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Stop talking about "Software Patents" as being special

Stop talking about "Software Patents" as being special

Posted Nov 7, 2012 11:32 UTC (Wed) by simlo (guest, #10866)
Parent article: Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them (Wired)

This community is focused on software patents as being special. They are of course, but not that special:

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.


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Stop talking about "Software Patents" as being special

Posted Nov 7, 2012 14:53 UTC (Wed) by k3ninho (subscriber, #50375) [Link]

Thanks! That set of objections makes it clear what needs to change to make the whole patent system fairer. My preferred hack would be to acknowledge the rate of change in the computing and create a Monopoly Patent for Computer-Implemented Invention which has a short time-span: 3 extensible to 5 years.

I think you should highlight point 4 as the most important, particularly for the US, where patents exist to 'promote useful progress' where instead congress has created a quagmire-like unconstitutional hindrance to entrepreneurship. Non-practising parties should not be able to block someone bringing to market a product which would be covered by a patent held by the non-practising parties.

Readability of patent texts and a swathe of existing patents is a big problem - it requires the patent examiner and the judge deciding on these cases to have a search strategy and a mental process to tie together the corpus into something intelligible. To my mind, that's one of the great challenges for machine intelligence, and the sooner we can dedicate some silicon zetaflops to it, the better. However, when we do, we will need to specify the disclosure of the invention in some machine-readable language to simplify the tests for novelty. In that setting, you can clearly see that there is no 'machine or transformation' where an algorithm alone is claimed.

K3n.

Stop talking about "Software Patents" as being special

Posted Nov 7, 2012 15:57 UTC (Wed) by pboddie (guest, #50784) [Link]

My preferred hack would be to acknowledge the rate of change in the computing and create a Monopoly Patent for Computer-Implemented Invention which has a short time-span: 3 extensible to 5 years.

I think that people have to step back and ask why we're giving people monopolies on anything at all. Normally, monopolies are highly undesirable things: imagine how popular you'd be if you stipulated that only Dell could sell computers in your country, only Ford could sell cars, only AT&T could provide mobile services, and so on. The question that comes to mind is "What benefit does society get from granting this favour?" and the answer often appears to have something to do with someone benefiting, but not society.

At the risk of dredging up another political discussion, having a patent bureaucracy tracking every man and dog's monopoly entitlement claim, along with the disputes resulting from such claims, is a huge waste of resources not dissimilar to having a huge tax bureaucracy because people can't work up the courage to reform the tax system properly, and so instead of simplifying the system and risking an unforeseen loss of revenue, more loopholes and concessions are tacked on to ease the tax burden and make the system seem kinder. Naturally, this only helps those who have the time to waste or the money to spend on accountants, and so we all know who benefits from such meddling.

Ultimately, such bureaucracy and the associated baggage starts to drag everyone and everything else down with it. Even countries with money to waste on such work-creation schemes would be better off putting those employed in such schemes into more productive employment.

Stop talking about "Software Patents" as being special

Posted Nov 7, 2012 21:15 UTC (Wed) by dlang (subscriber, #313) [Link]

> I think that people have to step back and ask why we're giving people monopolies on anything at all.

This is a very good thing to keep in mind.

In the case of patents, the reason for giving people 'short' monopolies on something is that without doing so, the people would instead use the invention as a "Trade Secret". A Trade Secret, if maintained is worse than a monopoly. Not only does only one company ever use it, but that one company is the only one to EVER use it. A Trade Secret never expires, and if the company folds (or the inventor dies), that invention may be lost and need to be reinvented independently.

If an invention is simple enough that waiting for it to be invented independently is not a big deal, then it should fail the tests for being "novel" and "not obvious to someone normally skilled in the field". As noted above, one problem with the patent system today is that these criteria are not being enforced, so low-quality patents are being granted.

Stop talking about "Software Patents" as being special

Posted Nov 8, 2012 13:11 UTC (Thu) by pboddie (guest, #50784) [Link]

The lost knowledge argument is a potent one, and one we really have to address in any effort to advocate the elimination of patents in some fields or in general. There are alternatives to patents as rewards, of course, such as prizes where the government (or society, if you hate the g-word!) effectively pays for the knowledge to be freely available to all, which I seem to recall being the case for things like photography and other work done in the nineteenth century and earlier.

One interesting recent case of the use of trade secrets instead of patents was brought up by Elon Musk in an interview about SpaceX:

http://www.wired.com/wiredscience/2012/10/ff-elon-musk-qa...

In effect, SpaceX sees no merit in patents because they would supposedly allow competitors in places where patents are unenforceable to "use them as a recipe book" and thus undermine SpaceX's cost advantage. Advocates of widespread patenting and universally enforced patents might argue that this could give SpaceX an effective monopoly, too, if the company became a dominant actor in commercial spaceflight.

But even a patent system that is "ideal" according to the expectations of patent advocates might not persuade SpaceX to participate or produce the kind of licensing that would be most beneficial to society - a phenomenon we are all now familiar with in our own field, of course. And as soon as one gets into compulsory licensing, one might as well start considering doing away with patents altogether and implementing some of the alternatives.

Stop talking about "Software Patents" as being special

Posted Nov 8, 2012 19:39 UTC (Thu) by dlang (subscriber, #313) [Link]

There are always going to be some companies that choose secrecy over patents. Coca-Cola has built quite a company around a trade secret formula.

The existance of a few such companies is not a problem, but you are right, where a large percentage of companies cling to secrecy, there is a problem.

A good example of this is the current GPU market, just about everyone is keeping the details of what they are doing secret, in spite of a large number of patents being filed.

Stop talking about "Software Patents" as being special

Posted Nov 8, 2012 21:19 UTC (Thu) by Cyberax (✭ supporter ✭, #52523) [Link]

Coca-Cola is a bad example. A good lab can easily reverse-engineer Coca-Cola's formula, with moderate expenses.

It just makes no sense to do this. Nobody would buy your drink if you market it as: "Tastes exactly like Coca-Cola!"

Stop talking about "Software Patents" as being special

Posted Nov 7, 2012 21:05 UTC (Wed) by dlang (subscriber, #313) [Link]

> Non-practising parties should not be able to block someone bringing to market a product which would be covered by a patent held by the non-practising parties.

This is a tricky point.

Patent Trolls, who exist only for the purpose of fileing lawsuits are a problem.

But how do you officially tell the difference between a Troll (who has no intent of ever building anything) and an underfunded Inventor's company who wants to build the invention, but has not done so yet, or has not gotten it to market yet?

Stop talking about "Software Patents" as being special

Posted Nov 8, 2012 17:00 UTC (Thu) by k3ninho (subscriber, #50375) [Link]

>But how do you officially tell the difference between a Troll (who has no intent of ever building anything) and an underfunded Inventor's company who wants to build the invention, but has not done so yet, or has not gotten it to market yet?

It's a tough problem. I suspect it's as difficult as discerning whether Schrödinger's cat is dead. UK patent law has provisions for the victim of a non-practising entity to claim relief and a license-as-of-right where a non-practising entity can be shown to block the market with a patent. However, it's never been contested. You'd have to use forecasts to show that you're having revenue denied to you by not being in the market with a product which embodies the patented method or device; you'd have to have struggled for that for 3 years; you'd have to waste time you can't recover by knowing what the non-practised patent is in the first place. In the end, maybe you can recover some revenue for this, maybe not.

K3n.

Stop talking about "Software Patents" as being special

Posted Nov 8, 2012 19:35 UTC (Thu) by dlang (subscriber, #313) [Link]

It also seems like something that the troll companies could game easily, with all the lawyers they are paying, they could easily scrape together enough money to pay one developer part time and claim that they are working to produce a product.

Stop talking about "Software Patents" as being special

Posted Nov 8, 2012 22:43 UTC (Thu) by pboddie (guest, #50784) [Link]

I seem to recall an article, in which one such company was featured, where the trick of feeding the easily-impressed amongst the media the impression of genuine, non-litigious work being done appeared to be already well-established, eliciting observations that "these people are really inventing stuff - they have people in lab coats with test tubes!"


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