I think the biggest difference is reason that John Carmack made this quote:
“The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.”
It is possible to develop very similar software given a similar set of constraints. Should the first to market (or even first to idea phase with the largest pockets) be allowed to patent an idea that could be developed independently? When it comes to pharma, there is a large lead up time for the research required to create a new protein or medicine. Patenting the idea of having a medicine that cures headaches quicker would be in the same spirit as some of these software patents.
The fact is that Carmack holds a number of patents that has enabled him and his company to become very rich. I doubt he complains about that.
But the Supreme Court has voiced concerns with extending patent protection to software, which they declined to do on two previous occasions, and continuing questions with more recent cases. Changes may eventually come despite business interest protests.
As of today, software patents are legal and valid. Under US patent law, when the USPTO grants a patent, it is presumed valid. If the Supreme Court ever issues a ruling invalidating them, then that would change. But as of today, the law states that they are valid.
As of today, software patents are legal and valid. Under US patent law, when the USPTO grants a patent, it is presumed valid. If the Supreme Court ever issues a ruling invalidating them, then that would change. But as of today, the law states that they are valid.
It's completely relevant to the thread topic "questioning the need for software patents".
Irrelevant to you perhaps since you're having a different discussion about what is rather than what should be. I don't think anyone here is disagreeing about what is the current state of software patentability, including me.
I think the biggest difference is reason that John Carmack made this quote:
“The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.”
It is possible to develop very similar software given a similar set of constraints. Should the first to market (or even first to idea phase with the largest pockets) be allowed to patent an idea that could be developed independently? When it comes to pharma, there is a large lead up time for the research required to create a new protein or medicine. Patenting the idea of having a medicine that cures headaches quicker would be in the same spirit as some of these software patents.
You think the iPhone didn't cost a pretty penny to develop, manufacture and market? Why can't a supposedly creative company like Google innovate around Apple patents?
First-to-file is a perfectly fair criterion. It pushes innovation faster. Everybody knows the rules.
If anything is broken, it's Mr. Posner. He doesn't warrant the title of Judge, since he can't fulfill the obligations of the position.
How can you be so smart and so wrong? Patents are the lifes-blood of innovation. Without them, we'd eventually be ruled by oligarchs, since power would centralize as competition dropped away. Patents mean the pirates only win sometimes, not always. Doh!
Patenting an idea like "unlocking a phone" should not be patentable... Although, the code behind that, YES! that should be patentable...
Us programmers are egotists. When we invent something cool, we want to share it with the world rather than keep it to ourselves. Just look at the open software movement if you don't believe me.
I really love these blanket, unsubstantiated statements.
I suspect, that judge knows more about the law, then all people in this thread combined.
Patent wars started blocking progress. Taking in account speed of tecnological progress, patents should't last more than couple of years, imho.
Good thing no one cares about your opinion - humble or not.
In many industries, a patent that's only good for a couple of years would be worthless. It can take a decade or more to bring a pharmaceutical product to market. Your idea would basically make patents useless.
Patenting an idea like "unlocking a phone" should not be patentable... Although, the code behind that, YES! that should be patentable...
And, no one has patented the idea of unlocking a phone. What's been patented is the specific method for unlocking a phone, just like the specific way a physical lock works is patented. The code behind it is already copyrighted, but that's irrelevant, since you don't need the code behind it to steal the specific method, just like you don't need the exact alloy to steal the specific way a physical lock works. And, just like other lock manufacturers have no problem designing around competitors patents to make their own locks, Google, et al. should have no problem coming up with their own way of unlocking a phone, if they weren't lazy, dishonest and bent on copying the details of the iPhone as closely as possible, with the specific intent of confusing the general public into believing that there isn't a difference between iOS and the cheap knockoff known as Android.
That's the bottom line here, not that there aren't many ways to do things, and really, unlocking a phone is one that has any number of ways that it could be cleverly accomplished, but that certain software companies, with no integrity (i.e., Google), don't want to innovate their own ways, they simply want to copy the innovators. Patents are stifling innovation. Google is stifling innovation, or at the very least, showing now interest in it. In reality, patents do promote innovation by not allowing you to copy your competitors inventions, but forcing you to come up with your own. Google imply want to steal other people's work, and give it away for free to destroy markets. Do you want creativity or destruction?
Judge Posner didn’t say we don’t need patents in most industries. He said it’s not clear that we do. Huge difference. With regards to software patents (and “most industries” I guess), it’s a matter of incentives, and I think his point is that the patent incentive system as it stands is not necessary to drive innovation. Many commentators feel the same, but of course many disagree too. If you’re charitable, you can take his comments as shorthand for the proposition that the one-size-fits-all patent regime could be redesigned to be more efficient, with different schemes tailored to different industries in an effort to maximize social welfare.
If you get a bad taste in your mouth from a sitting judge discussing policy, that’s quite reasonable, but get used to it. Many judges have been professional scholars most of their lives and aren’t about to quit. But one shouldn’t just assume that these judges apply their policy beliefs instead of the law when they are on the bench.
On that note, I see a lot of accusations of bias as to Judge Posner; he dislikes software patents so he threw out the case. But in this entire thread, no one has even tried to explain how his alleged dislike of software patents resulted in dismissal. Remember, he threw the case out because neither party could prove harm (damages or the right to an injunction), even assuming valid and infringed patents. Does anyone think then that his damages analysis was an overly strict pretense to dismiss the case? (While he was certainly less forgiving than most other judges, I would attribute that to his economics background as opposed to an alleged animus for software patents. And no-nonsense is not per se grounds for appeal.)
P.S. My take on the idea/invention/implementation debate is that it’s a not-very-useful semantic argument. “Slide to unlock” is an idea, and “slide to unlock horizontally” is also an idea, just more specific. Either could be an invention, but the more specific idea is more likely to be novel and nonobvious. “Slide to unlock horizontally” is an implementation of “slide to unlock,” but “slide to unlock” is also an implementation of (say) “unlock.” One could argue that even the specific algorithms are a set of ideas, and the “true” implementation is the code that carries out the algorithmic ideas. Looking at copyright, there is an idea–expression dichotomy, where the just expression is copyrightable. In contrast, the idea can be patented, if it is patentable. I think where people get tripped up is that abstract ideas such as laws of nature or mathematical formulae cannot be patented. There is a line of Supreme Court cases that tries to explain when an idea is sufficiently rooted in the real world—when is an idea no longer “just an idea”? I feel like I’ve used a lot of words to say very little, but that’s kind of the point; don’t be tripped up in the semantics.
On that note, I see a lot of accusations of bias as to Judge Posner; he dislikes software patents so he threw out the case. But in this entire thread, no one has even tried to explain how his alleged dislike of software patents resulted in dismissal. Remember, he threw the case out because neither party could prove harm (damages or the right to an injunction), even assuming valid and infringed patents. Does anyone think then that his damages analysis was an overly strict pretense to dismiss the case?
Absolutely.
I think he decided the case before it even came before him. The entire proceeding was a pretense, and a mockery of our legal system. This was clearly a case where the judge, based on his personal biases, and not the law, was looking a) for a specific outcome, and b) looking to use a high profile case to make a point.
No, an activist judge who does more than the law allows him to do. Under the US Constitution, a judge's job is to INTERPRET the law. A judge who says "I don't like the law" and then refuses to enforce it is an activist judge.
I don't exactly agree with your definition*, but the label is typically tossed around in a way where it does come to mean, "I don't like his/her/their decision," often in Supreme Court cases, particularly when those leveling the accusation tend to ignore the parts of the Constitution that they don't like. But, the nature of our legal system, the incompleteness of written laws and the ambiguity of intent is such that it's impossible for the courts, particularly the Supreme Court, to not "make law" in many instances. The real question is whether they are acting in good faith, or deciding cases before they hear the arguments.
* I think that typically the accuser means that the judge(s) in question are legislating from the bench -- i.e., "making law", rather than "interpreting law"
This is like a cop saying "well, the snatched purse didn't contain cash or valuables, so I let the thief go, and the victim should just get over it". Or "well, the rapist was not successful in his sexual assault, so I decided to save the system some time and money and let the perpetrator go".
Quote:
Originally Posted by anonymouse
Absolutely.
I think he decided the case before it even came before him. The entire proceeding was a pretense, and a mockery of our legal system. This was clearly a case where the judge, based on his personal biases, and not the law, was looking a) for a specific outcome, and b) looking to use a high profile case to make a point.
Originally Posted by uguysrnutsI wonder if he can be held in contempt?
This is like a cop saying "well, the snatched purse didn't contain cash or valuables, so I let the thief go, and the victim should just get over it". Or "well, the rapist was not successful in his sexual assault, so I decided to save the system some time and money and let the perpetrator go".
To rule for an injunction there are four things that need to be established according to law. Proving damages is one of those. Apple could not satisfactorily establish the monetary damage they were claiming (and may have had a tactical reason not to set a reasonable and specific number) thus not fulfilling the requirements for an injunction. The judgement didn't come from thin-air when he denied both Apple and Motorola's requests.
Comments
What a very smart judge. His strategy is to essentially his head in the sand and hope the problem goes away.
Quote:
Originally Posted by bryanl
I think the biggest difference is reason that John Carmack made this quote:
“The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.”
It is possible to develop very similar software given a similar set of constraints. Should the first to market (or even first to idea phase with the largest pockets) be allowed to patent an idea that could be developed independently? When it comes to pharma, there is a large lead up time for the research required to create a new protein or medicine. Patenting the idea of having a medicine that cures headaches quicker would be in the same spirit as some of these software patents.
The fact is that Carmack holds a number of patents that has enabled him and his company to become very rich. I doubt he complains about that.
That's nice. Irrelevant, but nice.
As of today, software patents are legal and valid. Under US patent law, when the USPTO grants a patent, it is presumed valid. If the Supreme Court ever issues a ruling invalidating them, then that would change. But as of today, the law states that they are valid.
Quote:
Originally Posted by SpamSandwich
The fact is that Carmack holds a number of patents that has enabled him and his company to become very rich. I doubt he complains about that.
If that is true, can you please provide references?
As far as I know, he is outspoken against software patents. Here is an excerpt from something Carmack wrote in 2005:
"Yes, it is a legal tool that may help you against your competitors, but I'll have no part of it. Its basically mugging someone."
http://slashdot.org/comments.pl?sid=151312&cid=12701745
Quote:
Originally Posted by jragosta
That's nice. Irrelevant, but nice.
As of today, software patents are legal and valid. Under US patent law, when the USPTO grants a patent, it is presumed valid. If the Supreme Court ever issues a ruling invalidating them, then that would change. But as of today, the law states that they are valid.
It's completely relevant to the thread topic "questioning the need for software patents".
Irrelevant to you perhaps since you're having a different discussion about what is rather than what should be. I don't think anyone here is disagreeing about what is the current state of software patentability, including me.
Quote:
Originally Posted by bryanl
I think the biggest difference is reason that John Carmack made this quote:
“The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.”
It is possible to develop very similar software given a similar set of constraints. Should the first to market (or even first to idea phase with the largest pockets) be allowed to patent an idea that could be developed independently? When it comes to pharma, there is a large lead up time for the research required to create a new protein or medicine. Patenting the idea of having a medicine that cures headaches quicker would be in the same spirit as some of these software patents.
You think the iPhone didn't cost a pretty penny to develop, manufacture and market? Why can't a supposedly creative company like Google innovate around Apple patents?
First-to-file is a perfectly fair criterion. It pushes innovation faster. Everybody knows the rules.
If anything is broken, it's Mr. Posner. He doesn't warrant the title of Judge, since he can't fulfill the obligations of the position.
Quote:
Originally Posted by Sacto Joe
How can you be so smart and so wrong? Patents are the lifes-blood of innovation. Without them, we'd eventually be ruled by oligarchs, since power would centralize as competition dropped away. Patents mean the pirates only win sometimes, not always. Doh!
Patenting an idea like "unlocking a phone" should not be patentable... Although, the code behind that, YES! that should be patentable...
Quote:
Originally Posted by werdnanotroh
Patenting an idea like "unlocking a phone" should not be patentable... Although, the code behind that, YES! that should be patentable copyrighted...
...suggested correction.
Most software patents are ridiculed all over the world, and the US will have to fix their patent office mess one day or another.
I really love these blanket, unsubstantiated statements.
I suspect, that judge knows more about the law, then all people in this thread combined.
Patent wars started blocking progress. Taking in account speed of tecnological progress, patents should't last more than couple of years, imho.
Quote:
Originally Posted by Tallest Skil
Copyrights never expire. Ever.
That is just plain wrong. Completely and totally wrong. It would be unconstitutional to have copyrights that never expire.
Please learn the basics of the facts prior to stating opinions.
[url=http://www.??-???.net]??????[/url]---[url=http://www.sheshanpark.com]?????????????[/url]
Good thing no one cares about your opinion - humble or not.
In many industries, a patent that's only good for a couple of years would be worthless. It can take a decade or more to bring a pharmaceutical product to market. Your idea would basically make patents useless.
Quote:
Originally Posted by werdnanotroh
Patenting an idea like "unlocking a phone" should not be patentable... Although, the code behind that, YES! that should be patentable...
And, no one has patented the idea of unlocking a phone. What's been patented is the specific method for unlocking a phone, just like the specific way a physical lock works is patented. The code behind it is already copyrighted, but that's irrelevant, since you don't need the code behind it to steal the specific method, just like you don't need the exact alloy to steal the specific way a physical lock works. And, just like other lock manufacturers have no problem designing around competitors patents to make their own locks, Google, et al. should have no problem coming up with their own way of unlocking a phone, if they weren't lazy, dishonest and bent on copying the details of the iPhone as closely as possible, with the specific intent of confusing the general public into believing that there isn't a difference between iOS and the cheap knockoff known as Android.
That's the bottom line here, not that there aren't many ways to do things, and really, unlocking a phone is one that has any number of ways that it could be cleverly accomplished, but that certain software companies, with no integrity (i.e., Google), don't want to innovate their own ways, they simply want to copy the innovators. Patents are stifling innovation. Google is stifling innovation, or at the very least, showing now interest in it. In reality, patents do promote innovation by not allowing you to copy your competitors inventions, but forcing you to come up with your own. Google imply want to steal other people's work, and give it away for free to destroy markets. Do you want creativity or destruction?
Judge Posner didn’t say we don’t need patents in most industries. He said it’s not clear that we do. Huge difference. With regards to software patents (and “most industries” I guess), it’s a matter of incentives, and I think his point is that the patent incentive system as it stands is not necessary to drive innovation. Many commentators feel the same, but of course many disagree too. If you’re charitable, you can take his comments as shorthand for the proposition that the one-size-fits-all patent regime could be redesigned to be more efficient, with different schemes tailored to different industries in an effort to maximize social welfare.
If you get a bad taste in your mouth from a sitting judge discussing policy, that’s quite reasonable, but get used to it. Many judges have been professional scholars most of their lives and aren’t about to quit. But one shouldn’t just assume that these judges apply their policy beliefs instead of the law when they are on the bench.
On that note, I see a lot of accusations of bias as to Judge Posner; he dislikes software patents so he threw out the case. But in this entire thread, no one has even tried to explain how his alleged dislike of software patents resulted in dismissal. Remember, he threw the case out because neither party could prove harm (damages or the right to an injunction), even assuming valid and infringed patents. Does anyone think then that his damages analysis was an overly strict pretense to dismiss the case? (While he was certainly less forgiving than most other judges, I would attribute that to his economics background as opposed to an alleged animus for software patents. And no-nonsense is not per se grounds for appeal.)
P.S. My take on the idea/invention/implementation debate is that it’s a not-very-useful semantic argument. “Slide to unlock” is an idea, and “slide to unlock horizontally” is also an idea, just more specific. Either could be an invention, but the more specific idea is more likely to be novel and nonobvious. “Slide to unlock horizontally” is an implementation of “slide to unlock,” but “slide to unlock” is also an implementation of (say) “unlock.” One could argue that even the specific algorithms are a set of ideas, and the “true” implementation is the code that carries out the algorithmic ideas. Looking at copyright, there is an idea–expression dichotomy, where the just expression is copyrightable. In contrast, the idea can be patented, if it is patentable. I think where people get tripped up is that abstract ideas such as laws of nature or mathematical formulae cannot be patented. There is a line of Supreme Court cases that tries to explain when an idea is sufficiently rooted in the real world—when is an idea no longer “just an idea”? I feel like I’ve used a lot of words to say very little, but that’s kind of the point; don’t be tripped up in the semantics.
Quote:
Originally Posted by Law Talkin' Guy
On that note, I see a lot of accusations of bias as to Judge Posner; he dislikes software patents so he threw out the case. But in this entire thread, no one has even tried to explain how his alleged dislike of software patents resulted in dismissal. Remember, he threw the case out because neither party could prove harm (damages or the right to an injunction), even assuming valid and infringed patents. Does anyone think then that his damages analysis was an overly strict pretense to dismiss the case?
Absolutely.
I think he decided the case before it even came before him. The entire proceeding was a pretense, and a mockery of our legal system. This was clearly a case where the judge, based on his personal biases, and not the law, was looking a) for a specific outcome, and b) looking to use a high profile case to make a point.
Quote:
Originally Posted by jragosta
No, an activist judge who does more than the law allows him to do. Under the US Constitution, a judge's job is to INTERPRET the law. A judge who says "I don't like the law" and then refuses to enforce it is an activist judge.
I don't exactly agree with your definition*, but the label is typically tossed around in a way where it does come to mean, "I don't like his/her/their decision," often in Supreme Court cases, particularly when those leveling the accusation tend to ignore the parts of the Constitution that they don't like. But, the nature of our legal system, the incompleteness of written laws and the ambiguity of intent is such that it's impossible for the courts, particularly the Supreme Court, to not "make law" in many instances. The real question is whether they are acting in good faith, or deciding cases before they hear the arguments.
* I think that typically the accuser means that the judge(s) in question are legislating from the bench -- i.e., "making law", rather than "interpreting law"
I wonder if he can be held in contempt?
This is like a cop saying "well, the snatched purse didn't contain cash or valuables, so I let the thief go, and the victim should just get over it". Or "well, the rapist was not successful in his sexual assault, so I decided to save the system some time and money and let the perpetrator go".
Quote:
Originally Posted by anonymouse
Absolutely.
I think he decided the case before it even came before him. The entire proceeding was a pretense, and a mockery of our legal system. This was clearly a case where the judge, based on his personal biases, and not the law, was looking a) for a specific outcome, and b) looking to use a high profile case to make a point.
Quote:
Originally Posted by uguysrnuts
This is like a cop saying "well, the snatched purse didn't contain cash or valuables, so I let the thief go, and the victim should just get over it". Or "well, the rapist was not successful in his sexual assault, so I decided to save the system some time and money and let the perpetrator go".
To rule for an injunction there are four things that need to be established according to law. Proving damages is one of those. Apple could not satisfactorily establish the monetary damage they were claiming (and may have had a tactical reason not to set a reasonable and specific number) thus not fulfilling the requirements for an injunction. The judgement didn't come from thin-air when he denied both Apple and Motorola's requests.