Prior art won't solve the software patent problem (NewsForge) [LWN.net]

Prior art won't solve the software patent problem (NewsForge)

Posted Sep 21, 2006 13:39 UTC (Thu) by nim-nim (subscriber, #34454) [Link]

As other people more knowledgeable than me have written:
- work on separating software IP law from biotech IP law,
- make clear patents have no place in software IP law,
- don't waste time trying to make software patents work.

Patents mean patent lawyers and patent offices. You can't get rid of them the way you can get rid of copyright lawyers by choosing a generic license (like GPL) and not reading protected software code. Regardless of whether you choose to pay patent lawyers to contest patents or prempt the fight by paying patent specialists to maintain a prior-art database you're effectively financing the patent system for zero win.

Prior art databases or patent pools aren't ways to get rid of the software patent costs. They're ways for patent lawyers and patent offices to make the ongoing costs indirect enough and diluted enough people do not notice them.

The OSDL does not have unlimited resources - every cent spent on this database won't get spent on other FLOSS initiatives. In other words, software projects will still foot the bill.

And it doesn't even remove the patent threat, as some patents will pass through the net and will be used against software projects.

Prior art won't solve the software patent problem (NewsForge)

Posted Sep 22, 2006 16:20 UTC (Fri) by PaulMcKenney (subscriber, #9624) [Link]

OK...

> - work on separating software IP law from biotech IP law,

This would require pushing through changes in USPTO regulations, perhaps also legislation. All the earlier comments about resistance to such changes being funded by use of existing patents apply to this -- in other words, resistance to existing patents in the short term is necessary to have a decent chance of pushing through reform in the longer term. In addition, at best, this change would require years. Nonetheless, had you suggested this a year or so ago, I would have agreed with you.

However, in the past year, some biotech trends have become clear. Recent advances point clearly to a convergence between genomics and software -- in essence, each cell is similar to a computer, with its software coded in DNA and RNA. So with a lot of work and more luck than anyone deserves, yes, you might split SW and biotech IP law so as to remove biotech opposition to SW patent reform. But by then, biotech will have become thoroughly emmeshed in a situation very similar to that of software patents -- anyone with a modest computer would be able to crank out biotech patents.

So, by the time this approach bore fruit, the effect will quite likely be to to cut us off from a new-found ally in the form of biotech firms dealing with their equivalent to software patents.

> - make clear patents have no place in software IP law,

Easy to say. But I am afraid this soundbite does nothing to convince me that you (or your more knowledgeable people) have a plan that has a chance of making a real difference here.

> - don't waste time trying to make software patents work.

Not sure exactly what you are getting at here, but I am not trying to make them work, I am instead trying to prevent them from harming F/OSS in the near term. I am also trying to give badly needed reforms a chance of avoiding being drowned by lobbying paid for by patent litigation.

---

Your other comments seem to be based on a misunderstanding. I do not advocate things like prior-art databases to the exclusion of other approaches. Many different approaches are needed, working together, in the short-, mid-, and long-terms. But I believe someone else made this point some years ago. ;-)

You might also be well-advised to carefully study US Patent #4,135,240 (long since expired, so in my personal opinion no longer any danger, but you should consult your lawyer if you are concerned -- and I am not a lawyer). This patent was filed in 1973 and granted in 1979, quite some time before software patents were valid in the US. Yet this is the "setuid" patent that became so infamous in the late 1980s (yes, "setuid" as in the setuid bit in UNIX file permissions). So, if all we do is abolish software patents (and don't get me wrong, I fully agree that this would be a great and wondrous achievement), how many "software" patents would really be eliminated? What would patent lawyers do to "dress up" software patents so as to appear to still be legal? If you were to take a careful look at existing software patents, you would very likely find that patent lawyers have been doing such "dressing up" for quite some time. (Of course, you may wish to consult a lawyer before reading patents that are still in force -- probably safer to select one that has been allowed to lapse, for example, at the 3.5-year renewal point. But again, I am not a lawyer.)

Be careful. It is a real world out there. Don't try to program it like you would a computer. Unless perhaps you are a "corewars" programmer.

Paul E. McKenney (my opinions, not necessarily those of my employer)

Prior art won't solve the software patent problem (NewsForge)

Posted Sep 22, 2006 18:29 UTC (Fri) by nim-nim (subscriber, #34454) [Link]

> If you were to take a careful look at existing software patents, you
> would very likely find that patent lawyers have been doing such
> "dressing up" for quite some time.

Which is exactly why accepting to fight on the patent lawyers field is ultimately a doomed endeavour. A clear "this is not patentable" order patent lawyers can not contest before judges is what's needed, not something they can wiggle out of because they know the rules better than your average judge or software person.

> Be careful. It is a real world out there. Don't try to program it like
> you would a computer.

And how would you qualify software people that think with their feeble grasp of current IP law they'll be better able to make use of a prior art database than the patent sharks out there?

Sure they can build it. Just like an engineer can design a better gun than the model current swat team use. Does it mean that once the better gun is built and on the market the engineer has a fighting chance against swat people?

Prior art won't solve the software patent problem (NewsForge)

Posted Sep 22, 2006 19:10 UTC (Fri) by PaulMcKenney (subscriber, #9624) [Link]

Let's just say that I have learned some hard lessons over the past 3.5 years that have caused me to greatly increase my estimate of what lawyers (including patent lawyers) are able to wiggle out of -- and into, for that matter. And please do read #4,135,240 for an example of the wiggling possible. Your comments lead me to believe that you have not yet done so, or perhaps have not yet thought carefully about the implications.

Your swat-team metaphor applies to patent reform just as surely as it does to things like prior-art databases. In both cases, even the best of intentions do not necessarily lead to good results.

And refusing to countenance short-term action against patents will mean that your patent sharks will continue accumulating money with which to fight patent reform. If you don't like prior-art databases, fine and well. But tell us what short-term measures we should be using instead -- and why. The long-term strategies you are advocating simply cannot succeed without short-term action.

Paul E. McKenney (my opinions, not necessarily those of my employer)