Kill software patents [LWN.net]

Kill software patents

Posted Dec 4, 2008 16:15 UTC (Thu) by felixfix (subscriber, #242)
In reply to: Kill software patents by dwheeler
Parent article: KSM runs into patent trouble

It seems to me that the problem isn't software patents per se, but obviousness. Almost all the software patents I have seen ARE obvious to someone skilled in the arts, and that applies to a lot of hardware patents too. I have seen hardware patents which add rounded corners, or face hardened steel, or some other trivial tweak which any self-respecting hardware junkie would know about.

What we really need is an emphasis on originality, not a ban on one particular type of patents.

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Kill software patents

Posted Dec 4, 2008 17:31 UTC (Thu) by lysse (guest, #3190) [Link] (7 responses)

Whilst obviousness is an additional problem, it's not the whole problem. Software patents do whole swathes of damage because software is the transliteration of mathematical algorithms. It's the difference between patenting a particular machine that multiplies by the operation of a series of switches and patenting the concept of multiplication itself.

Consider the motivation for introducing patents. The argument usually put is that patents protect the inventor of a machine, who might have invested considerable sums in the development of that machine, from being unable to recoup his costs because someone else has duplicated that machine exactly and can now sell it for only the costs of manufacture, without the need to recoup development costs. Well - the costs of manufacture in the case of software are precisely zero, but so are the costs of development; someone else who develops a broadly functionally similar program is still likely to end up spending just as much (or as little) writing it as the original developer, even if they end up slavishly duplicating every single technique and algorithm of the original. (Moreover, that duplication becomes necessary in cases like file format compatibility, as we've seen... extensively.) In any case, the duplication of software is already adequately protected by copyright law - which, of course, does not extend to mechanisms, which is why patents were seen as required in the first place; copyright law only covers form, not function - but software is form; the function is provided by the machine on which the software runs.

Kill software patents

Posted Dec 4, 2008 17:56 UTC (Thu) by dlang (guest, #313) [Link] (1 responses)

manufacturing cost is not zero (unless you do online distribution).

it's also a very uneven playing field for a well established software company (with extensive distribution, advertising, and name recognition in place) compared to a startup.

as such it's still pretty easy for a large software company to reverse engineer and duplicate the functionality of a small companies product and then wipe out the small company (look what microsoft has done several times)

unlike other industries 'trade secrets' don't work in software because you have to distribute the exact instructions. you can obfuscate things to make it hard to figure out, but a determined person can just look at the instructions that you give to the CPU and see what you are doing.

in physical devices trade secrets can sometimes work because the secret can be in how the device was made.

now I am not arguing that software patents are a good thing, I'm just saying that you arguments for why they aren't are invalid.

Kill software patents

Posted Dec 14, 2008 2:01 UTC (Sun) by lysse (guest, #3190) [Link]

Guess which phrase I intentionally didn't use in my arguments...?

Still, well done; that strawman never saw it coming.

Prose analogy patents

Posted Dec 4, 2008 18:59 UTC (Thu) by dmarti (subscriber, #11625) [Link] (4 responses)

I haven't seen an argument in favor of software patents that doesn't also apply to prose analogy patents. For example, should Steve Oualline's thorough mailbox analogy to explain pointers in Practical C Programming be patentable? If it helps people get pointers and start programming in C sooner, it has immense value--but another author could reimplement it in different words and using newly-drawn pictures without licensing it from the patent department at O'Reilly and Associates. The lack of a patent here means that Steve lacks an incentive to create more prose analogies of value.

Prose analogy patents

Posted Dec 4, 2008 23:23 UTC (Thu) by tialaramex (subscriber, #21167) [Link] (3 responses)

This falls into the trap that got us software patents and a dozen other types of silly "intellectual property" in the first place.

Who says Steve lacks an incentive? It takes a profoundly narrow mind to look out into the world and conclude that (to pick some famous names from the shelves near me somewhat at random) Lewis Carroll, Ambrose Bierce and William Goldman were coldly calculating individuals, writing whatever would generate the maximum income. No, each of them had his reasons for writing, whether a pittance or a fortune was the reward, and in no case is their best work that which an accountant or a lawyer would have said was most certain to be profitable.

When we look historically, we find that the incentive granted by these new monopolies was always an incentive to people who were already rich, to screw people and get richer. The reality of software patents is patent trolls, just as the reality of US prohibition was organised crime and massive corruption in the police and judiciary. When you find yourself making a law to "fix" a problem that didn't exist and the law causes you problems you never had before, it's a bad law and ought to be repealed. And if the courts or the patent officials make bad law by practice where there was no law by statute, drive it out with better laws.

Prose analogy patents

Posted Dec 4, 2008 23:43 UTC (Thu) by felixfix (subscriber, #242) [Link] (2 responses)

I wish I knew how to second this properly. I have never understood why so many people think copyright is a necessity, but I have gotten so used to others thinking it necessary that my brain retreats into thinking of ways to fine tune it, when what it really needs is to disappear altogether. People wrote and painted and sang long before there was any copyright, and people still get together in garage bands and write blogs and create websites and youtube parodies without any renumeration.

I know it would eliminate the GPL, but I also believe that the GPL is only necessary in a world of copyright lawyers. The core idea behind GPL is that it is in everyone best interests to share work, such as the linux kernel, rather than hoard your own copy and struggle to keep up to date with continual merges to keep up with public changes. I have done that too often to think it a viable development method.

Thank you for reminding me again how much I detest the very idea of copyright.

Prose analogy patents

Posted Dec 5, 2008 1:20 UTC (Fri) by bojan (subscriber, #14302) [Link] (1 responses)

> when what it really needs is to disappear altogether

This really is a political problem. A powerful and influential minority convinced governments around the world that keeping their monopolies is a good idea. Well, if people are complaining when the price of petrol goes up, so should they when the price of music, books, films and software does the same. Otherwise, we've go nobody to blame but ourselves.

Prose analogy patents

Posted Dec 5, 2008 1:43 UTC (Fri) by felixfix (subscriber, #242) [Link]

The big money interests are digging their own grave as far as I'm concerned. They build these big life + 95 year fences around their factory work and forget that fences work both ways; not only have they kept their factory work safe from the public, but they have given the public every incentive to do their own work and ignore the factory work. Sooner or later, as Britney has shown, factory work will be so blandized and homogenized that it will only be used for elevators and dentists' offices. All the real popular culture has long since moved beyond their fences and out of their control. I don't know how much is under Creative Commons licenses, but I suspect it will only increase, and the entertainment factories have locked themselves out of that with their copyright fences.