Software patents: Broken system or needed for innovation?

Moderated by Lawrence Dignan | June 4, 2012 -- 07:00 GMT (00:00 PDT)

Summary: They're bought and sold like commodities. Can the patent system be fixed - or should it be scrapped?

Ed Burnette

Ed Burnette

Broken

or

Needed

Steven Shaw

Steven Shaw

Best Argument: Needed

Closing Statements

Just say no to software patents

Ed Burnette

Suppose, as Steven argues, that intellectual property can be defined and described, and needs to be protected. Can it be Patented? I would argue that a Patent is the wrong way to protect such a thing, if it even exists. Copyrights are used for other products of the mind such as music, eBooks, and newspaper articles. To me, it makes the most sense to apply copyrights to software as well. Copyrights offer plenty of protection by themselves.

Can software patents be fixed? Over the years, we've heard many ideas such as shortening patent expirations, crowdsourcing prior art, making lawsuits less expensive, and more. My answer to all this is: Why bother? We can have innovation without patents. Some of our greatest innovations such as the World Wide web were not patented (thank goodness!). Patents are a drag on innovation, because they incentivize non-productive behavior. We'd be better off without them.

Software is more like a machine

Steven Shaw

We've covered a lot of ground, but I want to circle back to what I think is the fundamental misunderstanding of software patents.

Software is not the same as mathematical formulas or literary text. Software is much more like a machine. A typewriter is no more of an invention than word processing software -- I'd actually argue that word processing software requires considerably more inventiveness. If a person comes up with an innovative new idea, the idea should be patentable regardless of whether the implementation is via a traditional mechanical machine or a virtual software machine. Once you understand the nature of software in this way, software patents make perfect sense.

There are improvements that can be made to the patent system, but they are the same types of incremental improvements every large system needs. Scrapping the system is just a bad idea.


Not the people's choice

Lawrence Dignan

Steven Shaw is not a popular guy. Why? He's writing that software patents are necessary. Oops. Ed Burnette made a compelling case that copyright law -- rather than patents -- should hold sway over software. However, Shaw's argument held together well. His bottom line: "There are improvements that can be made to the patent system, but they are the same types of incremental improvements every large system needs. Scrapping the system is just a bad idea." I'll give Shaw a narrow victory. The crowd apparently disagrees.

 

Talkback

6 comments
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  • software patent

    Protecting inventors is a great invention. But protecting only who have the money to pay the annual fees is BAD.
    You need example? Mr Kane Kramer.
    Patenting software is like delete every word from a dictionary after the word was said by someone. I can come up with an ideas independently form previous knowledge of a patent, I even can develop it differently, but if someone already patented this idea, I'm a dirty copier or steal the work of others?
    Tamás Almási
    Reply 2 Votes I'm for Broken
  • to promote progress, for a limited time

    The really remarkable part of the Constitution's IP clause is that it specifically points out the purpose for this created monopoly. IP is supposed to promote progress, and what's where strong-IP types get it wrong: they think IP is to promote profit. This protection is also supposed to be limited in time - and the Founders weren't just thinking "finite" here, but of a relatively short term. When applied to Copyright, this limitation has been stretched beyond all reason.

    In other words, it's precisely a back-to-original-intent that will give us an effective way to reform IP law: shorter time limits, and policies designed to encourage rapid disclosure and development of ideas that build on properly narrowly-defined ideas. Blocking patents are inherently wrong, as are very long-term monopolies. For software, these principles would yield some protection, but quite narrowly defined.
    markhahn
    Reply 1 Vote I'm for Broken
  • Need reform: Patent Prime Directives

    US Patent system was invented to promote innovation, competition and commerce by providing protection in the form of temporary monopoly for the original inventors so innovations are encouraged and brought to the commerce or beneficial use without fear of being ripped off prematurely.

    This Temporary Monopoly was never meant to create durable intellectual property to be used by patent trolls or to suppress competition. Derivative products and copying of ideas were viewed as a natural part of innovation and market competition. Patent system was not meant to be used against that process, but rather to encourage proliferation of original inventions (which would naturally give rise to more competition and further innovations).

    The problem with the original patent system is that it lacked clear “Prime Directives” never to be violated as technology grew in complexity and sophistication. As a result, patent system through decades of neglect has been grossly misguided and distorted by the IP profession, misunderstood and often unjustly applied by legal system which may see the tree but not the forest (i.e., US Judge Lucy Koh), neglected by the government and its agency to evolve it to fit the changing world, and grossly misused by predatory corporations (who do not even need the protection in order to innovate) to monopolize or suppress competition.

    If the government is unfit to govern sleeping at the helm and does not see the urgent need to evolve ancient patent system (among many other issues), how are we to bring about the changes required without necessarily having to overthrow the government (in the style of Arab Spring)? Relying on the intelligence and wisdom of our courts to uphold original goal of the patents (i.e., US Judge Richard Posner) is not the most reliable path, but currently our only hope.

    I would like to suggest following reforms to the patent system.

    Definition of a Patent
    - Temporary Monopoly: Patent is a temporary protective rights, not intended to create a durable intellectual property.
    - No Diagram Patents: Patent shall protect the executed, unique and specific functional design or engineering of the invention, but not the form, function or concept of an invention defined solely by process/abstract diagrams without executed engineering/functional design/codes.

    Patent Prime Directives (PPD)
    - Use It or Lose It: Patent shall be put to beneficial commercial or public use within x years (e.g., 3 yrs for software, 7 for mechanical devices, and 10 for all others including pharmaceuticals, etc) of the original filing date in order to be valid.
    - No Damages, No Claims: Patent shall not be used to extract financial benefits from competition in the absence of realized & enumerated damage.
    - No Trolls: Patent may not be transferred from the Inventor to a third party for the purposes of asserting financial claims against competition without implementing beneficial commercial or public uses.
    - No Anti-Competition: Patent shall not be used for predatory or anti-competitive purposes. As such, patent shall not be used as bullying/offensive tools against competition and derivative innovations.

    Special Conditions Against Abuse
    - Willful or repeated violation of Patent Prime Directives invalidates the offending patent as of the original filing date.
    blueglacia
    Reply 3 Votes I'm for Broken
  • Burnette's "More mental than physical" distinction fails

    As Burnette observed, the patent system worked for several centuries, so what changed?

    In the 1930s, Alan Turing showed that any algorithm can be expressed as a Turing Machine, and that any Turing Machine can be emulated on a Universal Turing Machine (i.e. a computer). With some further thought, this implies that any machine or process is equivalent to a TM (a computer program) and vice versa.

    While it took fifty years for the implications of this to filter through to patent law, now that it has done so, there is no going back. In fact, the implications of Turing's work go beyond software patents, because there is no real difference between creating mathematical theorems, algorithms and software, so results in maths ought to be as patentable as any machine or process.

    Burnette hints at a rebuttable to this point of view, writing:

    [quote]
    Of course, there are those who will try to game the copyright system too, but at least they can't get inside your head and try to control your ideas and insights.[/quote]

    What goes on inside one's head is irrelevant and (for now) beyond anyone's control. We don't need patent or copyright laws to guarantee "freedom of thought"; these laws are only interesting when someone wants to exploit thoughts for financial or material gain.

    So long as we allow patents on pharmaceuticals, processes and machines, there is no logical reason for rejecting software patents, patents on algorithms or even mathematical results.

    We must allow all these patents, or none of them.
    StandardPerson
    Reply 1 Vote I'm for Needed
  • Respect the law

    Respect the law
    SmartDummy
    Reply Vote I'm Undecided
  • Needed and Broken

    Protection for genuine innovation is needed, but the system as it is functioning (or dysfunctioning) is basly broken. When patents are granted on the bleeding obvious, when applicants can not only get away with but are encouraged to be as vague as possible, when programmers must scour hundreds of thousands of patents before writing a line of code, when many breaches are merely the consequence of someone independently coming up with the same obviuos solution, and when the ability to defend one's patent or a claim of a breach is based purely on the ability to fund an army of lawyers, the system is badly broken. The system is so broken, it is like having no system at all as it fails to achieve its intended goal of encouraging innovation. In fact, it is so broken that it is achieving the exact opposite of its goal by stiffling innovation. You are better off without a system at all than one that achieves the opposite of what is intended.

    Whether a system is needed is independent of whether the system you have is broken.
    BRC-4c5c4
    Reply Vote I'm for Broken