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Banning SW patents disables patent system?Banning SW patents disables patent system?Posted Nov 14, 2010 2:42 UTC (Sun) by Max.Hyre (subscriber, #1054)In reply to: Best opinion piece on open source and patents in a long time by FlorianMueller Parent article: Red Hat's Secret Patent Deal and the Fate of JBoss Developers (Gigaom)
[Disallowing software patents] won't happen simply because the collateral damage caused to other industries is huge (you either have to do away with the largest part of the patent system [...])How is it that excluding software patents requires eviscerating the patent system? The U.S. used computers for thirty or so years without software patents. The patent system appeared to work just fine during that period. :-)
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Banning SW patents disables patent system? Posted Nov 14, 2010 5:52 UTC (Sun) by FlorianMueller (guest, #32048) [Link]
1) The patent system has generally experienced enormous growth over the last few decades.
2) More fundamentally, the problem is a "systematic" one: software patents describe inventions that are structurally the same as other technical inventions -- and those other inventions now increasingly include computing technology. Software patents in terms of patents reading on software don't even necessarily claim software in their wording, but software can infringe them (at least on a contributory basis). So it's not as simple as just saying "software isn't patentable" because the presence of software in the claims isn't a useful criterion. There's no way to really draw a line without collateral damage. You would basically have to reduce the patent system to molecular pharmaceutics in order to have criteria in place that software patents can't fulfill.
The underlying logic of the patentability of technical inventions is basically that an innovative solution to a technical problem must be patentable. That's what the US Supreme Court also made clear in its Bilski ruling: the Court fully recognized that technology had moved on since patent law was created but that patent law should apply the same principles to old as well as new technologies.
Banning SW patents disables patent system? Posted Nov 14, 2010 12:58 UTC (Sun) by DOT (subscriber, #58786) [Link]
"There's no way to really draw a line without collateral damage. You would basically have to reduce the patent system to molecular pharmaceutics in order to have criteria in place that software patents can't fulfill."
Not necessarily. Add one pragmatic condition to patent law: machine language or machine readable source code cannot be the basis for a lawsuit. Any patents that would apply, only apply when the algorithm is used outside a computer program (eg: a specialized hardware chip). These concepts can be defined just like the GPL defines them.
Banning SW patents disables patent system? Posted Nov 14, 2010 14:31 UTC (Sun) by FlorianMueller (guest, #32048) [Link] Add one pragmatic condition to patent law: machine language or machine readable source code cannot be the basis for a lawsuit. Any patents that would apply, only apply when the algorithm is used outside a computer program (eg: a specialized hardware chip). These concepts can be defined just like the GPL defines them. Before I learned about how substantive patent law (the rules for what is and what isn't patentable) works, I, too, thought that there should be a simple solution like that. But there isn't. What you propose wouldn't work for the following resaons:
Let me make this very clear: I'm disappointed that the facts are the way they are. But we have to come to terms with them. The anti-software-patent movement has no political clout to achieve restrictive legislation beyond existing legislation anywhere in the industrialized world. Even if it could do away with software patents in a way that wouldn't do collateral damage, the movement wouldn't be able to achieve that. But since there would be collateral damage of mind-boggling proportions, you have the entire tech industry up in arms and it's futile to even try. So we have to focus on the way those patents get used.
Banning SW patents disables patent system? Posted Nov 14, 2010 16:21 UTC (Sun) by Zack (guest, #37335) [Link]
Just because you did not succeed doesn't mean you have to automatically join "the winning team".
Maybe, just *maybe*, it isn't all doom and gloom, and it's time to accept that you might not have been the right person at the rigth time at the right place and start including yourself under "any entity or person [that shouldn't be treated] as sacrosanct, infallible, or immune."
"I'm disappointed that the facts are the way they are. But we have to come to terms with them. "
Some of these facts are:
Somewhere out there there might be a person who can relate these simple facts in an effective, elegant and concise way to the necessary institutions, and you're not helping by trying to explain your own faillures in the software patent arena by convincing everyone it really was impossible from the outset on.
So yes, some "coming to terms" might in fact be needed here.
Yes, ad hominem, and I apologize. But once you start reasoning like
Banning SW patents disables patent system? Posted Nov 14, 2010 16:36 UTC (Sun) by FlorianMueller (guest, #32048) [Link] Unfortunately, Zack, the comment of yours I'm responding to is consistent in quality with several others you posted here in reply to what I wrote. This means it's hard to find anything remotely accurate in it, and the extent to which you're emotional is reversely proportional to the extent to which you're informed. Maybe, just *maybe*, it isn't all doom and gloom, and it's time to accept that you might not have been the right person at the rigth time at the right place I won my battle. I wanted to prevent that EU software patent bill from being passed, and I did. A little later, I defended the biggest revenue source of the world's number one club in the world's number one spectator's sport (along with the strategic interests of allies including a couple of other major soccer clubs) in the EU. Then, in a non-lobbying regulatory context, my work contributed to the only Statement of Objections the European Commission issued against a merger during the entire year of 2009. So much for my track record. Would like to know yours, by the way. However, I was talking about the entire worldwide anti-software-patent movement. I wasn't alone in the EU, let alone worldwide. Show me one single offensive victory. Show me that one tenth of an inch of progress that the movement achieved other than in defensive situations such as in the EU and NZ. and start including yourself under "any entity or person [that shouldn't be treated] as sacrosanct, infallible, or immune." I don't have to start including myself there because that's always been my approach. 1. software is math If you knew at least a tiny little bit about substantive patent law, you'd know that what gets patented isn't math, it's technical inventions that apply math. Somewhere out there there might be a person who can relate these simple facts in an effective, elegant and concise way to the necessary institutions, Your knowledge of how politics work is, apparently and unfortunately, at the same level as your knowlege of substantive patent law. This isn't a question of making politicians understand. There's no way the majority of them is ever going to understand, and even if it did, it would look at who wants a certain decision to be taken and who opposes it. I explained right here on LWN what would be needed. Bring in those middle-aged closed-source IT entrepreneurs with beards, bellies and glasses telling politicians how their businesses are in danger and how many people they have to lay off because of problems with software patents, and then the debate will begin. But until that happens, there won't even be a serious debate among political decision-makers. "it's futile to even try. So we have to focus on the way those patents get used." with no support other than your own personal views and theories on how complete industries would collapse if software were excluded from patentability, Two completely wrong things that you said here: 1. There's not just my own personal views and theories here. There's the empirical evidence that the entire anti-software-patent movement, which started in the US in the early 1990s with the League for Programming Freedom and in the EU in 2000 with what became the FFII, has never scored any offensive victory. It has never been able to bring about, let alone push through, a legislative intiative anywhere that would have restricted the scope of patentable subject matter in any way beyond existing legislation in a given jurisdiction. 2. Your wild imagination leads you to claim that I said or implied things I didn't say or imply. I didn't say or imply that "complete industries would collapse". I said that there would be collateral damage in terms of patents being granted on the kinds of inventions I described. Whether that would make industries collapse is a completely different question that I didn't address in any way because it doesn't matter: those industries simply want those patents, whether they're good or bad, and since they want them, politicians let patent offices grant them to them.
Banning SW patents disables patent system? Posted Nov 14, 2010 22:34 UTC (Sun) by Zack (guest, #37335) [Link]
> Unfortunately, Zack, the comment of yours I'm responding to is consistent in quality with several others you posted here in reply to what I wrote.
Of course I might be wrong in aspects of my account. But *everyone* who doesn't agree with your theories about how inevitable software patents are is somehow either wrong, uninformed, not knowledgeable or disingenious. And this includes but is not limited to the EFF, the FSF, RedHat legal, Eben Moglen, GrokLaw ...
It's not hard to imagine someone applying Occam's raisor at some point. And that's without taking into account your machiavellian writing.
Banning SW patents disables patent system? Posted Nov 15, 2010 4:57 UTC (Mon) by FlorianMueller (guest, #32048) [Link] But *everyone* who doesn't agree with your theories about how inevitable software patents are is somehow either wrong, uninformed, not knowledgeable or disingenious. No, there are people with whom it's possible to have disagreements but on a reasonable and logical basis. However, you, Zack, have repeatedly made aggressive statements that aren't backed up by logic and facts, such as claiming that I said/implied things without any basis for it. Also, the way you expressed your ideas of how a political decision can be brought about, it's clear you have neither operated in a political environment at a reasonably high level nor have the knowledge and judgment to grasp how those things work even without having been there. If I called your suggestions for how to do away with software patents naive, I would be very diplomatic. And this includes but is not limited to the EFF, the FSF, RedHat legal, Eben Moglen, GrokLaw ... I had only one public disagreement with the EFF ever: on the bnetd case. However, I reacted very favorably to the Defensive Patent License outlined by a former EFF staff attorney, and the EFF itself is about many things other than indirectly supporting computer game piracy. With the FSF there are certain problems: their radical views on IP are counterproductive in politics, they play favorites with their major sponsors, and I criticize them for calls to spam Larry Ellison's email account or encourage people to write to the USPTO instead of coordinating an organized and competent response. All of those things are bad no matter how good the vision of free software is. Concerning Red Hat, I just told the facts about their former deputy general counsel Mark Webbink's push to keep the EU software patent directive alive, and the very topic of the article here (their non-openness about their patent settlements) is also something for which they deserve to be criticized. One can also -- as I do -- point out that their business model is too parasitic to work for a large part of an industry. There are other things like that, but those are all unrelated to Linux itself. Those are issues with one company's business model, leadership, and lobbying. Eben Moglen is indeed a major problem. I still haven't seen any problem he's ever solved for FOSS, but I've seen some he's contributed to. GroklXX has demonstrably lied on some key issues and if you look at its very recent comments on Google's answer to Oracle's amended complaint, those are so ridiculously off base that they either shill for Google or they write like they've never seen a defense to a patent infringement complaint before that one. t's not hard to imagine someone applying Occam's raisor at some point. That's not an excuse for you making false allegations and expressing absurd views. If you want to apply Occam's razor, LWN provides a feature that enables you to turn off all of my comments so you don't have to read them. If you really mean the things you write about me, then it doesn't make sense that you aren't using that feature. Now that you know it exists, you could search for it and activate it.
Banning SW patents disables patent system? Posted Nov 15, 2010 14:38 UTC (Mon) by Zack (guest, #37335) [Link]
>No, there are people with whom it's possible to have disagreements but on a reasonable and logical basis. you have repeatedly made aggressive statements that aren't backed up by logic and facts, such as claiming that I said/implied things without any basis for it.
-The advance of software patents can't be changed because of the political climate.
and everything else is (in your opinion, which you usually fail to state) either dogma, belief or impractical. The logical basis you start from is not reasonable or logical; it's circular.
As for repeatedly aggressive statements. Personally I find drowning threads in large texts repeatedly and having the last post in every subthread aggressive. So I take it as personal preference and feel in no way does it influence being reasonable or logical.
As for claiming you said things without any factual basis for it, I take it you are referring to the "industries would collapse" I mentioned earlier. It's not verbatim the "collateral damage of mind-boggling proportions" you mentioned, but not the product of a "wild imagination" by a long stretch.
The message you were trying to convey, which was "doing away with software patents would do collateral damage of mind-boggling proportions so it's futile to even try", is still plain assertion. Maybe politicians believe that. Maybe patent holders believe that. Maybe even you believe that. But that doesn't make it true. How would that work ? How did it manage to work at all before ? I mean, if software patents were abolished tomorrow, who would really suffer but for a few german luxury car manufacturers ?
It's not your message I object to, as you claim, but the assertions you present as fact time and again. You present the current interest holders' view as a given and reason from there, instead of trying to analyze deeper and try and make a case for changing the current regime.
Banning SW patents disables patent system? Posted Nov 15, 2010 17:27 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
All of my references to collateral damages where in the context of the scope of patentability. It was about doing away with software patents but simultaneously doing away with even more patents. Here's a quote from a comment on this same subthread: "Even if it could do away with software patents in a way that wouldn't do collateral damage, the movement wouldn't be able to achieve that."
I meant collateral damage in terms of patents not being granted, and it's another question whether that's good or bad for those other industries because those industries want patent protection. Right or wrong, that's their position and politicians won't abolish software patents at the cost of doing away with so many other patents.
The circular logic that you imply (advance of software patents => political climate => advance of software patents) is not even remotely an accurate summar of what I said. I've made it sufficiently clear all the time that there isn't serious resistance to software patents by businesses, but there are companies of all sizes supporting them. There's nothing circular about that.
As for the middle-aged closed-source IT entrepreneurs with beards, bellies and glasses, that is a quote from what a staffer of the largest group in the European Parliament said and I use it as an example of whose resistance is missing. That's independent of the consideration how likely it is that this would happen. If I tell you that you need a spacecraft traveling at the speed of light to get to a given solar system in four years, it doesn't mean that I necessarily think you or anyone else can build that spacecraft. Still it can be correct to state this requirement, even if it's hypothetical.
The middle-aged closed-source IT entrepreneurs with beards, bellies and glasses would be fighting against software patents if those were a pressing problem for the economy.
Banning SW patents disables patent system? Posted Nov 17, 2010 10:32 UTC (Wed) by Randakar (guest, #27808) [Link]
Those industries need to be weaned off their addiction to patents.
Patents don't work. They have never achieved their objectives.
Software patents are just a particularly nasty example of why they don't work. Focusing on abolishing just them is all very nice for programmers, but in reality society needs to get rid of the entire patent system.
In that context I believe the "collateral damage" is actually desireable. If the net effect of this is that nothing can be patented, so much the better.
Banning SW patents disables patent system? Posted Nov 15, 2010 20:40 UTC (Mon) by jra (subscriber, #55261) [Link]
FlorianMueller wrote:
> Eben Moglen is indeed a major problem. I still haven't seen any problem
Eben has tirelessly worked pro-bono on behalf of Free Software projects for longer than you've been around in this community. He has solved many major issues for the Samba project, and was instrumental in the FSF and EU vs. Microsoft case that opened up all Microsoft network protocols for Free Software to implement.
Florian, you really aren't fit to shine Eben's shoes.
Jeremy.
Banning SW patents disables patent system? Posted Nov 15, 2010 20:53 UTC (Mon) by FlorianMueller (guest, #32048) [Link] Eben has tirelessly worked pro-bono on behalf of Free Software projects He talks a lot about pro-bono work but he operates the Moglen Ravicher law firm, which charges clients. The SFLC only advises non-commercial developers, but companies are the ones who have the biggest legal issues and he charges them. He says that his firm donates its profits to the SFLC, but he can define pretty arbitrarily what's a profit and what's simply paid to the lawyers working on the cases, such as him, for their work. There was a lot of money involved with the antitrust efforts you described, particularly a lot of IBM money, and Eben Moglen has directly and indirectly received money from IBM on many occasions. I wouldn't call that pro-bono, even though I do believe that interoperability is worth fighting for. Interestingly, Eben and the others who fought for the cause when it helped Samba (such as ECIS) don't seem to care about interoperability in general. I don't see the fighting against IBM now -- well, IBM is known to fund them. So don't describe such guns-for-hire as idealists.
Banning SW patents disables patent system? Posted Nov 15, 2010 21:03 UTC (Mon) by jra (subscriber, #55261) [Link]
> So don't describe such guns-for-hire as idealists.
For someone who claims to be a member of this community you don't seem to have any history here. You certainly have no memories of it.
In the early 1990's Eben spent his own money to fly around the country to represent Samba to corporations who were violating our copyright, and got them to stop. This was well before "Open Source" existed, or Linux was a gleam in IBMs eye. In addition he has negotiated many agreements between the Samba project and corporations who were using our code in ways that may have violated the GPL, if he had not been there to arbitrate between us.
I know several other occasions where he has done similar things for other Free Software projects. Eben has never charged us for any of this work.
Please take your untruths about Eben elsewhere. There are people here who have memories going back a lot longer than you.
Jeremy.
Banning SW patents disables patent system? Posted Nov 15, 2010 21:09 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
You say "[i]n the early 1990's". According to Eben Moglen's own representation of the facts, he started practicing "free software law" in 1993.
Anyway, that was a long time ago, and you described it as if he was still doing mostly pro-bono work. That's why I mentioned his Moglen Ravicher firm. Also, the SFLC itself isn't the kind of charity as which he describes it. It has very substantial resources (contributed by large corporations) and I heard it takes cuts of the deals (such as settlements) it negotiates, which is also unusual for a charity.
Banning SW patents disables patent system? Posted Nov 15, 2010 21:18 UTC (Mon) by jra (subscriber, #55261) [Link]
Last time I checked, 1993 was "in the early 1990's". Samba was started in 1991, and started to get traction in 1992.
> Anyway, that was a long time ago, and you described it as if he was still
Is this an apology I hear for attempting to attack Eben's good name because someone who knows him well and has *actual facts* about his behavior just gave you a smack down ? If so, it isn't a very good one. I'd work on your politeness if I were you.
Jeremy.
Banning SW patents disables patent system? Posted Nov 15, 2010 21:24 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
Your "actual facts" relate to the early 1990's. I presented facts that concern the current modus operandi of the SFLC and the Moglen Ravicher law firm. I never criticized him for what he did in the early 1990's because I'm simply unaware of what he did then. I have criticized him only in recent years. That's why I believe that the facts I presented are the more relevant ones at this stage, and I don't see how something he did 17 years ago could possibly disprove what's known about his current modus operandi.
Banning SW patents disables patent system? Posted Nov 15, 2010 21:29 UTC (Mon) by jra (subscriber, #55261) [Link]
*sigh*. That would be a "no" on the apology then. Shame :-(.
Never mind Florian, I'm sure you'll reply to this message and having the last word will mean "You win ! You win !" the argument.
Your employers really should take a close look at your modus operandi. By employing someone like yourself they're really wasting their money.
Honey catches more flies than vinegar every time.
Bye from me.
Jeremy.
Banning SW patents disables patent system? Posted Nov 15, 2010 21:35 UTC (Mon) by FlorianMueller (guest, #32048) [Link] Unlike you, I don't have employers. Apart from having corrected you on that detail, I'm absolutely fine with ending the subthread right here and letting people look at the facts that were presented.
Banning SW patents disables patent system? Posted Nov 15, 2010 3:05 UTC (Mon) by bojan (subscriber, #14302) [Link]
> If you knew at least a tiny little bit about substantive patent law, you'd know that what gets patented isn't math, it's technical inventions that apply math.
Ah, yes, that is the trick they use.
Now, consider that software really _is_ math, because it is just a collection of algorithms (we can not only see this with our own eyes, but Prof Knuth, a leading expert in the area - for those who require authority - confirmed the same). If that is so, how can these "technical inventions" prevent this pure math from being distributed? What "technical invention" is being distributed in JBoss, when all of JBoss can literally be printed out on a very long piece of paper and one can in fact follow the algorithms of it by hand? How is JBoss code different from a very, very long formula? It isn't in fact any different.
Of course, one cannot easily convince legislature of this, because the moment they see a computer, they think "machine" - which is true. And, writing software sure is technical, no doubt about that (because these algorithms are required to work, of course). However, the end result is and always will be just math.
Granted, when software is used with some particular device, together these things may in fact be "a machine", a "technical invention". But, last I checked, Red Hat are not shipping any of those. And yet, they are being on the receiving end of lawsuits, because some moron decided somewhere that even on its own software is more then just algorithms.
Yes, these are very subtle arguments, not easily conveyed to someone not familiar with the field.
Banning SW patents disables patent system? Posted Nov 15, 2010 5:08 UTC (Mon) by FlorianMueller (guest, #32048) [Link] Ah, yes, that is the trick they use. I wouldn't call it a trick. I would look at it non-judgmentally. There's no doubt that if government wants, it can grant exclusive rights on anything, from lotteries to patents. Economic operators will obviously seek such exclusive rights and will try to meet the criteria established by the government. That pursuit isn't illegitimate per se unless they use outright lies or bribery to get their way. There may be conflicts between different legal concepts, such as between intellectual property rights and competition rules, and those will then have to be sorted out from time to time. How is JBoss code different from a very, very long formula? It isn't in fact any different. [...] Granted, when software is used with some particular device, together these things may in fact be "a machine", a "technical invention". But, last I checked, Red Hat are not shipping any of those. And yet, they are being on the receiving end of lawsuits, because some moron decided somewhere that even on its own software is more then just algorithms. A computer running that software becomes a Java application server that has certain technical characteristics and you seem to agree on that. But from a legal point of view you can't say that the machine is protected as a whole while everyone can circumvent the law by shipping individual components separately. That's why what you say about them providing only the software can't be the criterion. If you want to address the issue, you have to convince politicians that the essence of those inventions shouldn't be patentable. To do so, you have to convince politicians that on the bottom line it would be better for the economy not to have that protection even though industry in general demands it and will be up in arms once there's any attempt at abolition. There are formulae everywhere, but like I said above, government can grant such rights and will do so (and in this case is actually doing so almost everywhere in the industrialized world) if that seems politically opportune. Yes, these are very subtle arguments, not easily conveyed to someone not familiar with the field. Even if you could get every single member of Congress or of the legislative institutions of the European Union to understand that, you still wouldn't be any closer to abolition because politicians decide a matter of economic policy based on what works for the economy. The patent system as it stands -- one that grants patents on inventions found in a Java application server -- exists and the economy at large fully supports it. That's infinitely more important than any philosophical argument about mathematical monopolies, even if the latter were understood by everyone. Do you think politicians will decide on philosophical grounds what kind of business they do with China? They obviously look at economic facts and political realities. Pragmatism, not philosophy.
Banning SW patents disables patent system? Posted Nov 15, 2010 5:45 UTC (Mon) by bojan (subscriber, #14302) [Link]
> But from a legal point of view you can't say that the machine is protected as a whole while everyone can circumvent the law by shipping individual components separately.
I will state that simple fact again. How can a company that ships algorithms recorded in a file be sued for what someone potentially may do with those algorithms? It is a nonsense.
> Economic operators will obviously seek such exclusive rights and will try to meet the criteria established by the government.
That is the crux of the problem, actually. Nobody (by which I mean very few) in their right mind will give up on having a monopoly. (That's why you're not seeing great support from business to get rid of patents - they always think they will be the ones that land that lucrative monopoly themselves.)
As I stated elsewhere, convincing politicians is a game of convincing them that they will not get re-elected next term (since you mention China - this doesn't apply there, obviously - not a democracy). And this involves convincing their voters that they are getting ripped off.
Yes, that's much harder to do. And yes, most people couldn't care less, mostly because they don't understand they are in fact getting ripped off.
What I'm saying about software being maths only applies in the context of current rules, which are already rubbish. However, these rules supposedly say maths is not patentable. Well, that was dropped long, long time ago for sure. So, pretending that the government set rules and that those rules are being followed is nonsense. Monopoly holders will always, _always_ seek to expand their monopolies. It like sharks smelling blood in the water.
So, just like Statute of Monopolies was a progressive law in 17th century (because it made monopolies more fair), it is time for something like this again. Otherwise, we've learned nothing from history.
> They obviously look at economic facts and political realities.
Some people believe there would be economic doom and gloom should governments decide to get rid of monopolies such as patents. I do not take this view. It is in our nature to want new things. It is in the nature of business to want to make bigger profits. When these two are put together, innovation is inevitable.
Banning SW patents disables patent system? Posted Nov 15, 2010 5:52 UTC (Mon) by FlorianMueller (guest, #32048) [Link] Just like you, I would like to see governments have the courage you describe at the end of your comment, but what I want is separate from what I consider feasible.I will state that simple fact again. How can a company that ships algorithms recorded in a file be sued for what someone potentially may do with those algorithms? It is a nonsense. No, it's the way patent law works in all areas, not just software. There's a concept called contributory infringement. Obviously there's a limit to that. The utility supplying electricity can't be held responsible for you using it to execute patent-infringing software. In that case, there isn't enough of a connection between what they supply and what you do. But if software is provided that turns a computer into a Java application server, then the connection is pretty strong. This isn't a perfect analogy, but think of a ban on gun imports. It won't affect those importing commodities such as iron. However, if all you have to do to work around the ban is to ship two parts of the gun separately, then the import ban doesn't work at all.
Banning SW patents disables patent system? Posted Nov 15, 2010 6:13 UTC (Mon) by bojan (subscriber, #14302) [Link]
> This isn't a perfect analogy, but think of a ban on gun imports. It won't affect those importing commodities such as iron. However, if all you have to do to work around the ban is to ship two parts of the gun separately, then the import ban doesn't work at all.
This is banned for entirely different reasons, such as safety of human beings.
> There's a concept called contributory infringement.
Yes. However, I would think that the _major_ principle of patent law would override any such claims. And the major principle of the patent law is the subject matter of it: maths not included.
Following current logic, one should be prohibited from publishing the books that explain patented methods (never mind that this is supposedly the _goal_ of the patent system), because this may "contribute" to someone building an infringing machine. It's bullshit - you know it, I know it and the courts know it. But, through the rules of precedent, it's too late.
You see, patent holders (in the current system), can always sue the people that actually _implement_ those Java machines you're talking about. Yeah, I know - that's not as convenient for them. Well, tough luck, eh?
Bottom line, even under the present rules, the system is rigged in favour of the ones that hold such monopolies. Things are laid out for them in such a way that they can go after big targets easily. Well, yeah - they worked really hard to convince the courts they need "protection".
Banning SW patents disables patent system? Posted Nov 15, 2010 6:41 UTC (Mon) by bojan (subscriber, #14302) [Link]
> Java machines
And let me just point out one other important fact. If, indeed their "technical invention" is _not_ just software, they should be able to sue whoever manufactured the computer this whole thing is executing on. They are, after all, contributing to infringement just like Red Hat. If, on the other hand, the patent holder cannot do that, it means their "technical invention" is just software, which means, it's just maths.
But yeah, all common sense is being thrown out, just to protect poor patent holders. I have a tear in neither eye...
Banning SW patents disables patent system? Posted Nov 15, 2010 6:50 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
What you just called "common sense" is actually a belief, a dogma. You say no one should have a monopoly on certain kinds of solutions. You're perfectly entitled to that belief. But I wasn't talking about whether one may hold that belief. I was just talking about whether one can prevail in politics on that basis. If you want politicians to do something for you, you have to do for them what enables them to do it. In this case, if you want software patents abolished, or even many or all patents abolished, you have to show that the current situation is harmful and that your proposal would be a better solution. In an area of economic policy, no one cares about philosophy but just about what the economy needs. Since there isn't serious resistance by businesses to software patents, it's clear to politicians that the problem is a philosophical rather than practical one. People don't like those patents and they don't like those patent "trolls" and they may not like the idea of Oracle suing Google, and they may believe that the freedom of software is more important than any other kind of freedom, but none of that is a convincing concept for making the knowledge-based economy work more efficiently.
Banning SW patents disables patent system? Posted Nov 15, 2010 7:19 UTC (Mon) by bojan (subscriber, #14302) [Link]
"Common sense" I talked about is the interpretation of current law, which does not allow patents on maths. It has nothing to do with any beliefs I hold or any dogma. It is just that when the precedent was set, this cardinal rule was thrown out.
In terms of policy making, in a democracy, citzens vote, not businesses. Asking businesses what they want has some merit, but ultimately governments govern in the interest of general public. As I already explained (multiple times), the change will have to come from general public. We are probably too far away from that point right now, because other, more pressing issues are on people's minds. And in the end, people deserve the government they get.
Banning SW patents disables patent system? Posted Nov 15, 2010 7:45 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
Your clarification is helpful per se, but those two things (interpretation of current law and new legislation) aren't nearly as separate as you suggest.
The judges don't do anything illegal and not even a "contra legem" (against the law) interpretation here -- not in the US, and not even in Europe. They just interpret very narrowly the existing exclusions you refer to. Just like you, I would like to see them interpret them more broadly. But the way this system works is that if the law leaves wiggle room to the judges and the sovereign (We, the People) doesn't agree, then the law must be modified to the effect that there's less wiggle room and that undesirable interpretations of the law come to an end.
Banning SW patents disables patent system? Posted Nov 15, 2010 8:09 UTC (Mon) by bojan (subscriber, #14302) [Link]
Lawyers are not engineers, so they are not all that precise. In mechanical engineering, for instance, you cannot fit a steel machine part that is 1 mm too thick into that smaller hole - it just doesn't fit. Lawyers have no such problems - legal arguments are more open to, shall we say, stretching.
However, along the way they sometimes open themselves up to critique from us engineering types, who find that some of their rulings violate the very principles they are supposed to be upholding. They use fancy words to explain such positions, in the process redefining what maths is etc. But it all boils down to one thing - who or what are they doing this for.
My only hope is this: what used to be generally acceptable some years ago is challenged today. What is acceptable today will be challenged in the future. I am an optimist: I believe societies do become more free over time.
Banning SW patents disables patent system? Posted Nov 15, 2010 8:13 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
Again, I'd like to see the same outcome as the one you outline. But let me correct you on lawyers not being engineers. I know many patent lawyers with an engineering background, such as @BytePatent on Twitter who did assembly language programming back on the Apple ][. Where I live, patent attorneys need to have a full engineering degree and then they get three years of legal studies on top. Also, in my country, the Federal Patent Court has many technical judges: engineers who act as judges. And nevertheless they grant software patents.
Banning SW patents disables patent system? Posted Nov 15, 2010 8:34 UTC (Mon) by bojan (subscriber, #14302) [Link]
It is not their education that is making them one type or the other. In law, you don't have to obey the laws of physics! So, ever so slightly, lawyers bend the meaning of words until they bear little resemblance to what they were supposed to mean. A person practicing engineering cannot afford any such thing. If I stuff NULL into a pointer and attempt to dereference it, I'll get a segfault - that is a certainty.
Banning SW patents disables patent system? Posted Nov 15, 2010 8:35 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
The law isn't binary. It's more like fuzzy logic.
Banning SW patents disables patent system? Posted Nov 15, 2010 9:29 UTC (Mon) by bojan (subscriber, #14302) [Link]
Yes, a little bit too fuzzy. So, we get things like maths != maths :-)
Banning SW patents disables patent system? Posted Nov 14, 2010 20:42 UTC (Sun) by cmccabe (guest, #60281) [Link]
> More fundamentally, the problem is a "systematic" one: software patents
> describe inventions that are structurally the same as other technical > inventions -- and those other inventions now increasingly include > computing technology. Software patents in terms of patents reading on > software don't even necessarily claim software in their wording, but > software can infringe them (at least on a contributory basis). So it's not > as simple as just saying "software isn't patentable" because the presence > of software in the claims isn't a useful criterion. There's no way to > really draw a line without collateral damage. You would basically have to > reduce the patent system to molecular pharmaceutics in order to have > criteria in place that software patents can't fulfill.
I keep hearing certain people say that "software patents are the same as all other patents." Yet clearly before 1991, software and business method patents did not exist. There have been several decisions since then that have expanded or contracted their scope (State Street Bank in 1998 and Bilski in 2008 come to mind.) So even if the distinction doesn't exist in your mind, it does exist in the minds of the patent examiners and judges. It's not unreasonable to think that the Supreme Court could invalidate the whole stinking mess, much like it threw out the McCain-Feingold campaign finance bill.
The prospects for invalidating software and business method patents through the legislature is dim. It's the same reason why Congress buys $100 toilet seats or coddles the US sugar industry. Once a corporate giveaway starts, it's self-perpetuating. The big corporations that benefit can give back to the legislators in various ways to ensure that the monopoly, or subsidy, or other giveaway stays in place. The general public is usually none the wiser about what is going on. But you are not helping the issue by urging apathy.
Banning SW patents disables patent system? Posted Nov 14, 2010 23:57 UTC (Sun) by slashdot (guest, #22014) [Link]
It seems to me the biggest problem is that the standard of non-obviousness is WAY too low: in general, almost all software "inventions" are actually obvious or easy to conceive, but they seem to be granted anyway.
How about only granting a patent if:
For instance, this will allow patents on pharmaceuticals (they cure diseases), but will prevent almost all software patents.
You could still patents things like a polynomial algorithm for SAT if one is ever discovered, which seems to make sense if you are going to allow any software patent.
A second option would be to just have field-specific patent legislation, and ban patents covering software (and probably hardware too).
A third option would be to make patents unenforceable against anything which consists only of copyrighted content, and is released with a license allowing free redistribution (and users of it).
Banning SW patents disables patent system? Posted Nov 15, 2010 5:20 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
There are two different kinds of approaches that you suggest in your post: increasing patent quality and restricting patent-eligible subject matter.
One is (like you suggest with your five-point plan) to raise the bar for all patents in terms of patent quality. There have been and will continue to be different patent quality initatives. There's certainly a way to fight for patent quality and it's not as pointless as fighting for abolition. However, if you believe you can achieve a fundamental departure and do away with a double-digit percentage of the patents that are granted, it will become almost as hard to accomplish as abolition. Some progress can be made on that front, but you'll have to be realistic about how far you can get. With a reasonable level of expectations, it is however a more fruitful approach than abolition.
Similarly, one can also make progress on the enforcement side, concerning the rights of defendants in those proceedings etc. But again, that would require a realistic step-by-step approach.
Your second proposal is like "those patents are so bad we must do away with them entirely" (in terms of what kind of subject matter is patent-eligible, regardless of the quality of a particular application). That is the approach I once took but for the reasons I explained I have to recognize the fact that no one has ever achieved any legislation anywhere that would have been more restrictive on the scope of patent-eligible subject matter than previous legislation. The patent system is expansive and at the most one can slow it down or stop it at some point, but a trend reversal hasn't been achieved anywhere even though so many people have tried for such a long time.
Your third option -- saying that if there's copyright, there shouldn't be patents on the same thing -- is a point that anti-patent activists have often made but I never subscribed to it. As today's reality shows, it is possible to grant different IPRs that are relevant to one and the same product. But the idea that "if there's one IPR there mustn't be any others" doesn't work. For example, even if your software is copyrighted, you still have to respect trademark rights (another form of IP). Patents protect a different concept than copyright, and it's obviously possible to develop software that respects all IPRs. That's why Red Hat had to do some inbound patent licensing deals such as the one that gave rise to the article we're discussing here.
Also, the argument about making patents unenforceable against copyrighted content isn't useful because it won't happen for lack of political support. No matter which approach you try (unless it's a reasonable one to patent quality and to defendants' rights) you'd have to convince politicians to regulate an area of economic policy in a way that large parts of the economy support and there's absolutely no evidence that the downside of the patent system outweighs the upside (otherwise there would be more resistance by businesses).
Banning SW patents disables patent system? Posted Nov 17, 2010 13:02 UTC (Wed) by Randakar (guest, #27808) [Link]
The biggest problem is that patents aren't effective in achieving their stated objectives.
All other discussion - including the whole discussion surrounding obviousness vs nonobviousness - is futile. We can try to solve the software patent problem, but it will not solve the problem with patents on DNA. We can try to tell courts to use higher standards, but smart lawyers will find ways to subvert these standards.
Patents don't work. They have been proven to not work. They didn't work for steam engines, electricity, the telegraph, or telephone. For a while I thought research into medicine might be the one area that it actually achieves something but as it turns out, it doesn't work there either.
We need to abolish patents. Supplant it with a simple system where innovation is promoted by prizes, like the X-Prize does, if we truly wish the government to promote innovation.
Doing anything else does not actually solve the problem.
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