Is this retroactive, i.e., all software patents filed and granted in the past too are abolished?

If 'no', this can bring disadvantage to new comers who cannot file any new patents against those who have already have then granted.

If 'yes', what happens to all the money companies have already spent on the patents they currently have? (International filings in many different countries can set a company back by several hundred thousands of dollars.)

I am open to considering favoring abolishing patents (see also the alternative discussion on why only for software) provided it is applied uniformly to the past as well as the future without disadvantaging new comers.

I do agree that on the very least, the term of the patent should be dependent on the degree of innovation involved whether in terms of time (number of years of validity) or money (maximum amount of gain in proportion to the R&D expenditure). People on HN have generally opposed this thought due to the overheads involved, etc.

It seems to me the way to do it is to establish that software alone (or software in combination with a prior art computer) cannot infringe any patent.

> If 'yes', what happens to all the money companies have already spent on the patents they currently have?

The assumption is that abolishing software patents will have a net positive result. Practicing entities thereby have more to gain by avoiding the future costs of zero sum patent prosecution, licensing negotiations and patent litigation than they have to lose in sunk patent prosecution costs.

The hardest hit would of course be patent trolls with no other line of business, whose dissolution into bankruptcy can only be celebrated. Your concern is like being concerned for the costs incurred by kidnappers in purchasing unmarked vans and securing abandoned warehouses when the day comes that we abolish kidnapping.

We are currently granting 20 year patents. Next year we grant 19-year patents, etc, etc. Past (and current) investors can capitalize on their 'investments', and the USPO and related services (attorneys) have a chance to scale down gradually.

Over time there would be diminishing returns on filing a patent, and players entering the world of software patents are faced with exactly the same world that they now face, except over time things look better.

It seems like the holder of a software patent would really have to have something to get it to stick in such an environment. Because of that potentiality it doesn't seem like an all or nothing proposition to me.

A good canonical example of this is Apple's much maligned "bounce scroll" or slide-to-unlock patents (though Apple is hardly alone when it comes to this nonsense).

Any decent software developer could see either of those in action, having never read Apple's patent and never seen Apple's source code and whip up his or her own implementation in less than an hour. That alone should invalidate these patents.

Some will argue that Apple's original idea was unique at the time, so they should have a patent on those grounds, but that's not what patents are supposed to protect (though massive amounts of money being funneled into lobbying and the legal system have served to obscure this in the past couple of decades).

Patents don't exist to protect ideas, they are supposed to protect unique and novel implementations of inventions, not ideas. There's really not a true legal IP mechanism for the protection of ideas (even copyright is protection of expression, which is closer to ideas, but not quite the same).

This reasoning is deeply flawed. There is a tendency for something to seem "easy" or "obvious" after the fact, but this is ignoring all the insight, effort, and risk it took to find that initial successful path to the solution to begin with. Take a look at the Occulus Rift for example. Two years ago no one cared about VR. Today there are a handful of companies that claim to have a headset on par or better than the Rift. What changed? The Rift proved that it was viable, and now its relatively easy to follow their path to a successful product. Just because a solution is obvious after the fact, does not mean its creation was equally as obvious.

>Patents don't exist to protect ideas, they are supposed to protect unique and novel implementations of inventions, not ideas.

An apple lawyer could easily say that the "idea" here was unlocking of the phone, while the implementation/invention was the "slide to unlock" functionality. Neither is more right than the other.

Edit: would be an interesting experiment to have public downvotes

I don't think any software patents should be granted, but the biggest problem with them in practice is how they are allowed to be written: "a system that does thing X" now is a patent on anything that does thing X, essentially a patent on that idea. Software patents often give the illusion of specificity, but if you look at e.g. the "Siri patent", you see that it really just says it searches multiple databases and displays them in an order based on some heuristic. They're written in a way that it could arguably cover a huge class of inventions, again, essentially patenting an idea, not an invention. This can be especially bad when it gets in front of a jury, as it seems all too reasonable to them that that description does in fact match the competing product in question. Just look at Newegg vs a patent on "A method for transmitting data comprising a sequence of blocks in encrypted form": http://arstechnica.com/tech-policy/2013/11/jury-newegg-infri...

You're missing the point. The issue wasn't that VR now has a viable market (it always did), the issue was that a good implementation was now viable. And its not just that it can be implemented, its that we generally know how they did it. From this perspective, after having seen a fully working prototype, it can seem obvious that VR technology was just on the horizon. My point is this is a fallacy; its easy to say climbing mt. everest is possible when you can look down and see the path someone else just treaded before you. In a similar vein, judging something as "obvious" and thus not patentable after it has been invented is flawed.

Simple things should not be ineligble for patents, and what you are proposing is excluding from patent protection anything that is simple. Also if you're looking at a patent that is in a field that you're skilled in and you can't understand it "ok, it's right in front of my eyes, but what is this magic?" then the patent hasn't fully disclosed the invention and it shouldn't have been granted (or you're just not skilled enough, many patents require vast amounts of knowledge to be able to understand and the "person skilled in the art" may be a team of people).

To take a silly example, let's say I propose a patent on the process of painting a house green. That's the entire text of the patent. Should it be granted? No. In part because I haven't fully disclosed the invention. But what could I possibly add? "Step 1. Cover house with green paint."

A government granted monopoly is a big gun. Far too big if the goal is just to provide you with revenue. Government works for the people, not one company, and if we're going to give you the right to exclusively profit from something, we demand to get something in return. The thing we demand is knowledge. We want to know how you did it so that after your monopoly expires, everyone can benefit from the increase in knowledge. If your "invention" is so simple that we all already know how to do it, then we don't need the "full disclosure" of a patent, and we don't need to buy your description of painting the house green for the enormous cost of having to pay you exhorbitant fees for every green house for the next two decades.

Secondly, you have accurately described the patent system;

> if we're going to give you the right to exclusively profit from something, we demand to get something in return. The thing we demand is knowledge. We want to know how you did it so that after your monopoly expires, everyone can benefit from the increase in knowledge.

But you go off the rails when you confuse simple and known. The point of a patent is to disclose the invention in a clear enough way for someone else to be ablwe to perform it. Once you know the answer, it probably will seem simple. But that does not mean it's not inventive (ie, no one else has done it before, and you qwere the first to have made that knowledge available to the public).

You aren't eligible for a patent just because you did something first.

You might like that to be the case but most of the canonical examples of things that should be patented are just that sort of thing. For example various patents have been granted for paper clips[0]. If it still isn't obvious how it is done after people see it you could argue that the patent isn't necessary - trade secret would do.

[0] https://en.wikipedia.org/wiki/Paper_clip

>> Could I reproduce this patented system without ever reading the patent just by looking at the results of it

> This reasoning is deeply flawed. There is a tendency for something to seem "easy" or "obvious" after the fact, but this is ignoring all the insight, effort, and risk it took to find that initial successful path to the solution to begin with. Take a look at the Occulus Rift for example.

You're right, you didn't explicitly say that Oculus Rift is an example for a system that could be patented because it is more complex than it seems. But if I had wanted to make the point that I believe it is patentable I could have phrased my argument in the same way as you did to imply it implicitly.

> Why are people incapable of comprehending an argument as presented, rather than attempting to make connections that do not exist in the text?

Because communication is always context dependent. It's easiest to see in the extreme ends, for example math, where you invent an entire sublanguage / dsl for precise communication and still your definitions change with the context you are working in: Does a ring contain a multiplicative identity element? Which operations is the homomorphism homomorphic in? We leave out these details, because most of the time it helps communication because everyone is on the same page as you anyway and those extra bits and pieces distract from the core argument. Then there is stuff that the reader is faster to figure out for him- or herself than reading "the proposition is true for the base case n=0 of the induction as (3-0)^2-9=0" or sometimes even faster than "the base case is obvious"

And as far as your Oculus example goes... actually lots of people cared a great deal about VR back in the 80s and 90s. VR was a huge deal back then, it just kinda sucked.

The brilliance of Oculus/Palmer Luckey (which I don't mean to diminish in any way via this post) is recognizing that fundamental technologies (mostly in the form of advancements made for the smartphone market -- which Oculus didn't create themselves) had finally caught up to the point where convincing VR was possible. But the idea of strapping some head-mounted displays onto a system with various gyroscopes and such is very old and the early systems for it looked quite a bit like the Rift at a high level, they just performed much shittier because the fundamental technology wasn't ready yet.

This is similar to tablets where various players like Microsoft and Apple themselves put a lot of effort into them a decade before the iPad came around.

Now that Occulus has proven VR ready for prime time, everyone claims they have a competing headset on par or better than the Rift. Some would use this as evidence that VR tech is "obvious" (again this is simply an analogy, nitpicking on the particulars is the wrong way to address this argument). My point is that this is not evidence for obviousness when your vantage point is after it has been shown it can be done. In fact it will only bias your judgment.

The trade is: we give you a monopoly on the thing, you give us (the public) written step-by-step instructions on how to create that thing.

If instructions aren't necessary to create it — i.e. I can figure it out from just seeing it — then the deal is broken, and isn't serving public good any more.

They're getting their monopoly, what did we get? Zilch.

This is the problem with patent protection in our industry. We can recreate things pretty easily. In say, biotech, it's much harder to figure out.

I'm still behind just scrapping patents altogether though. It's adding process for process' sake. The same feeling you get when you have big section of unnecessary code, and ripping it out has a no effect on the result — patents feel like that chunk of code, before you rip it out. They seem like another area where people have created work for themselves effectively doing or creating nothing. If we got rid of them, not a lot would change, but millions of people would instantly have less weight on their brain.

We get to buy a product that we otherwise may not have been able to. The original purpose of patents is debatable (just read this thread), but one cannot reasonably argue against the current understanding of their purpose, which is to encourage invention. Patents on (some) "obvious-after-the-fact" things encourage invention. Why bother to put in time and effort to invent something when BigCo. will simply roll out their own before you can even bring it to market?

Now I'm not saying all obvious-after-the-fact inventions should be patented, my original argument was against using obvious-after-the-fact as an exclusionary test. One should attempt to judge obviousness before it was proven to be viable using the given method, as an after-the-fact judgement is inherently biased.

He carefully said "without ever reading the patent" to avoid your counter-argument.

Consider: Knowing we could get a man to the moon and back pre-1960s vs. knowing we could implement "bounce scroll" on a cellphone.

The latter example everyone who is a programmer "knew" prior to the iPhone even if they never actually considered it... because the implementation of it is so amazingly obvious. It is nothing but a good idea, and good ideas aren't supposed to be patentable. Which isn't to say they don't get patented, but that's a side-effect of how fucked up the patent system has become in the past 2 decades, not representative of what patents are supposed to be.

I agree; not really relevant to the argument though.

Note that I am not arguing in favor of bouncy scroll patents.

In Software, patents are silly because everything is derivative, and it's very difficult to separate the obvious from the non-obvious. It's not as if most patents are coming from many years of research: Enough eyeballs often would have arrived at the same conclusion.

We'd also still build software without patents: It's just too useful not to keep working at it. Copyrights are more than enough.

So now let's look at a very controversial one where patents make all the difference: Soybean seeds. If I spend 15 years developing a seed that yields better, copyright will not help me. But the minute I sell a seed, you can make as many copies of it as you want. You don't even have to buy the first seed from me, since the seeds themselves are what the farmer sells. Therefore, investing in seed quality becomes something that is extremely hard to do in a for-profit organization, because you have to recoup your entire investment in the first year, as in the second one, anyone that has a field can be your competitor. Patents in the field are also rarely dependent on each other: Different genes can be stacked on a plant, but unless you developed the entire suite of them all at once, it's not as if it's likely someone is going to find a little refinement that they'd love to sell, but depends on a different party's patent to also be on the plant.

So in that field, no IP protection completely changes the game. Investment in soybean seed research becomes a purely government task, as it's impossible to get any ROI out of it.

Now, one can still be against life sciences patents, but it's easy to see how removal of said patents would lower the effort spent on research, while on software, if anything, it'd make it go up, as we'd stop being afraid of doing something that we find obvious, and that someone else found patentable.

So on each field, patents have different dynamics, and should be evaluated independently. I don't think you'll find many pro-software patent people that aren't just pro-patenting everything. And those really don't make any sense.

To play Devil's advocate for a moment...

Not long ago I was involved with the application process for a patent that was the result of a lot of original research by a small organisation, which was competing head-on with much larger and better funded organisations that hadn't come up with the same invention despite several years of competing in the same industry. One could certainly make a reasonable argument that the "enough eyeballs" theory does not apply in this case.

Do you think the patent in question should be allowed? Does it matter whether the patent in question involved software in any way? If so, does it matter in what way or to what extent? Do the nature of the overall invention or of any part of it that involves software matter in any other way?

Edit (to answer biehl's comment): I meant abolish "software" patents.

(Edit: Then your statement still makes no sense. If you understand that he spoke only about software patents - why do you then needlessly broaden the subject?)

Edit2: It is worse-than-useless to demand no action for softwarepatents until all patent types have been analyzed. Do you also support stabbing people being legal until all uses of knives (in kitchens etc.) have been analyzed? Or do you see that we can reasonably outlaw some form of knife-use?

If you invent a teleporter, you should have patent protection. Developing a video game that implements player.teleport() (however cleverly) shouldn't be.

Software is rarely similar to math algorithms in practice. Just for example, majority of the software developers I have come across have little understanding of mathematics, fundamental computer science, and often also algorithms. They just know how to invoke the latter already built in various libraries to get the problem at hand solved.

Finally, "software" by itself is not a subject of a patent, it is a subject of copyright. What is patentable is an "invention" that may be implemented in software or as a process instead of something physical.

Example, regarding "player.teleport()", it is already that way.

That single process is the difference between an acquirer taking all of their work and just re-implmenting, now that its clear what the issues are, and giving them nothing. And that company having to negotiate with the engineers about their work and pay them fairly for it if they want it.

Patents have not always existed, and it is useful to see what it was like when they didn't exist to understand what it is they protect.

That said, patent administration has not kept up with technology, although if you've been involved with the patent office as long as I have you will know it has gotten much better at figuring out what should and what should not be patentable. Further, the judiciary is getting much more in tune to the abusive nature that people wielding bad patents can have on an industry. It is getting better, and the people who need to make it better (the Supreme court in the US and the 'patent' court) are motivated to make it better and have been making changes along those lines. Not a quickly as some might like but being quick in complex areas of law is often dangerous so some caution is advised.

The story you describe is a convenient myth to justify a system that benefits established interests.

To illustrate my point, consider my story. I'm a software developer with entrepreneurial ambition and I'm developing a product I have dreams of marketing and selling. Last week I probably came up with 5 methods of doing some novel data analysis that are patent-able.

How many will I patent? Well considering it would cost about 100-150k to adequately protect that intellectual property and I have only my own boots to my name, ... I'll patent zero of them.

Clearly the system does not work for me.

This is one extreme scenario, but consider the continuum. What about a startup with 500k in seed funding? Should they spend 50% of their capital to protect their intellectual property before they've finished a product and made sales?

Meanwhile large companies spend millions on patent programs which sweep up wide swaths of IP on nebulous grounds of validity. Not only can I not afford to prosecute a patent, I can't even afford to respond to a cease and desist letter based on an invalid patent which came out of the "innovation process" of MegaCorp.

Sorry, but the system is not for the little guy or the start up.

First, and perhaps most importantly, how did you arrive at a cost for filing a patent? I ask because there is a lot of mis-information out there spread mostly by patent attorneys that try to make this case. The actual fees for filing a patent are not all that high, however attorney fees are astronomical by comparison. Also did you know there are people who are registered patent agents (not attorneys) who can help you file a patent at a much lower cost? I guess the real question is how deeply have you investigated patents with available online resources before deciding they were not worth pursuing?

I've got just over a dozen patents issued to me, they range from the quite simple (protecting a laptop screen from onlookers using lcd glasses) to fairly complex (protecting executable code with bi-directional authentication). I've also been the advisor to a number of startups which have filed for and received patents. The most expensive cost was probably the bi-directional authentication one because it got the department of state involved (long story) but the first one was quite inexpensive, about $15K from deposition to issuance. Part of the expense can come from trying to patent something really broad (like "breathing air") which gets a lot of 'office actions' from the patent office for prior work and restatement of claims. That burns a lot of attorney hours and that is a lot of cost. For things that are narrowly claimed and there is little to no prior art in the patent database, they are very quick to patent and thus very cheap.

Now a patent attorney will advise you to "get as broad coverage as possible" to maximize the "value" of the patent. Which is good, but somewhat self serving advice. They will start with something really broad and the repeated office actions will pare it down into something much less broad, but arguably "as broad as possible." Also "as expensive as possible."

Not a lot of people who argue for or against the patent system have been through it, I've been through it as an inventor, an acquirer (due diligence), and expert witness (defender) of various patents. That experience has helped me get to the point where I've separated my opinions about patents and patent administration into two camps. The latter is problems with how they are vetted, prosecuted and defended, the former is about the concept of protecting the person who did the work from exploitation.

Given changes in the JOBS act there was some additions more cost effective ways to file patents that made it easier for folks in your position to file them. There are also systems like provisional patents, where you put down that you're going to file them in a durable way, so that if you go talk to BigCorp and tell them what you are doing, and they "steal" your idea and implement it, you can "steal it back" by asserting your patent rights to it.

I guess my point is that it is a lot more complex than "good" or "bad" and the information that is readily available may not always come from a disinterested source.

You don't have to believe some random guy commenting on Hackernews here, but you do have to actually think about it and test your assumptions.

A few moments' thought should lead one to the realization that productive engineers have much more to lose from patents than they could ever stand to gain. Even the most creative among us consumes a thousand times more than we create.

Why does it cost more to for the patent office to find out if there is an existing parent than there is to get one granted? Explain that one!

In short, we are getting more or less a coin toss when it comes to patents being granted. And then the cost shifts to legal proceedings, and sadly the threat of these proceedings causes many innovative startups to settle BEFORE any trial. The trolls then cite their success in obtaining licensees as they go and intimidate more small victims in a legal racket.

   > In short, we are getting more or less a coin toss 
   > when it comes to patents being granted. And then the 
   > cost shifts to legal proceedings, and sadly the threat 
   > of these proceedings causes many innovative startups to 
   > settle BEFORE any trial. The trolls then cite their 
   > success in obtaining licensees as they go and 
   > intimidate more small victims in a legal racket.

Part of the reason this is coming to a head now is because we're at the opening of the great unravelling. The dot com boom, and the software patent equivalent of the Cambrian explosion occurred starting in 1995. The 20 year anniversary of which, and the maximum lifetime of any post GATT patent[1], is 2015. We will be seeing upwards of 10,000 patents a month expiring and that is only going to get faster. This leads to desperation on the part of NPEs to get some value out of their patent portfolio before it goes poof. Unlike copyright there will be lots and lots and lots of things that not only can you use them for 'free' but they won't be biting you in the behind later.

[1] http://patentlyo.com/patent/2012/05/how-many-us-patents-are-...

[2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm