A patent on an invention that many people would easily develop independently of one another should not, it is argued, be granted since this impedes development. [1]
1. https://en.wikipedia.org/wiki/Software_patent#Obviousness
They exist to grant someone a monopoly in exchange for them sharing their invention with the world. If I patent a dishwasher that does not clog, I will be rewarded for my invention... But once the patent expires, a skilled engineer will be able to look at my patent, and build a dishwasher that does not clog - in far less time then it took me to build mine.
The overwhelming majority of the time, Software patents grant someone a monopoly, in exchange for them sharing nothing remotely useful to society. Looking at that software patent will not save another engineer any time whatsoever, in cloning my product.
With that kind of patent, I am using the legal system to enrich myself, without giving anything back.
Most don't, though.
Something like MP3 or h265 represent nontrivial investments in information theory, and I'm basically okay with patents granting a (temporary) exclusive licensing period in exchange for sharing the practical code and theoretical work.
Patenting something like "one click ordering" or "facilitating inter-personal communication by sending audio over the internet" is just ridiculous.
In your software-patentless world, why would a genius choose to work in software as opposed to another field inventing patentable tangible objects where he or she will be monetarily rewarded for it and able to make a living? Don't say you are already paid by your employer to program. Someone inventing physical objects would probably also be already paid by their employer to work. This brings us back to why would a genius choose to work in a field that won't reward them for their genius?
If you don't want to reveal your design, you could always keep it a trade secret.
If you're a genius working on software, you shouldn't have trouble filing a patent that would be useful to another engineer, once it expires. For some reason, though, people instead patent stupid shit like 'a software system that does _______.' They don't actually explain how to build a software system that does _____, they don't give anything back to society, and are instead leeching of the largess of our legal system.
If you want protection for your invention, tell us how it works. It's a pretty simple concept.
1. Trolls use them to seek rent from independent creations.
2. Companies that are not purely trolls but need a vector to attack another company sometimes use them in the same way trolls do.
3. Entities that actually make software use them as a deterrent against patent claims.
Nobody actually depends on them for the profitability of software they've made, and nobody actually benefits from the disclosures in expired patents. Software patents are purely weapons. The hypothetical genius you're talking about would not be harmed at all if they went away, and would be better off because they'd be spared the vicissitudes of patent trolls' attention.
This is pretty much what is happening with speech recognition these days among other things.
No need to worry about opensource, or the fragility of patents, when you keep your technology a secret.
Another approach is to use trade secrets - you encrypt parts of your application - reducing performance - enabling you to sue anyone who decompiles it in order to replicate, or indeed interface with it.
Patents would actually seem the least of these evils, if they were only less broken.
But I don't see that the two descriptions are different in practice. Patents incentivize publicly releasing an invention instead of keeping it a trade secret (or letting it languish). The problem this is solving is that ideas aren't valued by the market, only products. But society benefits from ideas independent of products. And so the solution is a system to put value on ideas, ergo patents. This meshes with my alternate description.
>To be clear, I didn't say that's what patents are for (i.e. their purpose), but what they correct for, i.e. what they do in practice.
Also, PageRank clearly doesn't need a patent. Google's done just fine against competitors that have ripped off their technique.
How do you do that?
The first person to think of the concept of "self-driving car" gets the patent? That will just lead to a flood of patents on things that don't exist yet -- basically a patent troll's dream.
Perhaps the first company to build a working prototype? What happens to all the other companies that almost have a working prototype -- do they now have to sit on the sidelines for 10 years?
How do you even know what a "working prototype" is in that scenario? Is it acceptable if it is just capable of driving on straight roads during sunny days with no other cars or people around?
I think patents on specific, narrow pieces can make sense: for example a laser-based 3D vision system, or a specific algorithm that identifies people about to walk in front of the car (even that is tough, because there's a thousands of very distinct approaches to that problem).
Patenting the entire system (the "self-driving car") makes about as much sense as say, Herman Miller patenting the concept of a wheeled office chair. They can patent elements of their lift mechanism, specific wheel designs, or arm adjustments, but not the concept of combining wheels and a place to sit.
Copyrights are sufficient. You shouldn't be able to tell someone they can't use a certain software algorithm in their own program, in a different language, in a different domain. That stifles innovation.
Thankfully, software patents are unenforcable in most of the world and willfully ignored by large parts of it.
If a physical machine is not under patent protection you can strait up copy it and start manufacturing your own version. With software you have to go through an extra "clean room" step to get around copyright. In practice the clean room reverse engineering process is rarely utilized because it is expensive and fraught with the risk of a lawsuit from the copyright owner.
That means that copyrights can be exerted in very menacing ways, like requiring users to bypass a copy protection mechanism in order to do required maintenance, as John Deere has done. That enables John Deere to pursue anyone who doesn't use an official dealer for maintenance under the DMCA's measures criminalizing the circumvention of copy protections.
Disclaimer: Not a lawyer, probably wrong.
The scope of a patent is much broader than a single coded implementation. The copyright doesn't protect the functional aspects of the code, it only protects it as a written work. However, companies have managed to twist the concept of infringement via reproduction, and bypassing of copy protection.
Accessing a copy of code stored in memory is now considered creation of an unauthorized reproduction, bypassing copy protection under DMCA, and/or the like.
This type of protection shouldn't exist apart from preventing partial and wholesale copying and redistribution, paralleling the treatment of novels, etc. If I own a novel, I can do whatever I want to do with that book. I can write on it, annotate the margins, remove pages, make photocopies of parts of the book for personal use, etc.
With code, I can't do this? Why?
In cyberspace, many things that should be considered "inventions" for IP purposes, and thus subject to the much more limited extent of patent protection and for which each individual unit is an unprotected entity, are instead considered "new copies" of a copyrighted work, under which substantially more aggressive licensing restrictions are typical, and under which the definition of things like "infringement" and "derivative" are much more restrictive.
A software program should be an invention under patent law, and its copies should be considered discrete physical units. The code itself may be copyrighted, just as the plans for an invention may be, but the produced binaries probably should not be. Rather, they are units of the invention regulated as normal goods.
This has become even harder as we have gone to mostly-digital software distribution. You used to be able to easily resell software if you had a CD. Now you can't even do that (which, by the way, is no small motive for the companies; it completely obliterates the secondary market for software).
IANAL
However, any physical machine or process can be reduced to the laws of physics, and you can't patent the laws of physics as far as I know. I don't think "reduced to mathematical formulae" is in itself a great argument.
Should the jacquard loom have been granted a patent?
It seems like the old pattern of "Patent a certain method of weaving brocade", then later "Patent a certain method of weaving brocade...on (mechanical) computers!"
To the original objection that you can't patent math, I think some countries do disallow software patents, don't know if it's that reason or something else. But if they can disallow because math, shouldn't they disallow all patents because physics?
German patent law for example has had the term "Technizität" as a neccessary property for a patent to be valid.
https://de.wikipedia.org/wiki/Technizit%C3%A4t
Money quote from the BGH (German Supreme Court): "Als patentierbar anzusehen ist eine Lehre zum planmäßigen Handeln unter Einsatz beherrschbarer Naturkräfte zur Erreichung eines kausal übersehbaren Erfolges." (GTrans:"To be considered patentable is a doctrine of planned action using controllable natural forces to achieve a causally overlookable success." :) )
i.e. You gotta use physics in your patent.
I have been coming back to this time and again, and today I still see it as the least shitty definition in regard to what should be patentable and what shouldn't.
Other national patent offices in Europe have used similar demarcation properties and it had served them quite well...until the degradation of patent standards started here as well around the turn of the millenium, with the first act being the EPO starting to issue software patents in rather blatant violation of its mandate.
Patents exist to promote novel applications of physics and chemistry, but do not forbid use of the fundamental laws, and should not forbid use of fundamental mathematical or algorithmic processes.
If you can violate a patent in your mind, it shouldn't be granted.
In Europe at least maths can't be patented but applications of maths often can, just like software can't be patented as such but if it has real-world technical effect it can.
A new rocket launch trajectory may be "just maths" but if it reduces fuel consumption then it arguably isn't "just maths" and so will probably gain a patent.
This approach seems compatible with the quid pro quo intention of patents.
Only because we've decided so. In the United States, for example, you can copyright the law.
There are two fundamental discussion schemes about software patents: (1) can we patent something that can be described as a mathematical concept and stuff. and (2) why would you want to patent software in the first place.
The first discussion is tricky. Comparing algorithms to mathematics, having patents that can be expressed through mechanical OR software, etc.
The second discussion is IMHO getting back to basics: Why do you want patent in the first place ? Why, in our free market universe, do you want to give to a restricted number of actors a monopoly ? Why not competition ? After all, if your neighbor decide to put a lemonade stand in front of your garden, and even if you didn't thought about this idea before, you are free to imitate/copy/replicate its business. Patents are inherently anti-free market.
To answer to this, you need to get back in time, and understand the reasons that led our ancestors to create patents: some technological inventions were extremely expensive, hard to copy, and companies were spending an unreasonable amount of money in them, say, to re-invent steam engine. This led to this bizarre exception, at the very condition that it would be limited in time, and really have a positive impact on the market (ie. NOT for the companies filling patents as sole incentive)
In software, there is no reason to allow patents. Don't get me wrong - a very very tiny fraction of software could be seen as needing patents (mpeg algorithms are often cited, probably engine injection algorithms too). But most of algorithms can be replicated by a bunch of engineers in an office. This is neither expensive, nor requiring specific provisions.
TL;DR: Software industry does not absolutely need patents, and because patents are very strong anti-competitive provisions, it should not be allowed in this industry unless there is a clear reason.
There are no such newest and greatest algorithms that are private and covered by patents. This is an illusion.
Do not underestimate the importance of software patents. It is wise to build a defensive patent portfolio.
I know this is no fun for people who are ideologically opposed to software patents, but as in most competitions, if the ruleset allows this advantage and you refuse to exploit it, you will lose to someone else who is less squeamish. There is absolutely a real lowest-common denominator effect that applies here.
If you want your startup to be acquired, you need something that a potential acquirer can't easily circumvent; that means a brand with user loyalty or intellectual property. Anything else in the software realm, Google et al could easily replicate it within a reasonable timeframe by assigning a small team to do so.
An artillery of your own ambiguous or general patents can also prevent lawsuits from others.
These are the rules of the game today, and if we want to play the game, we need to use this rule to our advantage. If we hate the rule, we need to find an effective way to petition Congress to change it. This usually means demonstrating how the current law is a clear risk for the only stakeholders Congress cares about: massive companies (particularly, major employers within their constituencies).
A lot of stuff that should be legally risky for big companies isn't, because the legal system is so convoluted and expensive, that they know only another well-capitalized company could successfully pursue a suit under such grounds. Since the big companies are generally advantaged by not "poking the bear" and instead accepting one another in a type of stasis, they avoid filing potential landmark cases that would dispense the legal ambiguity and strip the advantage against upstarts away from both parties.
"Don't hate the player; hate the game".