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posted by janrinok on Thursday June 07 2018, @01:39PM   Printer-friendly
from the EU-got-something-right dept.

Gervase Markham has a thorough blog post about a case for the total abolition of software patents. He makes his case based on their complete lack of promotion of innovation and aims at identifying the principles involved. The feasibility of eliminating them may be a ways off due to the heavy politics involved so the idea may seem like a very distant policy possibility.

One immediate question is: how does one define a software patent? Where is the boundary? Various suggestions have been made, but actually, this question is not as important as it appears, for two reasons. Firstly, if we can demonstrate that there is a group of clearly identifiable patents which are harmful, or harmful when enforced in particular situations, then we can adopt the principle that such patents should not be granted or should not be enforceable, and where one draws the exact line between them and other patents becomes a secondary, practical, definitional issue beyond the initial principle. Secondly, some methods proposed for dealing with the problem of software patents do not actually require one to define what a software patent is. For example, one proposal is that one could change the law such that no program written to run on a general purpose computer could ever be said to be infringing a patent. In this case, you need a definition of "general purpose computer", but you don't need one for "software patent". Given these two points, I don't intend to spend time on definitional issues.

Currently software patents are a problem affecting the US and prohibited in the EU due to Article 52 of the European Patent Convention in 1973 (EPC). However, they are currently being pushed by the European Patent Office (EPO) in the name of "harmonization" despite being invalid. Many consider the fact that Europe remains unafflicted by software patents to be a moderating influence on the US market, holding back a free for all.


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  • (Score: 4, Disagree) by MichaelDavidCrawford on Thursday June 07 2018, @02:51PM (15 children)

    by MichaelDavidCrawford (2339) Subscriber Badge <mdcrawford@gmail.com> on Thursday June 07 2018, @02:51PM (#689872) Homepage Journal

    Without the MP3 patents - there were I think three dozen of them - we wouldn't have Ogg Vorbis.

    The problems I see with many patents are found among most kinds of patents, not just software: patents must be "novel and unobvious". Many patents fail that test and so should be voided by the courts.

    There is also the procedure for making the patented invention. I don't remember the exact words but more or less that procedure must enable someone skilled in the required trade to make that invention themselves. That requirement is often not met because those instructions are often incredibly complex and obfuscated. I'd like to see some patents - not just software patents but others - voided.

    I invented an algorithm and a file format for lossless compression of bitmap imagtes. My particular invention is extremely fast for decompression. There's quite a lot of money-making applications, for example weather satellite imagery.

    I invented and "brought to practice" my compressor in 1995. Under the patent law of the time I had just one year to file my application once I brought it to practice. So my original invention cannot be patented.

    Get This: It's A Trade Secret! That's why I support software patents: they eventually expire. Patents enable us to use products that would otherwise be kept secret forever.

    One can patent improvements. I've thought of numerous improvements to my original compressor. I'm going to patent those improvements.

    Nolo Press' "Patent It Yourself" gets an 11 Thumbs Up review at Amazon. After I think my application is ready, I'll pay a patent attorney to critique it. The usual advise is that if you read Patent It Yourself you only need to pay your lawyer $300 to approve your application.

    --
    Yes I Have No Bananas. [gofundme.com]
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  • (Score: 5, Insightful) by Anonymous Coward on Thursday June 07 2018, @02:54PM (1 child)

    by Anonymous Coward on Thursday June 07 2018, @02:54PM (#689873)
    Without software patents we wouldn’t NEED Ogg Vorbis! Without patents the algorithm would have been free for anyone to study and improve upon, and we would likely have had better compression algorithms thanks to that. Shoulders of giants and all.
    • (Score: 1) by anubi on Friday June 08 2018, @08:42AM

      by anubi (2828) on Friday June 08 2018, @08:42AM (#690244) Journal

      Standards should not be patentable. Dammit, the whole purpose of standards is interoperability.

      Employers would be furious if workmen took to using unique languages to communicate with each other on the job, even if they communicated with their supervisor in English.

      I've seen employers here in Southern California go around hiring Mexicans, but insist that all communication in the workplace be in English. Even if they were just talking amongst themselves. The employer likely thinks they may be planning something that they don't want the boss privy to???

      Well, a lot of us feel that same way about all these "rightsholders" that coin cryptic protocols and have already demonstrated being sneaky.

      And it bugs me a lot to see our Congress backing them up.

      --
      "Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
  • (Score: 2, Interesting) by Anonymous Coward on Thursday June 07 2018, @03:20PM

    by Anonymous Coward on Thursday June 07 2018, @03:20PM (#689882)

    Your post is awesome. An obvious cutting acidic sourmander sarcastic slice into the current patent stupidity affecting legal systems across the globe while avoiding being an obvious troll. Well done you. I'll pay this

  • (Score: 5, Insightful) by loonycyborg on Thursday June 07 2018, @03:21PM (1 child)

    by loonycyborg (6905) on Thursday June 07 2018, @03:21PM (#689883)

    What's the advantage of this patent red tape compared to defensive publication? You'd have to act like patent troll to monetize it in any way. Otherwise your patent will be just a part of some patent "war chest" that is cross-licensed to everyone anyway. In practice this only prevents new entrants on the market because they can be easily killed off with those patent portfolios, unless they play ball. So patents are basically tool of control, for existing corps to only allow their inbred relatives to make new businesses, basically to make barrier to entry high enough.

    • (Score: 0) by Anonymous Coward on Friday June 08 2018, @02:27AM

      by Anonymous Coward on Friday June 08 2018, @02:27AM (#690167)

      Don't feed the sarcasm

  • (Score: 5, Insightful) by Nerdfest on Thursday June 07 2018, @04:45PM (4 children)

    by Nerdfest (80) on Thursday June 07 2018, @04:45PM (#689931)

    There are *exceedingly* few bits of software where I think to myself "I have no Idea how that's done". That's me. I do business software, scientific, database stuff, web stuff, a bit of hardware, etc. Someone who does video processing, pattern recognition, etc would cover another *huge* swath of software. How many things could truly not be replicated by a person truly "skilled in the art"?

    • (Score: 4, Insightful) by DannyB on Thursday June 07 2018, @05:26PM (3 children)

      by DannyB (5839) Subscriber Badge on Thursday June 07 2018, @05:26PM (#689966) Journal

      That is a very important argument.

      Many of the things patented ARE in fact obvious. It's just that for the longest time, nobody thought they should race to the patent office to prevent other people from using obvious techniques.

      Some argue, it is only obvious in hindsight. if it were so obvious, why weren't others doing it? Maybe they were. Maybe the entire industry was on the brink of doing the same thing. Example: Amazon's 1-click patent. If Amazon hadn't done that on its website first, someone else would have within six months. It's an idea that would come to anyone in a similar business. What if I made it as easy as possible for people to buy stuff on my site? Is there anything easier than one click to purchase?

      --
      People today are educated enough to repeat what they are taught but not to question what they are taught.
      • (Score: 3, Interesting) by JNCF on Thursday June 07 2018, @10:21PM (1 child)

        by JNCF (4317) on Thursday June 07 2018, @10:21PM (#690092) Journal

        What if I made it as easy as possible for people to buy stuff on my site? Is there anything easier than one click to purchase?

        *files patent for no-click purchasing*

        • (Score: 0) by Anonymous Coward on Friday June 08 2018, @02:33AM

          by Anonymous Coward on Friday June 08 2018, @02:33AM (#690169)

          Denied!
          I walked into the cafe today for my usual. The lady looked at me but did not stop7 taking to a customer at the counter. The barista guy made myusual and put it in front of me. He took my cash and gave me change. The Cafe llady said to me that they guessed my coffee so no need to ask.

          Patent denied! Not innovative just because it is on the Internet".

          In other news, the bacon and egg combo special looked good today. I missed breakfast on the way out. Would have been nice. They never asked me what I wanted to order. Just put it in front of me.

      • (Score: 1) by anubi on Friday June 08 2018, @08:59AM

        by anubi (2828) on Friday June 08 2018, @08:59AM (#690251) Journal

        To me, "one click purchase" isn't much different from the HTML checkbox.

        Click it once, its not ticked. Click it again, off.

        As far as I am concerned, a pure "one click purchase" can be deadly, as one can mistakenly click when attempting to scroll the page or the like, especially on touch tablets.

        Gotta be at least a confirmation step.

        I would hate to find myself ordering two dozen adult diapers when what I was trying to do was get the ad off my screen.

        Gee, can I patent using a screwdriver to pry open a can of paint? Isn't it kinda obvious? All that patent will do is make it so any painter using the tool that way has got to pay me.

        Isn't "extortion" or "theft" a more fitting descriptor for an act of Congress codifying my business model into statute?

        --
        "Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
  • (Score: 1, Insightful) by Anonymous Coward on Thursday June 07 2018, @04:57PM (1 child)

    by Anonymous Coward on Thursday June 07 2018, @04:57PM (#689940)

    Without the MP3 patents - there were I think three dozen of them - we wouldn't have Ogg Vorbis.

    Let's test your logic on another topic:

    Without Hitler, there would not have been a victory over Hitler. The victory over Hitler was good. Therefore Hitler was good.

    I'm not sure many people would agree with this argumentation …

  • (Score: 5, Insightful) by stormreaver on Thursday June 07 2018, @08:13PM (1 child)

    by stormreaver (5101) on Thursday June 07 2018, @08:13PM (#690047)

    Without the MP3 patents - there were I think three dozen of them - we wouldn't have Ogg Vorbis.

    Without the MP3 patents, Ogg Vorbis wouldn't have been necessary. The MP3 codec would have been built upon, its deficiencies reduced or eliminated, and an improved (and mostly likely compatible) version of the codec would have been in popular use. The MP3 patent retarded innovation.

    Many patents fail that test and so should be voided by the courts.

    You just made a great argument for abolishing ALL patents. The courts spend WAY too much time on patent cases, taking away precious resources from real issues. Then there's the billions of dollars being drained from the economy to fight about who gets the exclusive right to sell and use specific large numbers. Software patents are harmful to the country.

    I invented and "brought to practice" my compressor in 1995.

    First, I can guarantee that your compressor is insignificant when compared to the existing body of NEVER PATENTED work. Second, I can also guarantee that you would have come nowhere close to ANY type of reasonable compressor without relying on the huge body of NEVER PATENTED work. If the sum knowledge of compressor algorithms was tied up in patents, we wouldn't have a software industry. Only a few rich corporations would have the money to pay the licensing fees.

    Get This: It's A Trade Secret!

    That's no different from what we have now. Patent expiration is largely irrelevant, as most patents are written so that someone skilled in the art could not reproduce the patented subject matter after the patent expires. What we have now is a trade secret system with legally enforced exclusivity. These patents are extremely wordy without actually telling us anything useful, and so generic as to avoiding actually stating any specific claims that would satisfy the basic patent requirements.

    • (Score: 2) by melikamp on Friday June 08 2018, @04:24AM

      by melikamp (1886) on Friday June 08 2018, @04:24AM (#690197) Journal

      To add to this lucid analysis, we could as well start from a different position entirely, if we want to be fair, that is, and if we accept that the only useful patent law is the one which actually benefits the public, as opposed to a very small percentage of individual inventors and a few patent-hoarding companies.

      The patent law, regardless of its stated purpose (here in US, to "promote the progress of science and useful arts" and yadda yadda) can in fact only be directly applied to stop the sharing and implementation of useful ideas, which is painfully apparent in every single court case involving patents. A patent is a state-granted monopoly on manufacturing and selling certain kinds of products, and as such, it is antithetical to both the free market philosophy, whereas manufacturers of consumer goods compete on level ground, and the notion that the cultural/scientific heritage should be communally owned and freely shared. The burden of proving that patents do anything at all for progress/innovation of any kind should be on the patent proponents. Ideally, we need to abolish patents immediately (though it's OK letting the existing ones to expire normally) and have these clowns run a test in one particular state, say, Texas. Enforce patents in Texas and nowhere else, and wait till it surges ahead in innovation.

      If this idea sounds laughable, it's because it obviously won't work, and will almost certainly have dismal consequences for both the state of R&D and the consumer goods prices in that state. And in fact, judging by all the economics research I ever came across, patents seem to change the kinds of innovations (think industry focusing on symptom relief instead of cancer treatments, and in general on things which maximize profits via patents), but not the quantity of innovations. Whatever studies have been done, they seem to indicate no effect or slight negative effect (read: patents are slightly bad for innovation). So the only sensible course of action is it take them to the curb as soon as politically feasible.

  • (Score: 2) by FatPhil on Friday June 08 2018, @01:48PM

    by FatPhil (863) <pc-soylentNO@SPAMasdf.fi> on Friday June 08 2018, @01:48PM (#690311) Homepage
    > Without the MP3 patents - there were I think three dozen of them - we wouldn't have Ogg Vorbis.

    Unfounded assertion. You seem to be implying that in a field which isn't hamstrung by patents innovation would halt, but there's absolutely no reason why that should be the case at all.
    --
    Great minds discuss ideas; average minds discuss events; small minds discuss people; the smallest discuss themselves