My comment to the iOS developers is, if you don't want to infringe the patent, take the patented feature out of your products.
So your advice is for developers to completely cave in. Back off and gut your product the moment anyone comes along with a claim, no matter how outrageous. (And to be sure, Lodsys' claim is quite outrageous.) Nice. That's the spirit that makes America not so great anymore. Thanks for ruining our country.
There is nothing inherently unique about software. Software patents are methods implemented in a computing environment. They should be just as patentable as a method for making a chemical compound.
There speaks a man who has never produced a piece of software in his life. The method for making a chemical compound would be akin to the source-code of software, which is not patentable, but is protectable by copyright. A software patent is akin to an entire class of reactions - it's like patenting oxidation. You've no explanation whatsoever for the mass of creativity that occurred in software when there was no patent protection. All you can do is ignore it, because it doesn't fit your argument. Stop denying reality and accept that patents have had no positive impact on software innovation.
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The problem I have with the consortium is that it alleges that Intellectual Ventures is the problem and that we need to rid the system of brokers. These "patent reform measures" are not limited to software. They attack the broker, which is the only market the small guys have since they can't afford to fight the big companies in court and the big companies won't buy their patents. What is the small inventor suppose to do?
From a legal perspective they attack them, because from a legal perspective they are the greatest risk to independent developers. From a legislative perspective they will no doubt be going after the entire software patent domain.
The NPEs are a problem in many ways - because they can use the flimsiest patents in against weak defendants with no risk of counter-attack, and no risk of bad PR. The only way to retaliate is to actively seek to invalidate their patents, which is exactly what Anthill is saying they will do. It's also completely within the existing law and an entirely appropriate response - your attempt to paint it otherwise demonstrates your complete hypocrisy.
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Intellectual Ventures selling a license to Apple and then selling the patent to another entity that indirectly sues Apple is a scum bag thing to do. However, you can't get rid of the Broker unless Apple is willing to buy from the small inventor. The solution is for companies to start buying up patents before Intellectual Ventures does. Changing the patent system to prevent small inventors from having a market to sell their patents is not the correct solution.
You are presupposing that anthill is trying to ban the sale of patents, that would be impossible because you could simply sell the companies that held them. You have no evidence that this is anthill's aim whatsoever. Changing the scope of what can be patented however does not require a constitutional amendment but only regular legislative change.
Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.
Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?
The cogent argument is quite simple:
The inventions created by small inventors have been and always will be a critical component of the patent system. Without small inventors, big companies eventually get together and agree what they will and will not do to each other's markets. A small inventor doesn't have any market share so a small inventor will never be invited to the "oligarchy party." Instead, the small inventor will try and beat the big companies to new technology to either make them pay or lure market share by the advancement in the technology. This explains why the small inventor is critical. The patent system has worked this way for more than 200 years. The reason our economy beat the British economy in the 1800s is because we had thousands of "nobodies" trying to get patents on mechanical devices like steam engines. The British made the patent system more accessible to the affluent and well trained. In contrast, the U.S. was handing out patents to anyone that could think of something novel. Big companies would then buy up those patents or design around them and get their own patents.
The current proposed reforms have a misguided belief that software is unique and the patent system is unnecessary for software. They mistake rapid development in software as evidence that the patent system is not necessary. However, software is just the "railroad of our time". The fact that the technology is developing so quickly isn't evidence that the patent system isn't necessary, it is evidence that it is working.
The software industry perceives a problem with "brokers" such as Intellectual Ventures who buy up software patents from small inventors who have no one else to sell to. For some reason, the current software industry has decided to fight against small inventors instead of buy up their patents. Big companies have learned that if they fight small inventors with multi-million dollar lawsuits the small inventors go away because they can't afford the fight. The brokers have come in to fill the void. Now the only thing a small inventor can do is sell his or her patents for pennies on the dollar to a broker who then matches the capital resources of a big companies and plays the game.
The current reforms attempt to eliminate the broker, but they don't do anything to stop the underhanded tactics by big companies to avoid paying small inventors. Moreover, small inventors are the only group in this scenario that is not represented in politics. I see the rights of the small inventor being slowly eroded year after year. For example, the recent decision in the Ebay case did away with permanent injunctions for non-practicing inventors. This decision was targeted at the "brokers" but it had a huge damaging impact on small inventors. Small inventors rarely have market share and so they don't sell products and can't get a permanent injunction. In essence, Ebay took away the very thing that the Constitution says an inventor should have, which is the right to exclude (i.e., a permanent injunction). This decision was clearly directed at "brokers," but it hit hard on non-practicing inventors. If the software community succeeds in destroying "brokers" the small inventor won't anyone to sell to. A small inventor isn't going to spend $15,000 on a patent if he or she can't enforce the patent or sell it. When that happens, we'll begin the slow but sure process where companies establish their markets and then collaborate to maintain them (if you want a good example of this, check out the Cement industry). I know it is hard to believe that such a thing will happen when you are experiencing the rapid growth that we have now. But just you wait. If you remove the brokers without fixing the litigation and permanent injunction problem, you will ruin the patent system. Policies take a decade or so to have their effect, but it will happen. It will happen right under your nose and you won't know it until it's too late.
The way I see it, the software industry is in the process of ruining a perfectly good 225 year old patent system.
There speaks a man who has never produced a piece of software in his life. The method for making a chemical compound would be akin to the source-code of software, which is not patentable, but is protectable by copyright. A software patent is akin to an entire class of reactions - it's like patenting oxidation. You've no explanation whatsoever for the mass of creativity that occurred in software when there was no patent protection. All you can do is ignore it, because it doesn't fit your argument. Stop denying reality and accept that patents have had no positive impact on software innovation.
From a legal perspective they attack them, because from a legal perspective they are the greatest risk to independent developers. From a legislative perspective they will no doubt be going after the entire software patent domain.
The NPEs are a problem in many ways - because they can use the flimsiest patents in against weak defendants with no risk of counter-attack, and no risk of bad PR. The only way to retaliate is to actively seek to invalidate their patents, which is exactly what Anthill is saying they will do. It's also completely within the existing law and an entirely appropriate response - your attempt to paint it otherwise demonstrates your complete hypocrisy.
You are presupposing that anthill is trying to ban the sale of patents, that would be impossible because you could simply sell the companies that held them. You have no evidence that this is anthill's aim whatsoever. Changing the scope of what can be patented however does not require a constitutional amendment but only regular legislative change.
I never said the legislative reform wasn't legal. I'm saying the attempted reform will ruin a perfectly good patent system that has been around for 225 years and has made this country what it is. You are absolutely correct that the people of this country are free to persuade their legislatures to *uck it up.
Your assume wrong. I have written software. I even signed up as an apple developer and designed my own iOS app but haven't gotten around to coding it up.
Please spare me the lecture on patents. I'm a patent attorney.
I do have an explanation for the mass of creativity during the period when there was allegedly no software patents. First of all, lets get one thing straight, "software patents" are really nothing more than a method implemented on a computing device. Such methods are no different than any other method. Methods require a series of acts that must be performed to effectuate a desired result. Whether the steps involve displaying items on a screen and interactions with an interface or whether the steps involve mixing one reagent with another agent, they are all method steps. And by the way, I've actually gotten a patent allowed where the point of novelty in the method was an oxidation step. (it was a method for preparing a carbon nanomaterial).
Secondly, in the United States there never has been a rule against patenting "software methods". In the early 80s there was uncertainty about how to draft proper "software" claims and whether the claims would be enforceable. However, uncertainty isn't the same thing as saying that software wasn't patentable. We just didn't know how it was all going to work out.
Thirdly, the major driving force behind software in the 80s was the need to operate new hardware. Patent attorneys knew how to draft patent claims to the hardware and since the software was tied to the hardware, it made sense to claim the hardware. But make no mistake, the patent system was a huge part of the advancement of the software industry. It took some time, but patent attorneys eventually developed techniques for claiming computer-implemented methods (i.e., software) and courts resolved the ambiguity in favor of patentability.
So you want evidence that the patent system works for software? How about the fact that the software industry exploded in the U.S. as compared to Europe. Europe tried to take a much stricter approach to software patents. In the end, I don't think they succeeded (because the reality is that it is rather difficult to distinguish a computer implemented method claim from other types of method claims). Nevertheless, while the U.S. was breaking new ground with their "computer-implemented methods" the EU was announcing that they wouldn't have anything to do with it. The software industry in Europe is a joke compared to the U.S. Do you need a corollary example? The EU has strong patent protection on pharmaceuticals and medical devices but you can't get patents on medical procedures. You can in the U.S. Guess what? The research on medical procedures in the EU pales in comparison to the U.S., but the EU is very strong in big pharma and medical devices. I could go on but.........
So your advice is for developers to completely cave in. Back off and gut your product the moment anyone comes along with a claim, no matter how outrageous. (And to be sure, Lodsys' claim is quite outrageous.) Nice. That's the spirit that makes America not so great anymore. Thanks for ruining our country.
That is not what I'm suggesting at all. The first step is to evaluate the claims. If the patent is invalid then invalidate the patent. If the patent is valid, either license the patent or modify the product so that it doesn't infringe the patent.
I never said Lodsys claim wasn't outrageous. To be sure they are a bunch of scum bags for suing Apple's developers when they know that Apple has already paid for a license.
I don't know how many times and different ways I can say this, but my beef with this Consortium is that they want to eliminate "non-practicing inventors" and "brokers." No matter how much I wish brokers weren't necessary, they are. They provide a critical form of balance in a war that was started by companies not willing to pay small inventors a reasonable fee for their inventions. The patent system isn't broken. The licensing system is broken. Start paying small inventors for their inventions and you won't have to deal with bastards like the people from Lodsys.
Your argument that I'm "ruining our country" is an argument ad hominem.
You could, but people have to be open to reason and be able to admit they might be wrong in order to be willing to change their position.
But thank you for the well reasoned comments and the examples. As you pointed out (and was pointed out to me years ago and has stuck with me every since and I also point out) of the very few things the founding fathers put into the US Constitution, patents were considered key to the success of the country!
I wish more people would actually read the US Constitution (whether you are an American or not is irrelevant) - much like with Apple, what was left out is just as significant or more significant than what was put in. It really is a fairly simple document - but the concepts and framework it established founded the greatest nation this world has yet to see. I keep hoping we don't screw it up by overcomplicating things but the current bunch in Washington seems hell-bent on doing exactly that by expanding the federal government far larger than was ever intended. And for many of the repercussions we are now experiencing - if people were also not as ignorant as to the reasons the founding fathers originally established the federal/state government ratios they would realize that much of the economic and social problems we are facing today were predicted well in advance of their happening.
Sigh.... history, math, science... they aren't boring. Quite the contrary, they are essential to our collective survival.
Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.
Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?
And to make my response complete, I never said anyone was suggesting a wholesale elimination of the patent system. My point is that removing the brokers would vitiate the rights of small inventors and the unintended consequence of that would be the deterioration of the patent system.
Many people have tried to argue that "business method patents" and "software patents" are somehow a special class of methods that deserve special albeit poor treatment. However, anyone that has tried to propose a rule or a system to delineate between software patents and other methods can't do it. You're welcome to try. Maybe you can come up with something that the entire patent community has failed realize.
You refer to obviousness patents that "slip through the cracks". However, this statement usually comes from an infringer grasping at straws. RIM argued for years that the push email patents "just slipped through the cracks." The question I have for RIM and others making similar statements is, if you think the patent office screwed up, how is it that a district court judge and the federal circuit determined the patent was valid and infringed. Maybe the tens of millions that were spent interpreting the patent and hiring expert witnesses to explain it just wasn't enough effort to realize how the patent office just botched it. And if the Courts can't get it right after spending that kind of money, how do you propose funding this investigation at the patent office for every patent that gets issued? It is pure foolishness to think that you can legislate a bright line rule for obviousness. It can't be done. We have 225 years of jurisprudence developing our current patent law. The puppets in Congress aren't going to fix anything. They are going to break the system for whoever pays them the most money.
You could, but people have to be open to reason and be able to admit they might be wrong in order to be willing to change their position.
But thank you for the well reasoned comments and the examples. As you pointed out (and was pointed out to me years ago and has stuck with me every since and I also point out) of the very few things the founding fathers put into the US Constitution, patents were considered key to the success of the country!
I wish more people would actually read the US Constitution (whether you are an American or not is irrelevant) - much like with Apple, what was left out is just as significant or more significant than what was put in. It really is a fairly simple document - but the concepts and framework it established founded the greatest nation this world has yet to see. I keep hoping we don't screw it up by overcomplicating things but the current bunch in Washington seems hell-bent on doing exactly that by expanding the federal government far larger than was ever intended. And for many of the repercussions we are now experiencing - if people were also not as ignorant as to the reasons the founding fathers originally established the federal/state government ratios they would realize that much of the economic and social problems we are facing today were predicted well in advance of their happening.
Sigh.... history, math, science... they aren't boring. Quite the contrary, they are essential to our collective survival.
You raise a really good point, which is that there is suppose to be a federal/state balance. Too often these days everyone looks to the Federal government to solve all their problems. There is a belief that perfection can be achieved if we could just get Congress to pass the right laws. I disagree. We are better off accepting that there is no perfect solution. The best we can do is a proper balance.
The reason our economy beat the British economy in the 1800s is because we had thousands of "nobodies" trying to get patents on mechanical devices like steam engines.
Until well in to the 20th century US ignored patents from elsewhere in the world. US 'inventors' copied patents from Britain and elsewhere and patented them in USA.
There are many reasons why the US economy beat the British, theft of IP would be one, energy costs another, the ability to colonize more of the same land mass without having to sail to another continent, size of population etc etc.
Secondly, in the United States there never has been a rule against patenting "software methods". In the early 80s there was uncertainty about how to draft proper "software" claims and whether the claims would be enforceable. However, uncertainty isn't the same thing as saying that software wasn't patentable.
In all but a few cases software was not patentable until the Supreme court decision that changed the interpretation of patent law, because mathematics hadn't been patented and software was held to be no more than concrete examples of mathematics. No more than a handful of software patents were issued each year prior to that decision and even fewer of them were ever asserted. Patents simply didn't matter, but it didn't stop people from inventing high level languages, or modern OSes or new classes of productivity applications.
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Thirdly, the major driving force behind software in the 80s was the need to operate new hardware. Patent attorneys knew how to draft patent claims to the hardware and since the software was tied to the hardware, it made sense to claim the hardware. But make no mistake, the patent system was a huge part of the advancement of the software industry. It took some time, but patent attorneys eventually developed techniques for claiming computer-implemented methods (i.e., software) and courts resolved the ambiguity in favor of patentability.
Pure and utter rubbish. In the 80s the growth was in personal computers which were not dedicated devices but general purpose, there was no reason whatsoever to write patents as hardware patents other than the fact that it made the patents more likely to stand. Did you even use a computer in the 80s? The patent system had no relevance to the development of the software industry. You won't find a single early patent on the spreadsheet, the wordprocessor, etc. I know that there was one on a memory management algorithm used in Unix, and one on huffman encoding but those were easily avoided because they covered specific algorithms, not general purpose 'methods' that described any class of algorithm solving the problem. They weren't software patents as we now understand them.
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So you want evidence that the patent system works for software? How about the fact that the software industry exploded in the U.S. as compared to Europe. .
That would be a valid argument if the software industry hadn't exploded in the US and not Europe before patents were commonly granted on patents in software even in the US. If you could show that until the 80s American software was only on par with European, and that afterwards it took off - you would have a case.
But you can't. because it didn't - you don't have a case, you have wishful thinking.
The existence of the dominant US software industry is no more proof that software patents are key than the existence of the dominant US movie and television industries are proof that the EU is missing key IP protection in those industries - it's only proof that the large US market was and is a huge advantage.
Are they going to go after Apple? After all Apple did just buy a load of patents for things they didn't invent themselves and will now probably charge people to use the technology.
In all but a few cases software was not patentable until the Supreme court decision that changed the interpretation of patent law, because mathematics hadn't been patented and software was held to be no more than concrete examples of mathematics. No more than a handful of software patents were issued each year prior to that decision and even fewer of them were ever asserted. Patents simply didn't matter, but it didn't stop people from inventing high level languages, or modern OSes or new classes of productivity applications.
Pure and utter rubbish. In the 80s the growth was in personal computers which were not dedicated devices but general purpose, there was no reason whatsoever to write patents as hardware patents other than the fact that it made the patents more likely to stand. Did you even use a computer in the 80s? The patent system had no relevance to the development of the software industry. You won't find a single early patent on the spreadsheet, the wordprocessor, etc. I know that there was one on a memory management algorithm used in Unix, and one on huffman encoding but those were easily avoided because they covered specific algorithms, not general purpose 'methods' that described any class of algorithm solving the problem. They weren't software patents as we now understand them.
That would be a valid argument if the software industry hadn't exploded in the US and not Europe before patents were commonly granted on patents in software even in the US. If you could show that until the 80s American software was only on par with European, and that afterwards it took off - you would have a case.
But you can't. because it didn't - you don't have a case, you have wishful thinking.
The existence of the dominant US software industry is no more proof that software patents are key than the existence of the dominant US movie and television industries are proof that the EU is missing key IP protection in those industries - it's only proof that the large US market was and is a huge advantage.
Ok, admittedly my arguments were weak in those three respects.
I still haven't had anyone present a cogent argument as to why computer methods shouldn't be patentable. The idea that we didn't need them to get the industry started isn't persuasive. That would be like saying we aren't going to allow patents related to boats because the boating industry started without a patent system.
Consider the fact that as software becomes more sophisticated, it will require more investment to invent and consequently more need for patents. Also, I think disallowing patents on software is really short-sighted. The industry will mature in the next decade or so and all those patents are going to expire and be dedicated to the public. I see no harm in that. The detrimental affects of letting Congress muck up the patent system isn't worth the inconvenience placed on a few software developers. Luckily there are enough other industries where business value patents that I can hope the patent system doesn't get ruined.
If software patents are done away with, all the software engineers will get what they deserve. Everyone will copy your stuff. You might not think that is a big deal, but when I hire a dude from India to copy your software and then out spend you on advertising and take your market share, you won't care right? Or maybe you won't. Maybe all these people complaining about software patents are the kind of people that right crappy software that no one cares to copy.
What a dumb shit. Is that the most intelligent thing you can say? You're the kind of person that can only bitch about a lawyer because if you ever had to compete intellectually with a lawyer you would get your ass kicked. There are plenty of people on this site that disagree with me and have something intelligent to say. You're comment is a disgrace. Why don't you go hang out in a yahoo blog with other thoughtless 15 year olds.
Are they going to go after Apple? After all Apple did just buy a load of patents for things they didn't invent themselves and will now probably charge people to use the technology.
This is exactly my point. Since Apple has a sales team and manufacturing facility, we deem them worthy of being able to enforce a patent. It seems ridiculous to me that we would draw a distinction between practicing inventors and non-practicing inventors. The reality is inventing doesn't have anything to do with selling. The only reason we do it is because the software patent phobes use it as a tactic to inhibit the patent system.
You know, Ash, your argument almost holds water, except the problem is most of these patents are obvious computer techniques that are broad concepts, not some brand new idea. For example, one patent that the trolls have used against Apple, Microsoft, and others is the concept of "downloading software over a medium [let's say, in this case, the Internet] to update a program or operating system." Really?! Yup, that's certainly inventive, no one would've EVER come up with that idea!
And these patent holders are NOT inventors, as you like to refer to them. With companies like Lodsys, the business plan is to sue. They could care less about "defending" their patent they purchased. They *want* companies to infringe on their patents.
The old traditional "invention" doesn't aptly apply to software. Unlike brand new physical inventions, in software, everything is built upon prior art. Everything. In software, it's all how the blocks are re-arranged to come up with something new. Even the original Apple I, the computer that kick-started the entire personal computer industry, was not "invented" out of thin air.
Thanks for the intelligent discussion. You argue your side very well, but I am always left feeling oddly unsatisfied--that something is missing. That something about how we connect the dots between the wholesale trading of patents for its own sake and the protection and fostering of individual inventors. You seem to throw your hands up and take the position that any tinkering withe the status quo, any effort to rejigger and improve, will inevitably be a bad thing.
Beyond that is simply that I must consider the source of your argument. Since it appears your livelihood depends on the status quo, I should assume you have a strong bias. You are an advocate, not a neutral broker of ideas on this matter. I must assume that your income increases in proportion to the complexity of the law and practice of patent defense.
Since you have also said that you are not opposed to reform, I would like to hear what reforms you think are necessary. Even those that might make less business for you.
What a dumb shit. Is that the most intelligent thing you can say? You're the kind of person that can only bitch about a lawyer because if you ever had to compete intellectually with a lawyer you would get your ass kicked. There are plenty of people on this site that disagree with me and have something intelligent to say. You're comment is a disgrace. Why don't you go hang out in a yahoo blog with other thoughtless 15 year olds.
You have to have a thick skin and a sense of humor around here. Don't take it personally, especially since the joke really wasn't very good.
Personally I find the one about why lawyers wear neckties to be much funnier. . .
You know, Ash, your argument almost holds water, except the problem is most of these patents are obvious computer techniques that are broad concepts, not some brand new idea. For example, one patent that the trolls have used against Apple, Microsoft, and others is the concept of "downloading software over a medium [let's say, in this case, the Internet] to update a program or operating system." Really?! Yup, that's certainly inventive, no one would've EVER come up with that idea!
And these patent holders are NOT inventors, as you like to refer to them. With companies like Lodsys, the business plan is to sue. They could care less about "defending" their patent they purchased. They *want* companies to infringe on their patents.
The old traditional "invention" doesn't aptly apply to software. Unlike brand new physical inventions, in software, everything is built upon prior art. Everything. In software, it's all how the blocks are re-arranged to come up with something new. Even the original Apple I, the computer that kick-started the entire personal computer industry, was not "invented" out of thin air.
Frankly, I don't have the in-depth experience to argue one way or the other about what a lot of you are saying in this forum. However, Rick V makes the one point that no one seems to be discussing, and is the one that always seemed to be the biggest problem to me (with my limited knowledge). The fact that patents are awarded for things:
? With prior art
? That are extremely obvious (like the downloading example Rick presented)
is what I've always thought to be the biggest problem with the current patent system. To me, the reals trolls were the ones who managed to get patents in these cases and then suing ppl.
Again, my firsthand knowledge about these problems is extremely limited; and is largely presented to me through Slashdot, which has a pretty obvious bias.
Can anyone respond to these problems? Isn't this a real issue?
Comments
My comment to the iOS developers is, if you don't want to infringe the patent, take the patented feature out of your products.
So your advice is for developers to completely cave in. Back off and gut your product the moment anyone comes along with a claim, no matter how outrageous. (And to be sure, Lodsys' claim is quite outrageous.) Nice. That's the spirit that makes America not so great anymore. Thanks for ruining our country.
There is nothing inherently unique about software. Software patents are methods implemented in a computing environment. They should be just as patentable as a method for making a chemical compound.
There speaks a man who has never produced a piece of software in his life. The method for making a chemical compound would be akin to the source-code of software, which is not patentable, but is protectable by copyright. A software patent is akin to an entire class of reactions - it's like patenting oxidation. You've no explanation whatsoever for the mass of creativity that occurred in software when there was no patent protection. All you can do is ignore it, because it doesn't fit your argument. Stop denying reality and accept that patents have had no positive impact on software innovation.
The problem I have with the consortium is that it alleges that Intellectual Ventures is the problem and that we need to rid the system of brokers. These "patent reform measures" are not limited to software. They attack the broker, which is the only market the small guys have since they can't afford to fight the big companies in court and the big companies won't buy their patents. What is the small inventor suppose to do?
From a legal perspective they attack them, because from a legal perspective they are the greatest risk to independent developers. From a legislative perspective they will no doubt be going after the entire software patent domain.
The NPEs are a problem in many ways - because they can use the flimsiest patents in against weak defendants with no risk of counter-attack, and no risk of bad PR. The only way to retaliate is to actively seek to invalidate their patents, which is exactly what Anthill is saying they will do. It's also completely within the existing law and an entirely appropriate response - your attempt to paint it otherwise demonstrates your complete hypocrisy.
Intellectual Ventures selling a license to Apple and then selling the patent to another entity that indirectly sues Apple is a scum bag thing to do. However, you can't get rid of the Broker unless Apple is willing to buy from the small inventor. The solution is for companies to start buying up patents before Intellectual Ventures does. Changing the patent system to prevent small inventors from having a market to sell their patents is not the correct solution.
You are presupposing that anthill is trying to ban the sale of patents, that would be impossible because you could simply sell the companies that held them. You have no evidence that this is anthill's aim whatsoever. Changing the scope of what can be patented however does not require a constitutional amendment but only regular legislative change.
Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.
Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?
The cogent argument is quite simple:
The inventions created by small inventors have been and always will be a critical component of the patent system. Without small inventors, big companies eventually get together and agree what they will and will not do to each other's markets. A small inventor doesn't have any market share so a small inventor will never be invited to the "oligarchy party." Instead, the small inventor will try and beat the big companies to new technology to either make them pay or lure market share by the advancement in the technology. This explains why the small inventor is critical. The patent system has worked this way for more than 200 years. The reason our economy beat the British economy in the 1800s is because we had thousands of "nobodies" trying to get patents on mechanical devices like steam engines. The British made the patent system more accessible to the affluent and well trained. In contrast, the U.S. was handing out patents to anyone that could think of something novel. Big companies would then buy up those patents or design around them and get their own patents.
The current proposed reforms have a misguided belief that software is unique and the patent system is unnecessary for software. They mistake rapid development in software as evidence that the patent system is not necessary. However, software is just the "railroad of our time". The fact that the technology is developing so quickly isn't evidence that the patent system isn't necessary, it is evidence that it is working.
The software industry perceives a problem with "brokers" such as Intellectual Ventures who buy up software patents from small inventors who have no one else to sell to. For some reason, the current software industry has decided to fight against small inventors instead of buy up their patents. Big companies have learned that if they fight small inventors with multi-million dollar lawsuits the small inventors go away because they can't afford the fight. The brokers have come in to fill the void. Now the only thing a small inventor can do is sell his or her patents for pennies on the dollar to a broker who then matches the capital resources of a big companies and plays the game.
The current reforms attempt to eliminate the broker, but they don't do anything to stop the underhanded tactics by big companies to avoid paying small inventors. Moreover, small inventors are the only group in this scenario that is not represented in politics. I see the rights of the small inventor being slowly eroded year after year. For example, the recent decision in the Ebay case did away with permanent injunctions for non-practicing inventors. This decision was targeted at the "brokers" but it had a huge damaging impact on small inventors. Small inventors rarely have market share and so they don't sell products and can't get a permanent injunction. In essence, Ebay took away the very thing that the Constitution says an inventor should have, which is the right to exclude (i.e., a permanent injunction). This decision was clearly directed at "brokers," but it hit hard on non-practicing inventors. If the software community succeeds in destroying "brokers" the small inventor won't anyone to sell to. A small inventor isn't going to spend $15,000 on a patent if he or she can't enforce the patent or sell it. When that happens, we'll begin the slow but sure process where companies establish their markets and then collaborate to maintain them (if you want a good example of this, check out the Cement industry). I know it is hard to believe that such a thing will happen when you are experiencing the rapid growth that we have now. But just you wait. If you remove the brokers without fixing the litigation and permanent injunction problem, you will ruin the patent system. Policies take a decade or so to have their effect, but it will happen. It will happen right under your nose and you won't know it until it's too late.
The way I see it, the software industry is in the process of ruining a perfectly good 225 year old patent system.
There speaks a man who has never produced a piece of software in his life. The method for making a chemical compound would be akin to the source-code of software, which is not patentable, but is protectable by copyright. A software patent is akin to an entire class of reactions - it's like patenting oxidation. You've no explanation whatsoever for the mass of creativity that occurred in software when there was no patent protection. All you can do is ignore it, because it doesn't fit your argument. Stop denying reality and accept that patents have had no positive impact on software innovation.
From a legal perspective they attack them, because from a legal perspective they are the greatest risk to independent developers. From a legislative perspective they will no doubt be going after the entire software patent domain.
The NPEs are a problem in many ways - because they can use the flimsiest patents in against weak defendants with no risk of counter-attack, and no risk of bad PR. The only way to retaliate is to actively seek to invalidate their patents, which is exactly what Anthill is saying they will do. It's also completely within the existing law and an entirely appropriate response - your attempt to paint it otherwise demonstrates your complete hypocrisy.
You are presupposing that anthill is trying to ban the sale of patents, that would be impossible because you could simply sell the companies that held them. You have no evidence that this is anthill's aim whatsoever. Changing the scope of what can be patented however does not require a constitutional amendment but only regular legislative change.
I never said the legislative reform wasn't legal. I'm saying the attempted reform will ruin a perfectly good patent system that has been around for 225 years and has made this country what it is. You are absolutely correct that the people of this country are free to persuade their legislatures to *uck it up.
Your assume wrong. I have written software. I even signed up as an apple developer and designed my own iOS app but haven't gotten around to coding it up.
Please spare me the lecture on patents. I'm a patent attorney.
I do have an explanation for the mass of creativity during the period when there was allegedly no software patents. First of all, lets get one thing straight, "software patents" are really nothing more than a method implemented on a computing device. Such methods are no different than any other method. Methods require a series of acts that must be performed to effectuate a desired result. Whether the steps involve displaying items on a screen and interactions with an interface or whether the steps involve mixing one reagent with another agent, they are all method steps. And by the way, I've actually gotten a patent allowed where the point of novelty in the method was an oxidation step. (it was a method for preparing a carbon nanomaterial).
Secondly, in the United States there never has been a rule against patenting "software methods". In the early 80s there was uncertainty about how to draft proper "software" claims and whether the claims would be enforceable. However, uncertainty isn't the same thing as saying that software wasn't patentable. We just didn't know how it was all going to work out.
Thirdly, the major driving force behind software in the 80s was the need to operate new hardware. Patent attorneys knew how to draft patent claims to the hardware and since the software was tied to the hardware, it made sense to claim the hardware. But make no mistake, the patent system was a huge part of the advancement of the software industry. It took some time, but patent attorneys eventually developed techniques for claiming computer-implemented methods (i.e., software) and courts resolved the ambiguity in favor of patentability.
So you want evidence that the patent system works for software? How about the fact that the software industry exploded in the U.S. as compared to Europe. Europe tried to take a much stricter approach to software patents. In the end, I don't think they succeeded (because the reality is that it is rather difficult to distinguish a computer implemented method claim from other types of method claims). Nevertheless, while the U.S. was breaking new ground with their "computer-implemented methods" the EU was announcing that they wouldn't have anything to do with it. The software industry in Europe is a joke compared to the U.S. Do you need a corollary example? The EU has strong patent protection on pharmaceuticals and medical devices but you can't get patents on medical procedures. You can in the U.S. Guess what? The research on medical procedures in the EU pales in comparison to the U.S., but the EU is very strong in big pharma and medical devices. I could go on but.........
So your advice is for developers to completely cave in. Back off and gut your product the moment anyone comes along with a claim, no matter how outrageous. (And to be sure, Lodsys' claim is quite outrageous.) Nice. That's the spirit that makes America not so great anymore. Thanks for ruining our country.
That is not what I'm suggesting at all. The first step is to evaluate the claims. If the patent is invalid then invalidate the patent. If the patent is valid, either license the patent or modify the product so that it doesn't infringe the patent.
I never said Lodsys claim wasn't outrageous. To be sure they are a bunch of scum bags for suing Apple's developers when they know that Apple has already paid for a license.
I don't know how many times and different ways I can say this, but my beef with this Consortium is that they want to eliminate "non-practicing inventors" and "brokers." No matter how much I wish brokers weren't necessary, they are. They provide a critical form of balance in a war that was started by companies not willing to pay small inventors a reasonable fee for their inventions. The patent system isn't broken. The licensing system is broken. Start paying small inventors for their inventions and you won't have to deal with bastards like the people from Lodsys.
Your argument that I'm "ruining our country" is an argument ad hominem.
I could go on but.........
You could, but people have to be open to reason and be able to admit they might be wrong in order to be willing to change their position.
But thank you for the well reasoned comments and the examples. As you pointed out (and was pointed out to me years ago and has stuck with me every since and I also point out) of the very few things the founding fathers put into the US Constitution, patents were considered key to the success of the country!
I wish more people would actually read the US Constitution (whether you are an American or not is irrelevant) - much like with Apple, what was left out is just as significant or more significant than what was put in. It really is a fairly simple document - but the concepts and framework it established founded the greatest nation this world has yet to see. I keep hoping we don't screw it up by overcomplicating things but the current bunch in Washington seems hell-bent on doing exactly that by expanding the federal government far larger than was ever intended. And for many of the repercussions we are now experiencing - if people were also not as ignorant as to the reasons the founding fathers originally established the federal/state government ratios they would realize that much of the economic and social problems we are facing today were predicted well in advance of their happening.
Sigh.... history, math, science... they aren't boring. Quite the contrary, they are essential to our collective survival.
Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.
Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?
And to make my response complete, I never said anyone was suggesting a wholesale elimination of the patent system. My point is that removing the brokers would vitiate the rights of small inventors and the unintended consequence of that would be the deterioration of the patent system.
Many people have tried to argue that "business method patents" and "software patents" are somehow a special class of methods that deserve special albeit poor treatment. However, anyone that has tried to propose a rule or a system to delineate between software patents and other methods can't do it. You're welcome to try. Maybe you can come up with something that the entire patent community has failed realize.
You refer to obviousness patents that "slip through the cracks". However, this statement usually comes from an infringer grasping at straws. RIM argued for years that the push email patents "just slipped through the cracks." The question I have for RIM and others making similar statements is, if you think the patent office screwed up, how is it that a district court judge and the federal circuit determined the patent was valid and infringed. Maybe the tens of millions that were spent interpreting the patent and hiring expert witnesses to explain it just wasn't enough effort to realize how the patent office just botched it. And if the Courts can't get it right after spending that kind of money, how do you propose funding this investigation at the patent office for every patent that gets issued? It is pure foolishness to think that you can legislate a bright line rule for obviousness. It can't be done. We have 225 years of jurisprudence developing our current patent law. The puppets in Congress aren't going to fix anything. They are going to break the system for whoever pays them the most money.
You could, but people have to be open to reason and be able to admit they might be wrong in order to be willing to change their position.
But thank you for the well reasoned comments and the examples. As you pointed out (and was pointed out to me years ago and has stuck with me every since and I also point out) of the very few things the founding fathers put into the US Constitution, patents were considered key to the success of the country!
I wish more people would actually read the US Constitution (whether you are an American or not is irrelevant) - much like with Apple, what was left out is just as significant or more significant than what was put in. It really is a fairly simple document - but the concepts and framework it established founded the greatest nation this world has yet to see. I keep hoping we don't screw it up by overcomplicating things but the current bunch in Washington seems hell-bent on doing exactly that by expanding the federal government far larger than was ever intended. And for many of the repercussions we are now experiencing - if people were also not as ignorant as to the reasons the founding fathers originally established the federal/state government ratios they would realize that much of the economic and social problems we are facing today were predicted well in advance of their happening.
Sigh.... history, math, science... they aren't boring. Quite the contrary, they are essential to our collective survival.
You raise a really good point, which is that there is suppose to be a federal/state balance. Too often these days everyone looks to the Federal government to solve all their problems. There is a belief that perfection can be achieved if we could just get Congress to pass the right laws. I disagree. We are better off accepting that there is no perfect solution. The best we can do is a proper balance.
The reason our economy beat the British economy in the 1800s is because we had thousands of "nobodies" trying to get patents on mechanical devices like steam engines.
Until well in to the 20th century US ignored patents from elsewhere in the world. US 'inventors' copied patents from Britain and elsewhere and patented them in USA.
There are many reasons why the US economy beat the British, theft of IP would be one, energy costs another, the ability to colonize more of the same land mass without having to sail to another continent, size of population etc etc.
Secondly, in the United States there never has been a rule against patenting "software methods". In the early 80s there was uncertainty about how to draft proper "software" claims and whether the claims would be enforceable. However, uncertainty isn't the same thing as saying that software wasn't patentable.
In all but a few cases software was not patentable until the Supreme court decision that changed the interpretation of patent law, because mathematics hadn't been patented and software was held to be no more than concrete examples of mathematics. No more than a handful of software patents were issued each year prior to that decision and even fewer of them were ever asserted. Patents simply didn't matter, but it didn't stop people from inventing high level languages, or modern OSes or new classes of productivity applications.
Thirdly, the major driving force behind software in the 80s was the need to operate new hardware. Patent attorneys knew how to draft patent claims to the hardware and since the software was tied to the hardware, it made sense to claim the hardware. But make no mistake, the patent system was a huge part of the advancement of the software industry. It took some time, but patent attorneys eventually developed techniques for claiming computer-implemented methods (i.e., software) and courts resolved the ambiguity in favor of patentability.
Pure and utter rubbish. In the 80s the growth was in personal computers which were not dedicated devices but general purpose, there was no reason whatsoever to write patents as hardware patents other than the fact that it made the patents more likely to stand. Did you even use a computer in the 80s? The patent system had no relevance to the development of the software industry. You won't find a single early patent on the spreadsheet, the wordprocessor, etc. I know that there was one on a memory management algorithm used in Unix, and one on huffman encoding but those were easily avoided because they covered specific algorithms, not general purpose 'methods' that described any class of algorithm solving the problem. They weren't software patents as we now understand them.
So you want evidence that the patent system works for software? How about the fact that the software industry exploded in the U.S. as compared to Europe. .
That would be a valid argument if the software industry hadn't exploded in the US and not Europe before patents were commonly granted on patents in software even in the US. If you could show that until the 80s American software was only on par with European, and that afterwards it took off - you would have a case.
But you can't. because it didn't - you don't have a case, you have wishful thinking.
The existence of the dominant US software industry is no more proof that software patents are key than the existence of the dominant US movie and television industries are proof that the EU is missing key IP protection in those industries - it's only proof that the large US market was and is a huge advantage.
Spoken like a patent attorney . . . oh wait, you actually are. That explains it.
How can you tell if a lawyer is lying?
You can see his lips moving!
In all but a few cases software was not patentable until the Supreme court decision that changed the interpretation of patent law, because mathematics hadn't been patented and software was held to be no more than concrete examples of mathematics. No more than a handful of software patents were issued each year prior to that decision and even fewer of them were ever asserted. Patents simply didn't matter, but it didn't stop people from inventing high level languages, or modern OSes or new classes of productivity applications.
Pure and utter rubbish. In the 80s the growth was in personal computers which were not dedicated devices but general purpose, there was no reason whatsoever to write patents as hardware patents other than the fact that it made the patents more likely to stand. Did you even use a computer in the 80s? The patent system had no relevance to the development of the software industry. You won't find a single early patent on the spreadsheet, the wordprocessor, etc. I know that there was one on a memory management algorithm used in Unix, and one on huffman encoding but those were easily avoided because they covered specific algorithms, not general purpose 'methods' that described any class of algorithm solving the problem. They weren't software patents as we now understand them.
That would be a valid argument if the software industry hadn't exploded in the US and not Europe before patents were commonly granted on patents in software even in the US. If you could show that until the 80s American software was only on par with European, and that afterwards it took off - you would have a case.
But you can't. because it didn't - you don't have a case, you have wishful thinking.
The existence of the dominant US software industry is no more proof that software patents are key than the existence of the dominant US movie and television industries are proof that the EU is missing key IP protection in those industries - it's only proof that the large US market was and is a huge advantage.
Ok, admittedly my arguments were weak in those three respects.
I still haven't had anyone present a cogent argument as to why computer methods shouldn't be patentable. The idea that we didn't need them to get the industry started isn't persuasive. That would be like saying we aren't going to allow patents related to boats because the boating industry started without a patent system.
Consider the fact that as software becomes more sophisticated, it will require more investment to invent and consequently more need for patents. Also, I think disallowing patents on software is really short-sighted. The industry will mature in the next decade or so and all those patents are going to expire and be dedicated to the public. I see no harm in that. The detrimental affects of letting Congress muck up the patent system isn't worth the inconvenience placed on a few software developers. Luckily there are enough other industries where business value patents that I can hope the patent system doesn't get ruined.
If software patents are done away with, all the software engineers will get what they deserve. Everyone will copy your stuff. You might not think that is a big deal, but when I hire a dude from India to copy your software and then out spend you on advertising and take your market share, you won't care right? Or maybe you won't. Maybe all these people complaining about software patents are the kind of people that right crappy software that no one cares to copy.
How can you tell if a lawyer is lying?
You can see his lips moving!
What a dumb shit. Is that the most intelligent thing you can say? You're the kind of person that can only bitch about a lawyer because if you ever had to compete intellectually with a lawyer you would get your ass kicked. There are plenty of people on this site that disagree with me and have something intelligent to say. You're comment is a disgrace. Why don't you go hang out in a yahoo blog with other thoughtless 15 year olds.
Are they going to go after Apple? After all Apple did just buy a load of patents for things they didn't invent themselves and will now probably charge people to use the technology.
This is exactly my point. Since Apple has a sales team and manufacturing facility, we deem them worthy of being able to enforce a patent. It seems ridiculous to me that we would draw a distinction between practicing inventors and non-practicing inventors. The reality is inventing doesn't have anything to do with selling. The only reason we do it is because the software patent phobes use it as a tactic to inhibit the patent system.
You know, Ash, your argument almost holds water, except the problem is most of these patents are obvious computer techniques that are broad concepts, not some brand new idea. For example, one patent that the trolls have used against Apple, Microsoft, and others is the concept of "downloading software over a medium [let's say, in this case, the Internet] to update a program or operating system." Really?! Yup, that's certainly inventive, no one would've EVER come up with that idea!
And these patent holders are NOT inventors, as you like to refer to them. With companies like Lodsys, the business plan is to sue. They could care less about "defending" their patent they purchased. They *want* companies to infringe on their patents.
The old traditional "invention" doesn't aptly apply to software. Unlike brand new physical inventions, in software, everything is built upon prior art. Everything. In software, it's all how the blocks are re-arranged to come up with something new. Even the original Apple I, the computer that kick-started the entire personal computer industry, was not "invented" out of thin air.
Beyond that is simply that I must consider the source of your argument. Since it appears your livelihood depends on the status quo, I should assume you have a strong bias. You are an advocate, not a neutral broker of ideas on this matter. I must assume that your income increases in proportion to the complexity of the law and practice of patent defense.
Since you have also said that you are not opposed to reform, I would like to hear what reforms you think are necessary. Even those that might make less business for you.
What a dumb shit. Is that the most intelligent thing you can say? You're the kind of person that can only bitch about a lawyer because if you ever had to compete intellectually with a lawyer you would get your ass kicked. There are plenty of people on this site that disagree with me and have something intelligent to say. You're comment is a disgrace. Why don't you go hang out in a yahoo blog with other thoughtless 15 year olds.
You have to have a thick skin and a sense of humor around here. Don't take it personally, especially since the joke really wasn't very good.
Personally I find the one about why lawyers wear neckties to be much funnier. . .
Ash471,
You know, Ash, your argument almost holds water, except the problem is most of these patents are obvious computer techniques that are broad concepts, not some brand new idea. For example, one patent that the trolls have used against Apple, Microsoft, and others is the concept of "downloading software over a medium [let's say, in this case, the Internet] to update a program or operating system." Really?! Yup, that's certainly inventive, no one would've EVER come up with that idea!
And these patent holders are NOT inventors, as you like to refer to them. With companies like Lodsys, the business plan is to sue. They could care less about "defending" their patent they purchased. They *want* companies to infringe on their patents.
The old traditional "invention" doesn't aptly apply to software. Unlike brand new physical inventions, in software, everything is built upon prior art. Everything. In software, it's all how the blocks are re-arranged to come up with something new. Even the original Apple I, the computer that kick-started the entire personal computer industry, was not "invented" out of thin air.
Frankly, I don't have the in-depth experience to argue one way or the other about what a lot of you are saying in this forum. However, Rick V makes the one point that no one seems to be discussing, and is the one that always seemed to be the biggest problem to me (with my limited knowledge). The fact that patents are awarded for things:
? With prior art
? That are extremely obvious (like the downloading example Rick presented)
is what I've always thought to be the biggest problem with the current patent system. To me, the reals trolls were the ones who managed to get patents in these cases and then suing ppl.
Again, my firsthand knowledge about these problems is extremely limited; and is largely presented to me through Slashdot, which has a pretty obvious bias.
Can anyone respond to these problems? Isn't this a real issue?