Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them (Wired)

I would personally be happy with an even more narrow change: open source program, instead of program. Proprietary software vendors can then sue each other to their heart's content. :-)

Both the GNU GPL and this suggestion are attempts to PATCH a system that is fundamentally broken. As patches, they can only have a limited result.

Furthermore, this suggestion will never happen because it depends on legislators, and we all know which side of the bread legislators get their butter on. They set these irrational rules up, and profit from these irrational rules.

The solution is obvious: the institution that imposes these irrational rules causes these problems (and many others that dwarf free culture extinction in gravity) so it must end.

But Richard will never entertain that -- Richard believes that the institution which constantly sabotages free culture is a benevolent and necessary institution that he can somehow control and co-opt to get his way. He somehow doesn't see that the threats he sees are directly caused by this institution. So he will forever be doomed to run around putting fires out, trying to find ways to prop up the broken system, fighting a losing battle with the results produced by the very institution he begs for help from.

It is obvious: If you misidentify your enemy, you will necessarily lose the battle. Getting angry at Apple or Microsoft for exploiting some destructive rules, when both these companies and the rules were made and enforced by another institution, is useless and irrational.

Is it any surprise, then, that Richard has spent most of his life fighting numerous causes and lost his battles on most of them? He is fighting the wrong people.

What would be a clearer way to describe this approach? "isolating" or "quarantining" software from patents?

(* non-solutions: raising evaluation requirements, giving more resources to patent examiners, limiting when trolls can attack or reducing how much damages they can ask for. These ideas often come from pro-patent companies, which suggests that they know they're dead-end ideas that won't change anything.)

IBM had, and I believe still has, disclosure journals in which they describe things they do not think worth patenting so nobody else can patent them. Some of the things published in those journals were worth $$$$$$ for both IBM and others a few years later. Maybe we could develop open source versions of these.

The purpose of patents was not promote useful arts by making inventing profitable: if any portion of the patent system is not doing that then something needs to be done. I think this approach would make more progress than any amount of idealism.

Note that can *not* sue someone for copyright infringement if they copy your drug and sell for a lot less because you spent the $$$$$$$$ to develop and get the drug on the market for them. You *can* sue then for infringing your patent on the compound.

Any change that threatens the existing monopolies will be a huge battle to pass, and proposals that attempt to adjust the balance based on utilitarian arguments tend to be decided based on "favors" (i.e. the largest bribe, although it may not be monetary). Although I feel that the utilitarian arguments against software patents strongly outweigh those in favor of them, that matters not to politicians as long as there exists some utilitarian argument that they can point to in order to justify their position. They only need enough justification for a soundbite, not a rigorous debate. Therefore a change like the one proposed by RMS seems unlikely to be successful.

There is another way forward, and that is to embrace the moral arguments to eliminate patents altogether. It may seem crazy; if ending software patents is so difficult, eliminating all patents would seem to be much more difficult. However, moral arguments trump utilitarian arguments. Politicians cannot effectively counter a moral argument by simply pointing at a utilitarian argument. It is simply wrong to make a person legally liable for using their own property in a manner that they would have no reasonable way of knowing infringes on the so-called "rights" of others. Of course there is much more to the moral arguments, but this doesn't seem like the right forum for that discussion so I will leave it at that.

The problem is especially acute for software because ideas are developed so quickly in software, but I find it to be shortsighted to be focusing on a software-only solution.

In a lot of other fields the patent system is way out of touch with the reality, too.

And secondly: What is wrong with patenting some genial algorithm over some drug? Both can be equally inventive.

We need to focus on what is wrong with the patent system in general:

1) Way too many trivial patents are issued.
Maybe the patent office should continue working like now, but then the sociaty and especialy the courts should realize that a patent is not a big inventions, but something which can easily - and very often will - fall in a an actual trial. Maybe the first time a patent is tried at court, it has to be reexamined with a much higher care than was done for issuing it. That way issuing patents will continue as now - i.e. things gets published - but evaluating the actual validity for litigation will be an expensive process, which comes later. A lot of patent holders might realize it is too expensive and drop it.

2) But patents like "using known technology X in Y" should not granted unless it is a non-trivial thing to do. Right now you can get patents for using a known technology in a new field without actually having invent anything in the process.

3) The patents themselves are unreadable. The patent database is supposed to be library of inventions for others to use, not merely a pile of unreadable stuff written by patent laywers. The inventions should be directly implementable from reading the patent.

4) The damages for business is way too high for using patented technology. That means businesses stops developing new stuff because they are afraid of litigation.
The damages payed should only be the value of the technology in the product, not some arbitrary theoretical number of how much money the patent holder have lost. If the patent holder will have to prove or at least argue for how much the technology is actually contributing to the product, a lot of the trivial (software) patents cases will go away, because the patent holder can only get a very small amount of damages.

Essential only "essential technology" in a product should be litigated: Using substance X in a drug is very essential for the product and needs to be protected. But using "swipe to unlock" is no essential and should therefore not be able to draw a lot of damages and therefore worth the efford of littigation.

That is quite an opening. So tell me, how many software developers have been convicted of patent infringement in this war? The claim that it relates to *every* software developer is a bit at odds with the US centric position in the rest of the article.

> Rather, each patent describes some practical idea, and says that anyone carrying out the idea can be sued.

You cannot patent an idea. You need to reduce it to practice. Protesting against patenting of ideas is like protesting against the sky being orange. Statements like this makes me wonder if he has asked a patent attorney first just to avoid barking up the wrong tree.
http://www.uspto.gov/web/offices/pac/mpep/s2138.html

> So it’s clearer to call them “computational idea patents.”
Why is this better than "Computer implemented inventions"?

> That same year, it was estimated that Linux was .25 percent of the whole GNU/Linux system. Multiplying 300 by 400 we get the order-of-magnitude estimate that the system as a whole was threatened by around 100,000 patents.

A recent estimate puts the number of US patents in force at 2.1 millions
http://www.patentlyo.com/patent/2012/05/how-many-us-paten...
This includes arts such as pharmaceutics, mechanics and more. I find it hard to believe fully 5 percent of all patents should relate to Linux. Moreover, after KSR a lot of those patents will probably be invalid.

> I don’t know whether Apple’s patents are “good quality,” but the better the patent’s “quality,” the more dangerous its threat.

Dangerous, in what way? Number of programmers that will go to jail or how hard it is to work around these? Quality as meant by for instance EPO relates to how change the procedures to improve legal certainty.

> We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.

The problem here is what constitutes "generally used computing hardware". Anyone who has worked on embedded systems would know that even embedded platforms are general in nature, the term used is COTS - commercial off the shelf. Much is implemented in FPGA which is also general. Cellphones, covered by a lot of patents, are also general platforms. What then is left?

The problem here is that Stallman brings up a lot of terms such as danger, quality, ideas, generally used computers and more, without providing a solid definition.

If Stallman is concerned about dangers to each and every programmer (as opposed to their employers) why not rather ask for an amendment that patents gives the right to exclude *commercial* use? Many European countries have this clause and allows for educational use of patented technology ( I am simplyfying a bit here).