft wouldn't patent Longhorn -- they patent specific pieces of the project, which don't come close to adding up to one significant medical invention.

As our patent system works now, a single programmer can come up with an idea and implement it in a very short time and apply for a patent -- assuming they have the funds to work their way through the patent process, of course. In fact, the cost of getting a patent may be higher than the cost of developing the "invention" in the first place.

Finally, Carroll argues that software patents are a benefit because they encourage dissemination of knowledge. That's certainly a worthy goal, but ultimately worth very little in the software patent debate. The reason I say that is because the knowledge provided in a typical software patent does little to forward the science of software development.

Most of the time, it's quite possible to implement something that's been patented without any of the information published in a patent. Consider the patent granted to Microsoft for "Time based hardware button for application launch" granted last April -- a method for clicking buttons to start applications. We needed documentation from Microsoft to move the field of computing forward in this area? I think not. What patents are very effective at, in the software industry, is blocking innovation.

As has been discussed many times before, fighting software patents costs a lot of money -- something that Microsoft and other large corporations have in abundance, and small startups are lacking. Even if they are sure to win, many companies can't afford a protracted legal battle over software patents when they're trying to establish themselves in the market. Is Microsoft's button-clicking patent more likely to A) disseminate knowledge, or B) be used against a competitor as part of Microsoft's massive patent arsenal? (Actually, it's probably C) collect dust and serve as a reminder of silly patents.)

Let's return to the issue of whether corporations matter. Carroll posits that "Stallman is no fan of corporations," and suggests that Stallman has "shaped this debate in religious terms and turned it into a battle of absolutes."

Unfortunately, this is a battle of absolutes. Remember, the issue that prompted Stallman's piece is the European patent directive, which threatens to introduce U.S. style software patents in Europe. That is, in fact, a fairly black or white proposition. If one supports software patents, then it's a big plus to see that Europe accepts the same kind of software patents that are already prevalent in the U.S. For those of us who do not support software patents, it's a big negative.

Whether Stallman is in favor of corporations or not, I have no idea. However, I see software patents tilting the playing field too far in favor of a small subset of corporations, and ignoring the interests of small companies and FOSS developers and users -- which is basically the rest of the population, given the ever-widening use of open source and free software. It's not whether or not corporations matter, it's whether their interests should be paramount and whether benefits to corporations are benefits to society in general. In this case, I see the "benefits" of patents being limited to those corporations, and not something that benefits the population at large.

Topic: Patents

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19 comments
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  • No threat of EU patents; they're there.

    Better than 30,000 and more flying out the door of the EU patent office every day.
    A survey from Duke law indicates there's no effective difference between the software patent systems in the US and the EU.
    Anton Philidor
  • My opinion is a bit nuanced

    Back in September of 2003 (when I still had my crazy goatee) I wrote a long article attacking software patents, and advocating Europe continue as a parallel experiment to America's pro-software patent regime (http://news.zdnet.com/2100-9595_22-5076320.html).

    Even then, though, I understood some of the advantages of software patents, and mentioned them in the article. Hollerith's patent WAS the foundation for his business (which later grew into IBM, friend of friends to open source), and if you look at it (a patent on hole punching as a means of data storage), it's very little different than, say, a patent on a particular UI design. Likewise, RSA Security wouldn't have gotten off the ground if they didn't have that patent on the RSA algorithm.

    You're right, though, that software patents have costs (silly patents as barriers to innovation, etc.), and that's why I've come out against software patents. My problem, however, is that there are benefits to software patents.

    Bad patents aren't an indictment of patents as a whole any more than bad laws are an indictment of art. The solution to bad laws isn't (always) to eradicate them completely, provided that the problem is fixable.

    What I'm arguing now is more a middle ground, perhaps a recognition that software benefits can offer some of the same advantages that patents do to the drug industry, but recognize that software IS different, and needs to be treated as such (shorter patent periods, more rigorous standards of patentability are good starters).

    Anyway, thanks for the comments.
    John Carroll
    • Punched card patent like UI design patent?

      woops.

      Meant to post the "Punched card patent like UI design patent?" post here, but posted it below.

      Oh well.
      dc_rees
  • Stallman Was Right In His Article

    Stallman?s politics or even motives behind [url=http://news.zdnet.com/2100-9593_22-5754104.html]his article[/url] concerning the absurdity of patents is irrelevant. The fact is that his article is sound, and I?m surprised that Mr. Carroll suggested that Mr. Stallman?s political leanings undermined the credibility of his arguments. If Mr. Carroll had pointed out deficiencies in Mr. Stallman?s reasoning in the article (instead of dismissing out-of-hand what Mr. Stallman wrote), then made the case that Mr. Stallman was putting forward phony arguments, then I would have been more inclined towards what Mr. Carroll said. But what Mr. Carroll did actually contradicts what he wrote in [url=http://blogs.zdnet.com/carroll/?p=1461]this article[/url], regarding the fact that working for MS is no grounds for anyone to assert out-of-hand, that his articles are unfair. In other words, Mr. Carroll cannot reasonably say that his articles should not be dismissed out-of-hand just because he works for MS, then dismiss Mr. Stallman?s article out-of-hand, because of his political leanings.

    As far as I?m concerned, Stallman?s article was right on the money ? and I?m very much a pro-business, pro-market, conservative Republican. Absolutely no company has stepped forward to make the case as to why software patents are necessary. Every large company just provides canned answers like, ?Patents are valuable resource to protect our intellectual property.? No one wants to debate Stallman (or others against patents), because I believe, their motives are not as they appear. As I?ve said repeatedly, copyright is largely sufficient for software, and patents should be scrapped altogether for national trade secrets and reverse engineering laws. It is a bad idea to protect ideas, and no dressing up patents to make them look good will detract from this fact.
    P. Douglas
    • Patents without patents.

      If you're saying that some combination of copyright and trade secret protections and reverse engineering laws would do the same thing patents are intended to do, then you're saying patents are necessary and productive.

      Your argument becomes: patents should be modified to be more effective.
      That's far from agreeing with Mr. Stallman.

      I think patents do not require as much modification as you argue, but that's another issue.
      Anton Philidor
      • Protecting Ideas Are Just Plain Bad

        [i]If you're saying that some combination of copyright and trade secret protections and reverse engineering laws would do the same thing patents are intended to do, then you're saying patents are necessary and productive.

        Your argument becomes: patents should be modified to be more effective.
        That's far from agreeing with Mr. Stallman.

        I think patents do not require as much modification as you argue, but that's another issue.[/i]

        No. What both Stallman and myself are arguing is that while it is a legitimate thing to protect IP, protecting ideas is a bad idea. Drug companies can gain adequate IP protection from national trade secrets and engineering laws instead of patents, and this will not restrict their competitors from innovating.
        P. Douglas
      • Protecting Ideas Are Just Plain Bad

        [i]If you're saying that some combination of copyright and trade secret protections and reverse engineering laws would do the same thing patents are intended to do, then you're saying patents are necessary and productive.

        Your argument becomes: patents should be modified to be more effective.
        That's far from agreeing with Mr. Stallman.

        I think patents do not require as much modification as you argue, but that's another issue.[/i]

        No. What both Stallman and myself are arguing is that while it is a legitimate thing to protect IP, protecting ideas is a bad idea. Drug companies can gain adequate IP protection from national trade secrets and [b]reverse[/b] engineering laws instead of patents, and this will not restrict their competitors from innovating.
        P. Douglas
    • Forbidden Knowledge

      [i]As I?ve said repeatedly, copyright is largely sufficient for software, and patents should be scrapped altogether for national trade secrets and reverse engineering laws.[/i]

      If I understand you correctly, you'd replace patents with laws forbidding -- forever -- the study of existing products.

      As bad as software patents might be, I would have to consider laws forever banning us from even asking questions or thinking about things much, much worse.
      Yagotta B. Kidding
      • Companies should have the OPTION to say that their work can't be rev. engd.

        [i]If I understand you correctly, you'd replace patents with laws forbidding -- forever -- the study of existing products.

        As bad as software patents might be, I would have to consider laws forever banning us from even asking questions or thinking about things much, much worse.[/i]

        I believe that reverse engineering law should state, that the maker of a product has the right to forbid (maybe for a limited time) the reverse engineering of its product. In other words, just has how companies have the [b]option[/b] to protect their work using copyright, trade secrets, etc., companies should also have the [b]option[/b] to protect their work using reverse engineering law.
        P. Douglas
        • OK, explain

          How you're going to tell the difference between someone who "reverse engineers" a mechanism buried in a widespread product and someone who independently invents the same thing.

          Worse, explain how you're going to enforce a prohibition against "reverse engineering" Amazon's "one-click" checkout or Eolas' plugins.

          Reverse engineering is basic human creativity. Your proposal is even worse than the current patent system, since there's no review at all.
          Yagotta B. Kidding
          • Re: OK, explain

            [i]How you're going to tell the difference between someone who "reverse engineers" a mechanism buried in a widespread product and someone who independently invents the same thing.[/i]

            In the case of a drug, you will see near identical characteristics and results from the competitor drug. If a company suspects that its product was reverse engineered, it could do an examination, then go to a government agency with a request for it to do an investigation to determine or judge if the product was reverse engineered. It would almost be like a copyright investigation, to see if there is a striking level of similarity in the design or expression of the product.

            In the case of a computer processor, you could see if the behavior and inputs and outputs of a product are substantially identical to an original product.

            [i]Worse, explain how you're going to enforce a prohibition against "reverse engineering" Amazon's "one-click" checkout or Eolas' plugins.[/i]

            If when you plug a piece of software in the place of another, and it acts nearly identically to the original piece of software (in its immediate surroundings), then you can legitimately suspect that the original piece of software was reverse engineered to produce the new piece of software. But as a practical matter, which developer would want to reverse engineer ?one-click? or most pieces of software? It would be a lot easier for a developer to note the ?one-click? design, and implement his own version from scratch. Reverse engineering APIs may be worthwhile ? but that is a narrow category of software that is developed.

            [i]Reverse engineering is basic human creativity. Your proposal is even worse than the current patent system, since there's no review at all.[/i]

            No it is not ? and also I?m talking specifically about reverse engineering products to develop the know how to create your own products. Besides, companies that produce graphics boards, do license their technology, under the provision that you do not reverse engineer them. Therefore quite a number of products cannot be reverse engineered now without breaking the law.

            The critical things about the application of reverse engineering laws, are that: they deal with the specific practice of someone reverse engineering another person?s product to develop know how to build his own; when investigations are done, government examiners look for near identical characteristics that are unique in the complaining party?s product, that cannot be reasonably explained away by independent development. Also they could be made to apply for restricted lengths of time. Therefore e.g., if an OS company sees another product that has APIs substantially similar to its own, and the only reasonable explanation for the similarity in the complex product is reverse engineering, then provided the OS company stipulated that its APIs should not be reverse engineered, it would have cause to go to a government agency with a complaint about the matter.

            Reverse engineering law could substitute well for patents, in that if someone develops a baseball cap, and stipulates it should not be reverse engineered, then it would be virtually the same thing as patenting it. However if a component?s or product?s overall expression is substantially dissimilar, then reverse engineering law would not rule for the complaining company. Therefore if e.g. company came out with a PDA with a particular OS, I/Os, and internal design, and another company came out with a model that was substantially dissimilar in overall (not just superficial) expression (or even similar expression, but the similarity in expression could be attributed to a means other than reverse engineering), then reverse engineering law would not rule for the complaining company.
            P. Douglas
  • Software patents can make money for the holder.

    The core question is, how to make money on software.

    A patent holder has control over an idea.
    If the idea is used by another person or company, the patent holder makes money on it.
    If another company cannot use the idea because the patent holder refuses to license it, then the patent holder can make money from using the idea with less competition.

    Note that I'm referring to patents, not copyrights, because I'm referring to ideas, not specific implementations of those ideas.

    The only reason to argue with software patents is to argue with their effect. That effect is to make money for the patent holder. I disagree with the idea that software should not make money.

    There are problems with the issuance and use of patents, as with other forms of IP. The solution is to solve the problems, not to abolish patents. As Origen showed, eliminating the opportunity for a problem to arise can be painfully extreme.
    Anton Philidor
    • Laws of Unintended Consequence

      [i]The only reason to argue with software patents is to argue with their effect. That effect is to make money for the patent holder. I disagree with the idea that software should not make money.[/i]

      That's not their only effect.
      Yagotta B. Kidding
    • Make money for who, Anton?

      If my small consultancy develops innovative code, where would a patent help me? I don't have thousands and thousands of additional dollars to invest in the patent process. And I don't have unlimited resources to study and research unlimited amounts of frivolous patents so as to verify whether or not my code "infringes" on some big corporation's stockpile of hoarded patents, either. Even if I did manage to patent my idea, what would prevent Microsoft, if they liked the idea, from suing me based on frivolous litigation, sinking me with lawyer's bills, and then forcing me to sell out to one of their child companies?

      Patents work like so many other mechanisms set up over the years, to help the rich get richer and keep the poor under their boot. Anyone who argues otherwise isn't being realistic. We need to get our heads out of the sand and think real world here, people.
      Kamikaze_Ohka
  • Change of Tune

    The problem with this debate is that it always seems to degenerate into a slanging match about what patents offer, or don't offer, certain interested parties (favorite corners to fight: Big Business, Small Business, and Open Source).

    And, it always begins with patents.

    I think we need to break away from patents all together.

    Patents were invented because they had obvious economic benefits.

    Patents are a terrible way to reward authors of books - so they have copyright.

    Copyright and patents are terrible for rewarding software writers - so they need something new.

    Let's start by asking the question:
    What is software?

    When we have answered that, we could try:
    What is true innovation in software [creativity, non-obviousness, a Eureka moment that makes other software writers say "Wow! I wish I'd thought of that!"]?

    When we know that we might have an idea what we want from a Softright system.

    Next, we need to ask the questions:
    - Patents and copyrights reward in order to extract economic benefits. What are the economic benefits of software, and how do our Softrights ensure these economic benefits flow?

    - Patents and copyrights reward their creators. How do our Softrights reward creators of great software innovation?
    Stephen Wheeler
    • Pretty good comment

      Maybe we do need to go in a different direction.
      roaming_z
  • The cotton Gin

    I have always said that machine age patent/copy right law doesn't fit with todays technology. Well, maybe for the parts in the PC, but not for the software that operates it.

    Have we noticed that things kind of went haywire in other areas (music, movies..ect..) with the PC boom? I got Big floppies with my 286, Disk operating system .. hello!

    The law should have protected IP's and provented reverse engineering. But it didn't do a very good job, and has caused all kinds of piracy and copy right infringement.

    I always wonder, didn't anyone understand how this was going to play out? Micro technology made more than the sky the limit, we went to Space and landed on the moon! (still rotf about Y2k).

    Who was it that said we'll never need more than 640k of memory? Or was it 64k?

    Patent law does not dictate how things will be done or invented. Do we have only one car? How many brands of lite bulbs are there? How many Bells/Telco's and ISP's did we go though in the past 10/15 years? It's all about money like Fords housing projects for plant employees.

    This isn't saying that inventors don't have the good for all man kind in mind.

    Large Corporations have taken the patent law and hyper extended it to cover more than it can by law. To secure continued production and sales by demanding a standared be followed. How we use a PC, how people operate a business. We will use this Operating system and exchange .doc word documents only! Like sudo Patent Socialism.

    New word... Secret, and this is the key word. If we keep it a secret no one will know and we can control the market. There is nothing wrong with keeping your inventions workings a secret. However, this is the 21st century so don't bet on it staying a secret. Patents can't hide secrets.

    The fact is the consumer doesn't give a damn about your patent. We care about good product. The patents do nothing for us as consumers. We want product. The patent is for the inventor and producer. The product is for the consumer.

    Open source is, because that's where it was left to be invented. Is it the natrual evolution of software inovation? Public software invented and created by the public? Lawless without privet patents? Like a public Frankenstine gone mad?

    Just one more thing. I just upgraded to Fedora core 4 and installed this K-yum GUI. I can update,install, and remove software with a few clicks. (and much much more) I don't have to wait until Tuesday to patch! :)
    xstep
  • Punched card patent like UI design patent?

    No way.

    Patenting a punched hole to store data looks obvious to us now. There was prior art in the control tapes for player pianos and control cards in Jacquard looms. But holes to strike out numbers and letters was an invention, as were the mechanical devices to punch and sense the data. This is all very practical, very applied, not abstract at all.

    Card punch machines, however, were a user interface, and there were many aspects of them that were not originally obvious. The mere physical nature is not so much relevant as the innovation.

    The issues are whether the patents can be made restrictive enough to allow people to compete. Until software patents are restricted to implementation, so that the patent of a specific implementation of an algorithm or procedure still allows an alternate implementation, software patents are like patenting thoughts, and are just plain unenforceable without breaking free society.

    But an implementation is an expression, and expression is the subject of copyright, so I am not sure I see any purpose in patents for software at all.
    dc_rees
  • The biggest problem with software patents...

    Stallman didn't explain this well in his article. But patenting mathematical algorithms means any use of that algorithm is off-limits.

    When you patent a mousetrap, others can look at what you did, improve on it a little, and patent a better mousetrap. You publish your work to the patent office.

    When you patent an algorithm -- software -- or a business method -- then you patent every instance of that algorithm or business process.

    This is not how patents were meant to work. You patent one invention, one way of doing something, not all ways of doing something.

    Software and business method patents turn the whole system on its head. They retard progress, they retard the exchange of information, and they greatly retard the ability of small businesses to succeed.

    On all these levels they are retarded. Even for Microsoft. But sometimes you look at your short term instead of your long term. Software patents have done as much as anything to kill the huge ecosystem that once supplied Microsoft with software. Is it a coincidence that ever since the software patent regime began Microsoft has been eating its young, extending the operating system into places where its ISVs formerly dominated?
    DanaBlankenhorn