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The FTC weighs in on patent reform (opensource.com)

[Posted April 26, 2011 by jake]

Over at opensource.com, Red Hat's VP and assistant general counsel Rob Tiller writes about a US Federal Trade Commission report [PDF] on some of the problems with software patents. "The FTC report recognized that in the IT industry, it's virtually impossible to do clearance searches to verify that new products don't infringe existing patents. The lack of clarity in individual patents combined with the sheer numbers of existing patents make clearance cost prohibitive. Because IT products can contain a large number of components that might each be covered by one or more patents, the number of potentially applicable patents is also large. The report went so far as to characterize clearance as 'a virtual perfect storm of difficulties.'"
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And their 2003 report

Posted Apr 26, 2011 23:17 UTC (Tue) by coriordan (guest, #7544) [Link]

The FTC also published a great report in 2003 which condemned software patents:

http://en.swpat.org/wiki/US_FTC_report_on_innovation

The FTC weighs in on patent reform (opensource.com)

Posted Apr 26, 2011 23:34 UTC (Tue) by s0f4r (guest, #52284) [Link] (1 responses)

Biggest understatement of the year?

The FTC weighs in on patent reform (opensource.com)

Posted Apr 27, 2011 10:56 UTC (Wed) by Seegras (guest, #20463) [Link]

Aye. It's like they're telling us "we might have a problem with prohibition", while the whole state is already run by the Mafia.

The FTC weighs in on patent reform (opensource.com)

Posted Apr 27, 2011 13:17 UTC (Wed) by staff (guest, #74562) [Link] (6 responses)

"virtually impossible to do clearance searches"

Get real. If a multi zillion dollar corp doesn't know what the state of the art is in their field, that's just too bad. The FTC should focus on their mandate -antitrust. Perhaps they've forgotten how. Maybe it's time to close the FTC if it can't do the job it was intended for?

The FTC weighs in on patent reform (opensource.com)

Posted Apr 27, 2011 13:24 UTC (Wed) by tao (subscriber, #17563) [Link]

Not all IT companies are "multi zillion dollar" corporations. Most are fairly small.

I'll pull a figure totally out of the blue and say that at least 95% of all apps in the iPhone app store violates at least one patent (probably 100% and probably a lot more than one patent).

Also, it's hard to do a patent search even for a really large company with huge amounts of IPR lawyers. The main reason is that not only is the body of sw patents extremely large (mainly due to cover patents), these patents also get interpreted quite widely, and often you need to read the patents through-and-through to fully fathom its ramifications -- the summaries are rarely sufficient.

The FTC weighs in on patent reform (opensource.com)

Posted Apr 27, 2011 13:41 UTC (Wed) by renox (guest, #23785) [Link]

>> "virtually impossible to do clearance searches"
> Get real. If a multi zillion dollar corp doesn't know what the state of the art is in their field, that's just too bad.

So you mean that software development is now restricted to multi zillion dollar corp because only them can do those clearance searches?

I remind you that patents are supposed to be a benefit for the society, I fail to see how restricting development to big zillion dollar corps is a benefit.

And for software development in general, I cannot see any hint that software patents were a benefit to the society..

It's not about state-of-the-art

Posted Apr 27, 2011 13:46 UTC (Wed) by coriordan (guest, #7544) [Link]

Some parts of the state of the art are patented, others aren't.

For clearance, you have to know what's *patented*. Below is claim #1 of the patent the Google got stung for. There's no way any software developer, big or small, could know all the claims of the tens of thousands of software patents out there, *and* know all the details of the functionality of the software they ship so that they can do cross-analysis to find infringements.

a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring, a record search means utilizing a search key to access the linked list, the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed, and means, utilizing the record search means, for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list.

The FTC weighs in on patent reform (opensource.com)

Posted Apr 27, 2011 14:45 UTC (Wed) by drag (guest, #31333) [Link] (1 responses)

> Get real. If a multi zillion dollar corp doesn't know what the state of the art is in their field, that's just too bad.

Duh. This is by design.

Large corporations often support software patents because it creates artificial barriers for competition.

That is they can afford to pay millions of dollars in fees to the government, pay millions of dollars in fees to lawyers, million dollars of licensing fees to other major corporations, and millions of dollars in lost lawsuits. They don't give a shit how much it costs really because the pass the costs directly to their customers.

However companies and individuals that are not established cannot afford this and thus they are locked out of the market.

Given the choice between forcing their customers to pay the costs for a fascist system versus having to deal with true capitalistic competition large companies like Microsoft or Apple will choose to pass costs to the public every single time.

The FTC weighs in on patent reform (opensource.com)

Posted Apr 28, 2011 18:26 UTC (Thu) by jhoger (guest, #33302) [Link]

Hear, hear.
All political debates in the U.S at the moment, if they are to have any traction need to be about jobs, and in this case, small business jobs. Software patents are a huge barrier to competition, specifically small vs. large company competition. The case needs to be made that dealing with software patents is actually a way to create jobs.

The FTC weighs in on patent reform (opensource.com)

Posted Apr 28, 2011 16:22 UTC (Thu) by stevem (subscriber, #1512) [Link]

-1, troll

The field is just too large for *anybody* to effectively watch the whole patent space. And then you have to factor in the cost of idiot juries in Texas not understanding the concepts and awarding massive judgements against you.

The patent system is broken, and has been ever since the lawyers got involved and turned it into a job creation scheme for more lawyers.

The FTC weighs in on patent reform (opensource.com)

Posted Apr 30, 2011 3:16 UTC (Sat) by butlerm (subscriber, #13312) [Link]

The recommendations on calculating damages and so forth in the FTC report make a lot of sense, at least in those industries where patent protection is a net social benefit. The first part of the FTC report is mostly a one sided advancement of patent propaganda, unfortunately.

Certainly a government granted monopoly on something is profitable for some people. So is a government granted right to collect tolls on a public freeway. The report doesn't spend any time considering the social cost of those tolls, but rather only such things as how the public can best learn where the toll booths are, so as to best promote the toll booth construction industry.

A large part of the problem here surrounds the mythology of "the invention". There may be areas where patents are granted for things that meet the classical idea of an "invention", the most important one being that no long is likely to independently come up with the idea for decades in the future.

If someone else is likely to independently implement the same idea six months from now, or could circumstantially have been likely to do it years in the past, granting a twenty year monopoly is ridiculous.

In addition, the language in the report about making patentees "whole" for the infringement of others is nauseating. The problems is that the vast majority of patents are an artificial and intrinsically unjust abstraction, and a claim that you have suffered _damages_ because someone inadvertently implemented something similar to your government granted monopoly is fraud writ large.

That is the crux of the issue. The entire patent system is based on the idea that patent grants are somehow just, when most of the time the exact opposite is the case. Most patents are just an unusually obnoxious form of corporate welfare. We would do better just to line their pockets directly, rather than crippling innovation and expression in a whole host of industries.


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