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Software patents in Europe
August 22, 2011 4:23 PM   Subscribe

Europe's 'unitary patent' could impose software patents warns RMS. German courts have recently moved towards software patents upholding a patent on the automatic generation of structured documents in a client-server setting, i.e. XML, HTML, etc. (recently : the U.S. patent war)
posted by jeffburdges (31 comments total) 4 users marked this as a favorite

 
What If Tim Berners-Lee Had Patented The Web?
(Web turned 20 last August 6th, btw)
posted by jeffburdges at 4:25 PM on August 22, 2011


You mean Xanadu?
posted by symbioid at 4:31 PM on August 22, 2011


the GNU/Linux operating system

LOL.
posted by grouse at 4:44 PM on August 22, 2011 [2 favorites]


Ignorance is a sad thing.
posted by Crabby Appleton at 4:49 PM on August 22, 2011


Aren't "method" patents in the US basically software patents?
posted by ZenMasterThis at 4:54 PM on August 22, 2011


Ugh, Stallmann. The man is so absolutely clueless about patents it isn't even funny anymore. In this particular case the cluelessness manifests itself in this sentence, at the core of his objection:

A small but crucial detail in the plan is that appeals against the EPO's decisions would be decided based on the EPO's own rules.

What does that suppose to mean? Firstly, the unitary patent proposal is completely agnostic with regard to the patentability of software. Currently, when the EPO grants a patent, it still has to be "validated" in each EPO member state in which you wish it to enter in force. "Validating" does not mean that the patent is examined again (thankfully! the EPO takes already three to five years, often much longer, to examine a patent application), but that a national fee must be paid, and the patent eventually translated into the local language. This can easily cost up to 3000 € per member state and often puts the European patent system out of the reach of SMEs. Moreover, as the patentee can choose in which country it wants the European patent to be validated, it turns Europe into a patchwork of locally valid rights. The unitary patent proposal opens the possibility of designating the EU (minus Spain and Italy, which have opted out because the local patent attorneys make most of their business translating granted European patents) as a single "country" throughout which the European patent would be valid without having to pay local fees or making additional translations.

Now, this has absolutely nothing to do with whether software should be patentable or not. From Stallmann's ramblings I gather that what he actually opposes is a parallel, related proposal to create a specialized European patent court system for ruling on the validity and infringement of European patents (both of the current variety and future unitary version). This is basically a good idea, because non-tech-savvy judges are often as puzzled as the juries of the Eastern District of Texas. What people like Stallmann fear is that this court will upheld the EPO's practice. Now, the proposal is currently being redrafted, because the ECJ found that it lacked provisions to appeal the decisions of those patent courts to the ECJ. But it has never even been suggested that those courts would apply "the EPO's own rules" (its Guidelines for Examination and the case law of the EPO's Boards of Appeal, I presume).

Not that I can share Stallmann's vilification of the EPO either. This is the patent office that is generally regarded as one of the strictest worldwide. It has a "three pairs of eyes" policy for patent examination, and gives the patent examiners twice the productivity points for refusing a patent than for granting it. And, as the FPP itself notes, despite Stallmann's insistence that it "illegally grants" software patents, its granting practice is being upheld by national courts, in Germany and elsewhere. Stallmann et al should rather concern themselves with the national patent systems in Europe which grant patents without any examination whatsoever.
posted by Skeptic at 12:00 AM on August 23, 2011 [2 favorites]


What If Tim Berners-Lee Had Patented The Web?
That article seems to have been written august 11th.

I wrote this comment on july 28th.
"Tim Berners Lee [is] widely known as the inventor of the WWW. He invented HTML and the HTTP protocol to transport it. But what if Douglas Englebart had enforced a patent on hypertext? TBL could never have created the web.

What if TBL had patented, and enforced patents on HTML and HTTP. Likely, those patents would have gone nowhere and no one would use those technologies. We'd be using something else instead and the development would have been held back by years."
Techdirt is clearly violating my rhetorical patent! I should sue them for royalties! Clearly that argument couldn't possibly be obvious, we all know ideas are unique! Ideas never spontaneously generate in the minds of different people when those people are trying to solve the same problem and/or make the same point!
posted by delmoi at 1:00 AM on August 23, 2011


Aren't "method" patents in the US basically software patents?

Firstly, I guess you mean "business method" patents. The first patent granted in the US was for a method. A method for producing potash. A business method patent is a patent that purely relates to a method of doing business, without necessarily involving any technical means. They were considered patentable by the US Courts of Appeals for the Federal Circuit in State Street v. Signature. However, the Supreme Court in re. Bilski partially overturned the doctrine of State Street, and business method patents are currently in an uneasy limbo in the US.

In Europe, it's clearer: the invention must have a technical character.

What is a "software patent"? This is a very good question, because the noisiest opponents to "software patents", like Stallmann, generally stop short of actually defining what a software patent actually is. If I try to understand his argument in the linked article, what he opposes are patents on inventions that do not have a "physical" inventive aspect. Yet that is less clear than he appears to believe. Among the patents he vilifies most are those related to audio and video encoding. Yet the sound emitted and images displayed after being treated by those processes are indiscutably "physical" vibrations and photons, even if they are not material or tangible. On the other hand, if we interpreted his idea very broadly, it would exclude any invention whose difference with the prior art could be expressed using an abstract formula. That would include in fact most mechanical inventions, such as particularly-shaped cams or wing profiles.

The Boards of Appeal of the EPO, which have given massively more thought than Stallmann to this quandary, have come to a different conclusion. Their buzzword is "technical character". For them, computer programs may be patentable if they produce "a further technical effect which goes beyond the "normal" physical interactions between program (software) and computer (hardware)". Then follows the examination as to whether they are novel and inventive.
posted by Skeptic at 1:17 AM on August 23, 2011 [2 favorites]


Techdirt is clearly violating my rhetorical patent!

Mike Masnick has a proven track record of not "getting" the patent system. For starters, he obviously ignores that somebody (British Telecom) actually patented the Web and tried to enforce the patent. Nothing much happened.

Funnily enough, Stallmann's friends at FFII used this "hyperlink patent" as scare story of what would happen in Europe if "current EPO practice" was allowed to continue, without noticing that corresponding patents had actually been applied for and granted nationally in a number of European countries.
posted by Skeptic at 1:30 AM on August 23, 2011 [1 favorite]


I forgot the link to FFII's scare story.
posted by Skeptic at 1:31 AM on August 23, 2011


In Europe, it's clearer: the invention must have a technical character.

It's clear, but it's a bit complicated which is why it is so easily misunderstood and mischaracterized. Here is a few paragraphs from a book I have written on the subject:

8.17 Technical Character, Technical Effect, Technical Problem

.... the EPO Boards of Appeals have taken an expansive view of Article 52(3) in granting patents on inventions in which computer programs are involved. As any practitioner will tell you, the existence of a “technical contribution” is key to avoiding an Article 52(1) rejection yet nowhere – not in the case law, not in the EPC - is there a clear definition of what “technical contribution” means. Moreover, the IBM decision (T 1173/97) further complicated this by introducing the concept of a “further technical effect.”

(note: Skeptic links to the IBM decision under "different conclusion.")

9.0 In Defense of Technical Contribution

On Dec. 14, 2004, Lord Sainsbury, UK Minister for Science and Innovation hosted a meeting to discuss the Directive on the patentability of computer-implemented inventions (CII). The meeting, held at the Department of Trade and Industry’s conference center in London, was arranged to receive views from the Directive’s opponents.

As I briefly mentioned in Section 8.6, the Directive’s ambition is to harmonize European patent law on the subject of computer-implemented inventions with the de facto practice of the European Patent Office (EPO.) In this regard it is accurately described as presenting “no change in the extent of patentability on software.” Indeed all Contracting States of the European Patent Convention (EPC) are required to bring their national law into conformance with the EPC.

There is, however, no guarantee that the Patent Offices and Courts in all EPC contracting states will interpret the law in exactly the same way. In fact, as the legal framework stands, there is no overarching mechanism to prevent divergent interpretations from occurring at the national level. Creating consistency within the EU with respect to the treatment of patents on computer-implemented inventions is, of course, the prime motivation for the Directive and an entirely proper role for the EU.

Opponents of the Directive charge that the EPO has overstepped the bounds of the EPC and instead of codifying the present EPO practice in European law, as the Directive intends, it is the EPO that needs to be restrained. At the heart of this argument is the EPO’s standard of “technical contribution” under which opponents charge “pure software” is being patented in clear contradiction of its literal exclusion under Article 52(2)(c) EPC.

Explained in detail in the previous chapter and crudely summarized here, the position of the EPO (and, incidentally, also the UK Patent Office) is that a program for a computer that makes a technical contribution is more than a program for a computer and hence not a program for a computer as such. In other words, a computer program that makes a technical contribution invokes the exclusion of Article 52(3) EPC and becomes a patentable computer implemented invention. Nearly 20 years have passed since technical contribution entered the lingua franca of European patent law and it is still a hot topic of discussion. A review of the meeting’s transcript, generously provided by Lord Sainsbury on the worldwide web, reveals the phrase technical contribution appearing frequently.

One thing is clear: we enter this fray all speaking a common language, but it would be wrong to assume that we are all speaking about the same thing. What the transcript shows is that despite a consensus on the use of the term there are vast differences of opinion over what technical contribution means and indeed over how it is used.

9.1 What is a Technical Contribution?

The term technical contribution does not appear in the EPC itself, but the so-called Implementing Regulations (i.e. the Rules) are liberally sprinkled with references to “technical.” Moreover, it is not difficult to infer from the exclusions of Article 52(2) (a)-(d) EPC that an invention might have a technical character. This view is reinforced by Rules 27 and 29 which define respectively the form and content of the specification and the claims.

Referring to the content of the specification, Rule 27(1) says:

1) The description shall:

(a) specify the technical field to which the invention relates;

(b) indicate the background art which, as far as known to the applicant, can be regarded as useful for understanding the invention, for drawing up the European search report and for the examination, and, preferably, cite the documents reflecting such art;

(c) disclose the invention, as claimed, in such terms that the technical problem (even if not expressly stated as such) and its solution can be understood, and state any advantageous effects of the invention with reference to the background art;

(d) briefly describe the figures in the drawings, if any;

(e) describe in detail at least one way of carrying out the invention claimed using examples where appropriate and referring to the drawings, if any;

(f) indicate explicitly, when it is not obvious from the description or nature of the invention, the way in which the invention is capable of exploitation in industry. (emphasis added)

Rule 29 lays out the requirements for the form and content of claims. Specifically, Rule 29(1) (a) requires that:

(1) The claims shall define the matter for which protection is sought in terms of the technical features of the invention. Wherever appropriate claims shall contain:

(a) a statement indicating the designation of the subject-matter of the invention and those technical features which are necessary for the definition of the claimed subject-matter but which, in combination, are part of the prior art;

For those seeking a precise definition, the EPC and the accompanying Rules are unhelpfully equivocal. To be patentable under the EPC an invention must (among other things) relate to a “technical field,” solve a “technical problem,” have “technical features,” provide “advantageous effects,” and be “capable of exploitation in industry.” Faced with this diversity of nomenclature, the EPO Technical Board of Appeal seems to have summed these up when they introduced the term technical contribution in the 1986 Vicom decision: “Decisive is what technical contribution the invention as defined in the claim when considered as a whole makes to the known art.”

The technical contribution test has continued to be applied by the EPO up until the present time.

9.2 EPC 2000

It is taken at face value in this discussion that there are things society wants to patent and things that society does not want to patent. Article 52(1) EPC states:

European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

These are things that society deems worthy of a patent: “any inventions which are susceptible of industrial application, which are new, and which involve an inventive step.” Seems simple enough, but note that this wording links the subject of what should be patentable to other tests for patentability and other articles of the EPC: Article 57 EPC defines industrial susceptibility, Article 56 EPC defines inventive step, and Article 54 EPC defines what is new. Collectively what these Articles say is that patents should be granted only on inventions, but that not all inventions should be patentable.
9.3 The Tests for a Patent

The test of a patent is subtly twofold: an invention must first fall within the scope of inventions society wants to patent and then the invention must be tested to see if it is indeed new, capable of industrial application, and involving an inventive step. As Ingo Kober, President of the European Patent Office indicated:

This means, so far as EPO practice is concerned, that a software-related invention is, like any other invention, considered as a whole and must satisfy the patentability criteria of novelty, inventive step and industrial applicability, but in the first place, the invention must be of a technical nature, and this is the point, it must represent a technical contribution to the prior art, because the EPC does not and nor was it ever intended to confer patent protection for non-technical "inventions".

This is an important clarification. Some people have argued that technical contribution is a sui generis test applied to computer-related inventions. This would imply that technical contribution is something in addition to the nominal statutory requirements. A special extra test, if you will, for computer-implemented inventions. It is nothing of the sort. Technical contribution is simply a shorthand notation referring to existing statutory requirements.

Moreover, it is a standard applied to all inventions, but one which only becomes remarkable as a separate test where the subject matter of the invention is close to the exclusion of Article 52(2) (c) EPC. This is the reason the EPO can accurately claim to be acting within the authority of the EPC, but this argument is not entirely satisfying.

9.4 Technical Contribution Renders Article 52(2) (c) EPC Redundant

There are two ways of looking at Article 52(2) (a)-(d) of the EPC. The first way is to view these as a non-exhaustive, literal recitation of items already excluded by the totality of the statute. This is illustrated below in Figure 9-1. In this meaning, technical contribution is a test - wholly within the statute and applied to all inventions - to place an invention into one circle or the other. Either it is an invention in light of Article 52(1) EPC and should be subjected to the further tests of Articles 54, 56, and 57 EPC (as well as many other statutory and formal requirements.) Things that are non-technical, that lack a technical character, that do not make any technical contribution, fall into the circle of unpatentable inventions without any further test.

In this meaning technical contribution is a not a separate requirement for patentability, it is merely a generalization of the statutory requirements. In a practical sense, the statutory definition of technical contribution would be any invention which is new, capable of industrial application, and involves an inventive step also makes a technical contribution.

One problem with this interpretation is that it renders Article 52(2)(c) EPC as superfluous. During the deliberations leading up to the Administrative Council’s 2000 proposal to amend the EPC, the Committee on Patent Law and the Administrative Council advocated the deletion of programs for computers from Article 52(2)(c) EPC.

Notably, the Administrative Council decided to leave Article 52(2)(c) unchanged explaining:

“Nevertheless, the point must be made that patent protection is reserved for creations in the technical field. This is now clearly expressed in the new wording of Article 52(1) EPC. In order to be patentable, the subject-matter claimed must therefore have a "technical character" or to be more precise - involve a "technical teaching" ie an instruction addressed to a skilled person as to how to solve a particular technical problem using particular technical means. It is on this understanding of the term "invention" that the patent granting practice of the EPO and the jurisprudence of the Boards of Appeal are based. The same considerations apply to the assessment of computer programs.”

In recognition, perhaps, of the existing law’s malleability and as a nod to the need for future flexibility, the Administrative Council concluded their explanatory remarks by saying:

“Thus it will remain incumbent on Office practice and case law to determine whether subject-matter claimed as an invention has a technical character and to further develop the concept of invention in an appropriate manner, in light of technical developments and the state of knowledge at the time.”

In announcing the proposal, Dr Roland Grossenbacher, Chairman of the Administrative Council of the European Patent Organisation, observed:

“First, I should point out that the Conference agreed not to delete computer programs from the list of non-patentable inventions. For the meantime, the existing legal position therefore remains unchanged. The Conference's decision took account of the process of consultation on the future of legal protection in this field, and in no way challenges the existing practice of the Office and its boards of appeal, or that of national patent authorities and courts. As before, computer-implemented inventions can be patented if they involve a new and inventive technical contribution to the state of the art. Technical solutions for use in data processing or for carrying out methods of doing business therefore remain patentable.

This follows from the concept of invention itself, which draws a clear distinction between technical solutions and non-technical methods. On this basis, patents cannot be granted for computer programs or business methods which are not of a technical nature.”

Apologies for the long post. Point is that this is really very quite complicated and nuanced and it is absolutely no help that opponents over-simply and mischaracterize the issue.
posted by three blind mice at 1:51 AM on August 23, 2011 [4 favorites]


Thanks for your contribution, three blind mice. I never wanted to imply that the subject was simple.
posted by Skeptic at 2:09 AM on August 23, 2011


I never wanted to imply that the subject was simple.

I'm sorry. You didn't imply that it was simple, only more clear which is correct.

My comment was really to show that "software patents" is a fascinating, complicated, and nuanced discussion with no right or wrong answer. Unfortunately, the discussion always gets derailed by (valid) complaints about trivial patents and (equally valid) complaints about heavy-handed enforcement and the evangelical philosophy of free and open source software.

Obviously, it seems to me, there must be room for co-existence of different development models: F/OSS isn't going away and it shouldn't, but neither should proprietary software go away.

I think the EPO has framed the problem correctly and the approach of "technical contribution" and industrial applicability suitably solves the problem of separating "pure thought" from economic benefit.

On the other hand, my opinion is that there needs to be created some space for "legal" infringement something akin to fair use in copyright. When I suggested this during an informal discussion with Chief Justice Rader of the U.S. CAFC he insisted looked at me a bit cockeyed and said that such a space already exists in practice: "If there isn't enough money to collect, no one asserts a patent."

An interesting view, but wholly unsatisfactory.
posted by three blind mice at 2:56 AM on August 23, 2011


If it was up to me the rule would be simple: Pure data shouldn't be patented. or to be more precise you can't get a patent such that a block of pure data would violate that patent.

Certainly, anything can be represented as pure data but generally a CAD file of a patented latch isn't thought of as violating the patent. In fact you're supposed to include that data with the patent itself!

Patents should only apply to physical objects, or I suppose chemical processes (which would be the 'transformations' originally specified)
posted by delmoi at 5:29 AM on August 23, 2011 [1 favorite]


Ooooooooooooooh......SCARY!!!!!!!!!!!!!!!!

The Google ad that accompanied the second link was so appropriate - it was for Xactly and featured a cartoon woman's very terrified face. Next up, alien invasion.
posted by caddis at 6:40 AM on August 23, 2011


Pure data shouldn't be patented. or to be more precise you can't get a patent such that a block of pure data would violate that patent.

Sigh. This is the sort of comment that makes me scream in frustration. As far as I can think of, a "block of pure data" cannot violate a patent. It cannot in Europe (it would be a "presentation of information as such", which is explicitly excluded from patentability) and it cannot in the US ("signals" not being a process, machine, manufacture, or composition of matter, which are the statutory categories of patentable subject-matter in the US). But a computer program is not a "block of pure data". It is a set of instructions for a process to be executed by a computer, which is a physical machine.

Now, there are a lot more technical processes than just those of the chemical variety. Mechanical processes (think of all the inventions related to textile processes), physical processes (physical vapor deposition, for instance), and even electric and electronic processes. There are a lot of inventions that are related not to new devices, but to new methods of using them, and a lot of patents related to such methods, going back to the earliest days of the patent system.

Now please explain to me why a technical, inventive new method of using a machine should not be patentable, just because the machine in question happens to be a computer?
posted by Skeptic at 6:41 AM on August 23, 2011


As far as I can think of, a "block of pure data" cannot violate a patent

Further to what you said, it would also violate the printed matter doctrine in the US. The printed matter doctrine is pretty flimsy, but "a block of pure data" is about as clear a violation as can be imagined.

Now please explain to me why a technical, inventive new method of using a machine should not be patentable, just because the machine in question happens to be a computer?

The usual argument is that software is equivalent to math and math is not patentable, so if the only new and inventive feature of the invention is the software, then nothing patentable remains.

However, math is not patentable because it is an abstract idea (it also lacks utility). But software running on a computer is not abstract, especially if the underlying data represents something physical, and it is capable of having utility.

So I believe that requiring a computer implementation should make an otherwise unpatentable (but still new and nonobvious) algorithm patentable because it overcomes the rationales for the common law exception to the patentability of math.

An alternative argument is that software should not be patentable because it hinders rather than aids innovation, but that's an empirical issue for the legislature, at least in the US.
posted by jedicus at 7:29 AM on August 23, 2011


An alternative argument is that software should not be patentable because it hinders rather than aids innovation, but that's an empirical issue for the legislature, at least in the US.

Moreover, this argument can usually be boiled down to "(other people's) patents in our field are wrong, because we may infringe them", which is rather self-serving, and not particularly novel or inventive.

(Banks may get away with that kind of argument, though...)
posted by Skeptic at 8:00 AM on August 23, 2011


Moreover, this argument can usually be boiled down to "(other people's) patents in our field are wrong, because we may infringe them", which is rather self-serving, and not particularly novel or inventive..

It's more fair to say that the argument can be boiled down to "The regulatory burden of patents hinders innovation." Which I think is a perfectly valid argument.
posted by papercrane at 8:16 AM on August 23, 2011 [2 favorites]


It's more fair to say that the argument can be boiled down to "The regulatory burden of patents hinders innovation." Which I think is a perfectly valid argument.

The authors of the US Constitution beg to disagree. Also, that argument has been empirically disproven by an industrial revolution or two.

Still, I have more respect for those who make this argument against patents as a whole, than against patents in a specific field, such as software. That's what I call "self-serving".
posted by Skeptic at 8:27 AM on August 23, 2011


The authors of the US Constitution beg to disagree. Also, that argument has been empirically disproven by an industrial revolution or two.

Still, I have more respect for those who make this argument against patents as a whole, than against patents in a specific field, such as software. That's what I call "self-serving".


The US Constitution authors were hardly experts in either the software industry or the modern patent system, and the existence of the industrial revolution doesn't disprove or prove anything about our current patent system, or the proposed changes and the effects on the software industry.

If someone has solid evidence that the patent system is hindering innovation in a field I think the legislature should take that seriously. Of course whomever does argue against the regulations is going to have a self serving agenda, that's not a bad thing, as long as the people judging his argument are unbiased and thoughtful.
posted by papercrane at 9:16 AM on August 23, 2011 [1 favorite]


There is no question that the ongoing U.S. patent war hinders innovation, Skeptic. There are billions being siphoned off to the lawyers, the shareholders of failed companies, etc. And there isn't substantial evidence that the software patents actually accomplish much.

I'd agree that many patents involved in the current U.S. patent war are quite simply too retarded for Europe. Apple's device rotation patent clearly fails the E.U.'s technical character test, for example.

There is however an underlying problem with software patents in general, namely that underlying principles of nature aren't patentable, i.e. no patents on mathematics or physics. In principle, your patent office could reject encoding patents that specified some encoding into waveforms of a specific character without specifying how their parameters were derived from the data, but they might not always do so.

In other words, there is an enormous temptations to allow software patents that are not a complete specification of a unique algorithm plus associated data structures, but actually covers a wide swath of algorithms. I'm sorry but that's patenting nature.

As an example, RSA's patent does not afaik specify how one determines the primes p and q or the exponent e. It's lovely that MIT fattened their endowment off RSA, but clearly that patent inhibited innovation.

At some level, all patents enable rent seeking by the legal profession, but hardware and chemical patents ultimately protect a significant investment in facilities, which justifies the lawyers. If otoh a 15 year old kid's hobby might violate a patent, then you're clearly handing out excessive patent rights. And those patent rights will be turned into rent seeking lawsuits against the most innovative sectors of the economy, i.e. tiny software companies.
posted by jeffburdges at 10:16 AM on August 23, 2011 [1 favorite]


There is no question that the ongoing U.S. patent war hinders innovation, Skeptic. There are billions being siphoned off to the lawyers, the shareholders of failed companies, etc.

The lawyers don't get the billions, jeffburdges. They may get a very comfortable living out of it, but not billions. As for those "failed companies", without the Motorolas and Nokias of this world, and their huge investment in the R&D that brought us WiFi, GSM, GPRS, UMTS, LTE, etc, there would be no smartphones, no iPhone and no Android. Their shareholders agreed to those investments on the understanding that they would be protected by patents. Otherwise, what would have been the point for them?

I'd agree that many patents involved in the current U.S. patent war are quite simply too retarded for Europe. Apple's device rotation patent clearly fails the E.U.'s technical character test, for example.

I guess you refer to US Patent 7,978,176. The claims refer to methods involving a "portable multifunction device with a touch screen display and one or more accelerometers". Without judging from the validity of the patent, that seems technical.

Whether those methods were truly inventive, that is non-obvious for the skilled person when the Apple employees came up with them, is an entirely different matter! As three blind mice point out upthread, it is easy to derail the discussion about software patents with complaints about trivial (or supposedly trivial) patents, which are a diffent subject.

Patents that are granted without due consideration to their inventive step are a blight that, unfortunately, affects not only the software field, but it is one that is not inherent to the patent system, can be fought with adequate funding of the patent offices, and opportunities for administrative review of patent validity.

This said, with hindsight it is all too easy to claim that something (and especially a rival company's patent) was obvious. See this simple psychological experiment. Once you have seen the iPhone, it is very easy to claim that its screen rotation was obvious. Was it so obvious in 2007? I would take some pause before making that call.

In other words, there is an enormous temptations to allow software patents that are not a complete specification of a unique algorithm plus associated data structures, but actually covers a wide swath of algorithms. I'm sorry but that's patenting nature.

I have quite some trouble following your arguments, and I'm afraid, sorry, that it is because you still haven't understood the nature of patents yourself. A patent basically has two parts: claims and specification. The claims are as broad as possible, because they determine the scope of protection. The specification, which should disclose at least a preferred embodiment of the invention, is much more specific, but it should enable the skilled person to reproduce the invention over the whole broad scope of the claims. Ensuring that there is such enablement is also part of the examination work at the patent office. Is it always done right? Of course not. Can it be improved? Of course it can (see my suggestions above regarding non-obviousness).

At some level, all patents enable rent seeking by the legal profession, but hardware and chemical patents ultimately protect a significant investment in facilities, which justifies the lawyers. If otoh a 15 year old kid's hobby might violate a patent, then you're clearly handing out excessive patent rights. And those patent rights will be turned into rent seeking lawsuits against the most innovative sectors of the economy, i.e. tiny software companies.

Google was once a tiny, but very innovative software company, a spinoff of Stanford University. In order to grow, or even survive, it also needed significant investment from venture capital. Where these patents (pending patent applications at the time) fundamental in reassuring those (now very fortunate) venture capitalists that their investment was protected from an onslaught by, say, Microsoft? I can't be sure of that, but I'm certain they didn't hurt. I know this, because I've dealt with similar spinoffs and startups.
posted by Skeptic at 1:50 AM on August 24, 2011


I've never seen any software patent provide meaningful protection that was both non-defensive and socially beneficial. In fact, I've never met anyone who supports software patents who wasn't a lawyer, that's pretty telling right there.

Apple has always shipped a good product by integrating the software and hardware well. Ain't surprising they did rotation first, especially when pursuing Jobs' one-button-mouse vision for mobile phones. Is rotation a good thing? Yes. Is it exclusivity good? No. 20 years exclusivity? Hell no.

Has it protected Apple? No. Apple's iPhone wasn't simply some collection of stupid interface tricks like rotation, but the whole well integrated package. Apple gained an incredible market share while competitors like Android were being developed. Will Apple's patents protect them in the future? No. Android dominates the market now because the control freak mentality that helps Apple develop a good product prevents them from ever producing the array of products that consumers actually want. In principle, Android OEMs could even ship less expensive software patent free devices which users update themselves for features like rotation.

Google's patents were not fundamentally critical to Google's success. Yahoo never even put up a fight because their whole business model was payola or something. Microsoft took decades delivering a viable search product, which arguably still isn't nearly as good. And we suspect they only got launched by copying Google's results, violating Google's terms of service.
posted by jeffburdges at 4:14 AM on August 24, 2011


I've never seen any software patent provide meaningful protection that was both non-defensive and socially beneficial.

The Fraunhofer Society's MPEG patents? (Contrary to what is stated in that article, the Fraunhofer Society is not a "company", but a non-profit foundation for applied research.)

In fact, I've never met anyone who supports software patents who wasn't a lawyer, that's pretty telling right there.

IANAL (OK, I'm a European patent attorney, but not a lawyer. It's complicated.) Also, I no longer work in that field (mine are pretty boring mech patents).

I can assure you, though, thet I've met plenty of small software businesses interested in patent protection. Not always the best priority or the smartest move, and I told them so. But they do exist, and they often have good reasons to do so (usually reassuring venture capitalists).

Also, that was an ad hom. Please provide some actual arguments going beyond "I don't like software patents, and you are biased."
posted by Skeptic at 4:52 AM on August 24, 2011


You know, there isn't any debate on this question among academics, software developers, etc., software patents are simply viewed as a ridiculous impediment to technological progress.

I know people who own software patents, and even receive royalties from them, but nevertheless oppose software patents on general principle. Instead, they sympathize with other developers and companies who've paid extortion money to patent trolls.

Yes, there are non-profits like the Fraunhofer Society, MIT, etc. that partially finance themselves through patent licensing. Yes, funding those organizations is obviously socially beneficial. Yet, whether patents are the best approach is very much open to debate. In most case, such organizations are funded primarily by government grants, btw.

Fraunhofer's MPEG patent hasn't prevented mp3 technology from being adopted, but has prevented RedHat from distributing an mp3 player, and has probably prevented the development of better codecs. MIT's RSA patent has almost certainly resulted in a vastly more insecure world.

Just fyi, I've gathered that attorney are biased about software patents, not because they're trying to make a buck, but because they imagine their field contributes to software advancement when it so clearly does not, and instead hinders it.
posted by jeffburdges at 8:17 AM on August 24, 2011 [1 favorite]


Also, that was an ad hom. Please provide some actual arguments going beyond "I don't like software patents, and you are biased."

A patent attorney who dismisses arguments against software patents as "self-serving" then complains about an ad hominem statement? This is my surprised face.
posted by grouse at 8:26 AM on August 24, 2011 [1 favorite]


Interview With 'Idiot' Behind Key Software Patent

"So I was thinking - great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it - then I realized the idiot in question was me :-)"

In fact, his position is more that people "skilled in the art" should have an easy time rejecting or invalidating patents, which almost surely prohibits Apple's phone rotation patent, but presumably allows Fraunhofer's MPEG patent. We obviously wouldn't be having this conversation if judges would invalidate patents based upon one reputable computer science professor's testimony that the patent was obvious.

Btw, he supports various other restrictions like a "shorter lifespan for software patents" relative to other patents, and "meaningful punitive damages for the assertion of [crappy] claims", which might entail disbarment.

See also techdirt's or slashdot's patent sections.

posted by jeffburdges at 8:46 AM on August 24, 2011


I think the thing that gets me most about software patents is that when they weren't in play - and it wasn't until Clinton that they began to matter - we had forty years during which an absolutely enormous amount of innovation occurred. So whatever patents have going for them, they aren't necessary to make people make things, and they aren't necessary to make people rich. Those rich software people? Didn't get there through patents.

Now, you write a game app you get shaken down by Lodsys. Who have carefully worked out how much money to suck from your revenues so you won't die. But you won't get to invest in new staff or products as much. Lodsys, hell, it doesn't need new staff or products.

And no, it's not just software patents. I know a company in the UK making high-end audio production equipment. At the time when it started to make sense to go digital, they designed a fully-digital mixing desk which was really very good; they're smart people. And lo, they got a letter from a Very Famous American University that said 'you're infringing our DSP patents. Pay us half a million dollars."

They were smart people; they had smart lawyers, who understood engineering. Said lawyers said 'Pay up. You don't infringe, but combine the lottery of the court and the cost of going there, there's no way you'll come in under half a million and could be a lot more'.

This is good because? Can't we spend that half a million dollars on, say, new jobs? That would be lovely.
posted by Devonian at 10:22 AM on August 24, 2011 [2 favorites]


Don't hold your breath for patent reform
posted by jeffburdges at 5:30 PM on September 6, 2011


U.S. ditches first-to-invent for Europe's first-to-file
posted by jeffburdges at 7:12 AM on September 9, 2011


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