59 thoughts on “Divided Congress Finds Common Ground in Patent Reform

  1. I’m concerned about some of the comments I’ve been reading here. We need to think about IP as private property owned by someone or some entity somewhat like real property. I’m not impressed with “Dilbert” project managers who don’t sign their blogs. If the “Dilbert” PM knew how to do his job he might recognize the value of creativity in both software developers and their contributions. The “Dilbert” PM would not be able to sustain his/her job if not for the creativity of software developer staff. Devaluing IP in any form is a bad idea and so is off-shoring. As we all know labor cost are minimal for large corporations the costs are everything else. First we institute tariffs on off shore labors then we level are managers and protect IP and our intangible labor asset.

    Humble Firmware developer
    Andrew

  2. Here are some quotes from and about a Ronald J. Riley. People have a right to know exactly who they’re taking advice from. My Riley is not a lawyer. This is from:
    link to blogs.business2.com posted by
    a writer named Capitalist on Thursday, August 03, 2006 at 08:39 PM

    He writes:

    Ronald J Riley is a nutcase. He posted literally thousands of hate-filled accusations against American Express, including these comments:

    “I was implying that the Amex family was inbreeding.”

    “If I am in the mood for a bit of fun I stick the phone between my legs and pass gas.”

    “I have the ear of tens of thousands of people in the inventor community.”

    “I have been kicking the tar out of NWA for about eight years and they have been totally powerless to stop me. I estimate that the negative PR has cost NWA millions of dollars.”

    “Is it true that American Express has a breeding program where they are crossbreeding their most obnoxious and ignorant staff to produce a superior race of Amex shills?”

    “I am willing to bet that all three of them can’t figure out when they need to wipe unless head stooge tells them.”

    “I believe that this is their form of foreplay, and that they are getting ready to mate. I surmise that they are planning to produce genetically tailored offspring for American Express.”

    “The top dogs are most full of dodo and as the dodo spreads out each successively lower tier gets covered.”

    “To be blunt, I make my living by eating CEO’s lunches. I am very good at it.”

    “The way you conduct yourself comes across as a young male with raging hormones. Either that or you have one of the worse cases of thingy envy I have ever seen in a women. “

    “I am a credentialed investigative journalist.”

    This is a SMALL sample of what this idiot posted. To see it all first-hand, just look on http://www.amexsux.com. There is a search function available.

    Here’s the kicker….someone found out that his claim against American Express was completely bogus!

    Posted by: Capitalist | Thursday, August 03, 2006 at 08:39 PM

  3. I guess the word ‘protection’ is not the right word to use in my situation- because I have none. Deterence factor or quotient would probably be better. Might a company be inclined to respect someone’s PPA if they thought that person will follow through in the total patent process and be granted the patent? Hard to say- too relative of a question-probably varies from company to company-the one I’m dealing with is family owned since 1908- do the heirs to the grandfather that started the company put high ideals on someone else’s property-don’t know, but I quess I’ll find out. Without a granted patent, it looks like a gamble to put it out there. Thanks for weighing in, Tom.

  4. Tom B. says “The question seems cut and dried to me, but evidently,it is not.”

    When it comes to legal advice, like many non-trivial aspects in life, one size does not fit all. There are no cut and dried answers in the law.

    Ever wonder why it seems that lawyers never give a straight answer? It is because the answer often depends upon the circumstances, the specific business goals, the financial situation, who the person is dealing with, what the person is really trying to do, etc. Usually, to answer a straightforward question much background information is needed in order for the answer to be good or meaningful.

    You keep asking about protection. Evidently, the word “protection” means something to you, but that meaning is not readily apparent to me. Protection against what? (Rhetorical question!) The meaning you have in mind needs to be explored so that someone can answer the concerns you have behind that question. That is not easy to do in this type of forum.

  5. I will seek the advice of a patent attorney on the safest method of disclosing in a patent pending condition( I might even go to the “big city” and seek one out).But my question will still be the same-Do I have any protection at all in a PPA pending state?- and would you sell me a non-disclosure agreement that would hold up in court, if need be. The question seems cut and dried to me, but evidently,it is not.

  6. Returning to the issue of open source socialists, and their claims that they produce real inventions.

    One point of giving a monopoly which excludes others to to spur those who are left on the outside looking in to invent other ways of doing the task. Then when they accept the contract to teach the invention others are spurred in the same way. This is what advances humanity’s collective good.

    Open source and free software types either are not good enough to produce subsequent inventions or the invention they are upset about is something really important. Either way they do not measure up, they know this is so, and they then do their best to steal the work of their betters.

    There have always been those who do and a much larger group of those who try to tear down because they are too lazy to build something greater themselves. I have always referred to the latter group as those who suffer from the little person syndrome.

    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  7. Tom B. says:
    “My PPA contains all the relevent info required by the USPTO- no claims but detailed drawings leaving no doubt what it is and how it works.”

    To echo what has been said before, if your invention is truly worth millions, you need to ensure that you have competent legal counsel representing you. Much more than good drawings in a PPA is required. There is a case, New Railhead Mfg vs. Vermeer Mfg, where the inventor lost the benefit of the PPA because, although the PPA showed the inventive portion in the drawings, the written description was not thorough enough to satisfy all the disclosure requirements. The invention in New Railhead was for a drilling tool. The inventor’s patent was invalid because there were offers for sale more than one year before the non-provisional filing date and the PPA could not be used.

    Patent attorneys do more than just file patent applications. A good patent attorney can give you advice on how to proceed with your invention, including the benefits and risks of using a non-disclosure agreement. An attorney can best answer the legal questions you are asking here. Granted, this advice comes at a cost, but, if the invention is truly valuable, it may be a small price to pay for a potentially large return.

  8. Thank you for the response-all of them. I was just trying to get a difinitive on whether a PPA gives one protection(deterence-that is, I know a full patent is needed for true interference)-it sounds like it is barely worth the paper its printed on. I suspected that. My PPA contains all the relevent info required by the USPTO- no claims but detailed drawings leaving no doubt what it is and how it works. That’s the whole problem- once I disclose to the tool manufacturer that wants to see it- my detailed drawings and specifications basically hands them the whole enchalada. Will this company be impressed by a piece of paper from the USPTO with my invention name and a file number on it- I have no idea-they will surely be impressed with the product invention itself. Second point-my invention is a steel forged hand tool embodiment in many variations- I can’t build these in my garage-I have no choice but to disclose so as to get them manufactured. My tool product is too good to sit on for 2-4 years that it takes to be granted a patent- I could be selling millions of them in the meantime- if one really has protection in a patent pending state. This is truly a dilemma. P.S. I was not trying to be cocky as a poster thought-just trying to get insight on a problem a lot of inventors face at disclosure time.

  9. Tom,

    You need to understand that industries are different: in high-tech field where I try to invent it is a normal Entrepreneurial Tradition
    for large incumbent manufacturers to rip off independent inventors. You would be absolutely out of luck trying to license anything to those companies…
    Same goes for automotive induistry (Remember Bob Kearns, the intermittent windshield wipers guy ?)
    Other industries might be different (I know that toy industry does license from individuals sometimes, but it’s still very complicated)
    I know nothing about tool industry, but in any case you should do a thorough research on each company you approach with your invention.
    Should some large company decide to rip you off, you are in for a very very long and prohibitively expensive legal nighmare (contingency lawyers etc.)
    But some of them might be better than others, so do your homework.

    Your PPA should meet all Patent Office requirements like Adequate Disclosure, enablement, best mode etc. to rely on it for priority date later on.
    It must be followed by a RPA within 1 year, with some pretty good set of claims. Don’t be too cheap on claims – all litigated patents have many claims, some run into thousands of claims. My patent has 68 claims, 9 of them are independent claims.
    It is only after your patent is officially granted that you can sue manufacturers for patent infringement, but this won’t happen in ther next 3-4-5-6-7… years from now (mine took 5.5 years from PPA to US Patent…)
    So be careful when taking your chances with those companies.

    On the positive (or negative – depends on your views :) side, you really have nothing to lose: all tools are usually self-revealing – once somebody sees it and plays with it, he can easily reproduce it. Which means you can either keep it in your head (or your garage) or show it to prospective licensee /manufacturer (after filing your PPA, of course), but as far as I understand, no trade secret protection is possible with most tools (maybe with some exceptions)
    My case is different – I could easily keep my invention a trade secret for quite a while because it’s not self-revealing.
    But I chose to file for patent protection back in 2001. Now, after EBay decision, I am starting to think that I made a huge mistake…

    Well, good luck to you, and best of luck to all of us, little guys

  10. Dear Tom Barniak,

    Joe was not speaking to you in “riddles”. Instead you were receiving his “signals” and decoding them into riddles. There is much more than the 1-year shelf life of a PPA at stake. No one here can know the specifics of your case, nor can they give you specific advise over the internet. Do take notice however that too many street myths abound about PPA’s. A PPA must meet 35 USC 112 just like a RPA must do so. If someone is advising you otherwise, you could be heading for trouble. I see too many people walking into my office with crappy PPA’s and a short fuse on their time to file a RPA. All I can do at that stage is to tell them to throw away their PPA and start figuring out real quick how to meet the requirements of 112. If your PPA is crap (they usually are), you do not have one year. Instead the prior art fuse is burning right under your feet. Don’t be so cocky. Listen to Joe. He is actually trying to help you out.

    Here is a hint: If your 1-in-a-town patent attorney inserted an “objects of the invention” clause into your PPA, start looking for a much bigger town and attorneys who are up to date with what is happening in the case law. Good luck.

  11. Mr. Barniak

    I did not mean to talk in riddles. I am not a patent attorney and so I am not going to give you specific legal advice on patent law. What I was trying to communicate to you was the need to get advice on a cost effective basis from a qualified professional. Risking your future on unqualified advice given anonymously is not prudent. Good luck with your efforts.

  12. Thanks Joe,

    I appreciate the input-but you spoke in riddles just like all patent attorneys do. Instead of puting forth the answer in a direct manner, you tell me that I have a certain time limit to consider. No kidding,Joe- I’m well aware of that fact-the ink is not even dry on my PPA yet-I have a year to file a RPA. And believe it or not, I have gone to the local patent attorney in town(only one) for help on my patents -by the hour. I’m not a cheapskate-i’ll probably be there again. My question to ‘small guy’ still stands-he’s in the trenches. Would you trust a piece of paper with a number on it for protection?

  13. Mr. Barniak

    One piece of advice which I’ve given in the past to people needing legal advice but afraid of the cost is to suggest that they go the lawyer and say: “Here’s $300.00 (to pick a number) for advice on xyz. Start with the most important points first and keep going until the $300.00 is used up.”
    :-)

  14. Mr. Barniak

    There are time limits on filing your invention and you should get some advice from a patent attorney on that issue as soon as possible and certainly before you show the invention to anyone.

  15. To small guy:

    You’re a garage inventor-good for you-so was Wilbur and Orrville.By your posts, you appear to be a pretty sharp guy.The intellectuals are good too, but I have a question for you, since you actually invent. Would you put your faith in a filed PPA for disclosure purposes-all the books tell you you are safe to disclose your invention once you have a file number but after reading this site, I have my doubts. My product invention is so kick-ass,I am deathly afraid to come forward with it-even though a large tool company( invention is tool related)is interested in seeing it(gave ‘em a teaser without disclosing) and either building it for me or getting involved by a partnership). Should I trust them not to say something like-” Wow, what a coincidence, our own inhouse engineers just came up with the same idea- thanks for coming in-have a nice day.” They were somewhat lukewarm to the idea of signing a non-disclosure-but I even have my doubts about one of those- any attorney on this site probably could have one of those invalidated in a heartbeat also. What the hell would you do-its downright scary out there? Thanks and answer if you’ld like-you don’t talk with marbles in your mouth like a lot do here.

  16. Hey, “real inventor”,

    Stop posting your lies here.

    Everybody in the inventor’s community knows who Mr. Riley is.

    And I am just a small garage inventor, sometimes English grammar-challenged when posting in this blog full of sophisticated lawyer-types.
    (Dennis knows where my posts come from)

    It just happens that Mr. Riley does a pretty good job standing for all of us – little guys with valid US Patents and no resources to protect them from big corporate bullies.

    And I know where your friends live: link to patentfairness.org

  17. anonymous, Robert Riley, and small guy are all the same person posing as different people, pretending to agree with each other.

    When the internet hates you, you know you have a problem
    link to news.com.com

    Get a life.

  18. R.J. Riley said “What the current system does not do is serve the interest of those who try to convert others intellectual property to their own use.”

    I can give a counter-example of this, where the current system is precisely serving the interest of somebody who is trying to convert another’s IP.

    The timeline is:
    1) Open-source software project develops software, the source code of which is available on the web.
    2) That project announces a new feature
    3) An “inventor” files a patent application, using the continuation process, that exactly covers the feature. (It’s incontravertable that the “inventor” knew about the software project; he’d written about it previously in an open forum) It’s important to note that this was filed _after_ seeing the source code from the open source project. Apparently they can prove that.
    4) This application issues as patent 6,530,329.
    5) “Inventor”‘s lawyer sends C&D with demand for more than $200,000 to one of the developers, tries to get one of the developers fired from his job, etc.
    6) So now they have to spend lots and lots of money & time defeating a patent that should never have been issued in the first place.

    Ok, Mr. Riley, when are you going to step up and defend that group of “small inventors”? I don’t use their software, but it looks to me like they’ve made some progress that lots of people appreciate.

  19. Dennis, Thank you for hosting this discussion under your tent and exposing many here to the debate about “Patent Deform” (or Reform as some manipulative types prefer to label it).

    Ron, Thank you for finally joining the fray here and driving your bulldozer through the Dilbert cubicles.

    Ron, we’ve spoken on the phone a number of times and yet I learned many things about you here I did not know such as that “they” hate you so much “they” go through the trouble of “manufacturing” an anti-Rijley blog site that spoofs itself as if it were written by you.

    Like you, I cut my uP teeth on the 6502 and 4040 chips, doing both the hardware and software designs because there were no alternatives back in the day. When I interview young graduates from “Computer *Science*” colleges now a days, I am shocked (shocked) to discover that many have no background in the hard sciences: physics, chemistry, you know, that kind of “stuff”. Also they are totally clueless about social manipulation. That makes them easy targets for the corporate mind squad. Few of them are even remotely capable of “independent” thought. What you see here is a sampling of the army of zombies parroting back the Big Brother mantras they have had embedded into their memory circuits over the years. Sadly, George Orwell was right. I think 1984 arrived 10 years before its self-proclaimed date. Many here were born after that date and have no idea what I’m talking about.

    Oh well. Never mind. Come on sheeple, let us find the “new” way forward. The cliff is that a way. Stay the course. ;-)

  20. “I just happen to think that patents are granted by the republic to serve the republic’s ends, not as a matter of the moral rights of the inventors, and that the current system is harming, rather then helping, the republic.”

    What you think is different than what we have. For most countries patent grants are purely a public policy issue. But America’s constitution explicitly defines a property right and both law and precedent places a very high value on property rights. That is the difference.

    The current system has served the public very well, creating the most robust economy in history. What the current system does not do is serve the interest of those who try to convert others intellectual property to their own use.

    What I find really funny is how big business patent pirates have successfully manipulated the open source crowd into carrying their water. That would be hilarious if not for the fact that their collective agenda would destroy the underpinnings of our economy. Members of the Coalition for Patent Fairness aka. Coalition for Patent Piracy:) are using the software community to create barriers to ensure that no one can challenge their current dominate market positions. That will ensure that no one can displace them with a great invention. They are trying to both legislate and to change law via the Supreme Court to facilitate their taking of others’ property.

    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  21. Small Guy asks
    ‘What is a “trivial algorithm” ?’

    One good example is Amazon’s One-click patent. That patent claimed a very small, incremental improvement over the widely practiced prior art. (Not to mention that B&N identified some good prior art during the lawsuit. Amazon dropped the suit after the Fed Cir pointed out the strength of that prior art.)

    I have also seen software patents that claimed a specific use of a common programming technique. Knowing the common technique, writing software for the claimed use is trivial.

    And, of course, the obviousness determination must consider what would have been obvious to one skilled in the art at the time of invention. I am a software packrat and have based invalidity opinions of software patents by using copies of my old software and even archived newsgroup postings.

    If an algorithm/software routine is truly trivial, it should be easy to show that it is invalid, using what was known before its invention. Unfortunately, I have seen many complain about software patents based on media reports and not on what the patent claims. Rarely does the media portray patent claims properly.

  22. Tom Kulaga wrote:
    “I consider trivial algorithms as being obvious to one skilled in the art”

    What is a “trivial algorithm” ?

    Obvious to everyone skilled in the art AFTER somebody invented it ?

    Is Diffie-Hellman public key cryptography “trivial” ?
    Is RSA algorithm “trivial” ?
    Many ant-swpatent folks claim they are…

  23. Through this and other discourse regarding software patents, I am beginning to think that everyone is right!

    At one end of the spectrum of software patents there are inventions that can be implemented either through hardware, firmware, or software. In such a patent the invention performs some physical action, such as control of a boiler, through a series of program steps. The pro-software patent crowd often cite this as an example of a good software patent.

    In the middle are software patents such as the software that adds watermarking (In re Nuijten). For arguments sake I assume that the patent application claims a process, implemented with software, for a new and unique watermarking process. The claims are narrow and cover a specific method of watermarking.

    At the other end of the spectrum is the software patent where someone broadly claims a basic algorithm, for example, watermarking a digital file where any type of watermarking is claimed, not just a specific algorithm. This type of software patent seems to prevent anyone from practicing/programming a basic feature, namely, watermarking a file. This type of software patent would/should have been rejected by the PTO if only the examiners knew of the prior art or questioned enablement or etc. Many of the anti-software patent crowd complain about this type of software patent.

    Everyone is right, but not everyone is talking about the same thing. Someone who invents something that meets the patentability requirements should get a patent, regardless of the preferred embodiment using software to accomplish what could be done with hardware. Likewise, someone who gets a patent for a process/software that is not new or is obvious, should never have gotten the patent in the first place. (I consider trivial algorithms as being obvious to one skilled in the art.)

    As for the middle ground, anyone who wants to use a specific, patented process, such as the one in In re Nuijten, is not disadvantaged because there are alternatives available. If the software solves a problem and meets the patentability requirements, it should be patentable the same as any mechanical/non-software invention.

  24. “If you want to claim that you are an inventor then you must subject yourself to the peer review system which we call a patent. No patent equals no standing as an inventor.”

    I disagree. I don’t need the Patent office to validate my status. My “inventions” in developing a numerical tool were peer reviewed and published in journals like SIAM Journal of Numerical Analysis, Transactions on Mathematical Software and Numerishe Mathematik. My inventions are in regular use around the world helping advance science and technology.

    I have no problem with property rights. I am in favor of property rights. In fact I believe that a well functioning system of property rights is at the core of the reasons why the western world is prosperous while most of the rest of the world suffers.

    I just happen to think that patents are granted by the republic to serve the republic’s ends, not as a matter of the moral rights of the inventors, and that the current system is harming, rather then helping, the republic.

  25. “Mr. Riley in his lashing out at programmers demonstrates that he knows nothing about software or the culture of programming.”

    You need to understand that the software cult reminds me of the pigs in Animal Farm. I cannot tell the difference between you and patent pirating companies like Microsoft (just do a Lexis-Nexis search to see the reason for my opinion on MS). From an inventors’ perspective it does not matter if the thief of our constitutionally mandated intellectual property rights is a transnational corporation or a bunch of rift raft who are demanding a handout, even worse flat out stealing others property.

    Just because those of you who want to profit from others inventions get together and reinforce each other does not make your actions right. From my perspective the big companies who steal are the equivalent of the mob and the software crowd is comparable to the lower level criminals who run numbers rackets, chop shops, and B&E rings.

    Let me put this a different way, how would you feel if I sent a representative to the homeless people and handed out tents and transportation to your property so that those people could squat in your yard? How would you like to have your property socialized?

    Revisiting the entitlement mentality issue. Dr. Doyle (Eolas) was generous in allowing open source to use his invention, and more recently Blackboard offered open source the use of their inventions. In both cases a bunch of ungrateful ingrates had the gall to take these gifts for granted and then demand more. As a result of this we are now telling inventors to not make any further gifts to the software community. Why should they give any concessions to those who demand more and more? I understand the culture, and it sickens me. If you want respect you must conduct yourself accordingly. I see nothing to respect in your culture.

    Now lets address the issue of programming and what I know about it.

    Actually I started programming in seventh grade in the early nineteen-sixties on a GE timeshare system at what was then GMI and today is Kettering. The first language I learned was Algol. A year or two later I learned Fortran. I was at the leading edge of applying microcomputers in industrial environments. Fairly early in the 6800-6500 computing days I designed systems using multiple CPU’s which shared memory map segments on alternate phases of the clock. In other words multi-core computing with no wait states! This was desirable because of problems with interrupt latency on real time systems.

    In those days there were mainframe programmers who mostly stuck their noses up and refused to touch a microprocessor based system. So while I was an EE coming at the issues from the hardware side of things the reality was if you designed a microcomputer system you had to write your own code.

    I have worked in scores of computer languages from raw binary, then assembler to high level. I probably worked with hundreds of dialects. And I mastered programmable logic controllers (used in automation), CNC and much more.

    So I do understand both hardware and software, probably better then most people. Today the great majority of programmers are woefully ignorant of hardware, and because of this they are not equipped to understand the issues.

    Read my lips, hardware and software solutions are often interchangeable. Inventions can be implemented with either approach. There is no rational reason that a hardware solution should be patentable while a software solution was not patentable. It would be economic suicide for America to give away all of the software related inventions so that a few very loud louts who claim that they are inventors while there is no proof that they ever invented anything. If you want to claim that you are an inventor then you must subject yourself to the peer review system which we call a patent. No patent equals no standing as an inventor.

    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  26. Mr. Riley in his lashing out at programmers demonstrates that he knows nothing about software or the culture of programming. He refers to the benefits from disclosure through patents. There is no demonstrable benefit. I challenge Mr. Riley, who has a whole organization dedicated to that particular fantasy, to show us someone who searches patent files looking for software solutions (as distinct from looking through those same files merely for problems to be designed around).

    Dan Bricklin made one of the most significant software advances of the last thirty years and yet all he had to do was demonstrate the function of his program (visicalc) and any competent programmer would know how to replicate the functionality.

  27. Ronald Riley:

    The purpose of patents is to progress the useful arts and sciences BY rewarding an inventor. The reward, the patent monopoly, is a means to an end, not a natural right in and of itself. The ends (that is- the utility to society) is to advance the useful arts and sciences. If the ends are not achieved by the means, the means are not remitted. Software developers assert the ends are not served by the means. They’re right.

    None of what I wrote was drivel, as is known to anyone who read my posts, irrespective of whether they agree with me or not. You only undermine your own credibility by attacking me with ad-hominem arguments and insults.

    I suspect that Dennis and I are on opposite sides of this issue, nevertheless, he is big enough to welcome me into his “house” and I am respectful when I am here. You might think about raising your level of rhetoric to what you see other’s achieving.

    You might also think to read the Constitution.

  28. “That’s not the purpose of patents.”

    “Remember, there’s a purpose to patents.”

    Clearly the author does not understand the purpose of patents. The purpose is to offer an incentive to an inventor to put the time, work, and money into fully disclosing the invention for the purpose of advancing the arts. The cost of a patent, both labor and to file for the patent can easily top $100,000 and may even represent millions of dollars.

    Software hacks do nothing advance the collective arts. Rather they code for their own profit and rationalize that other’s creations should be socialized for their selfish interests.

    What is really ironic is that the software cult shares the same goals as the corporate patent pirates and that both have an entitlement mentality.

    One last point, I notice that the author of this drivel is either too embarrassed of their outlandish position or simply lacks the moral convictions to show their real name.

    ====

    InventorEd is an approved nonprofit with over 500 web pages which exceed 3000 printed pages. It delivers web content to inventors in nearly 80 countries. InventorEd helps aspiring inventors grow to become entrepreneurs. In addition to helping inventors learn the business InventorEd is the leader in exposing and reigning in invention promotion fraud. Inventors typically lose between $10,000 and $50,000 to this $500 million annual and growing industry.

    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  29. The leaders of the anti-software patent movement frequently make their living by supplying services, authoring books, etc. Many claim their work is inventive but this is questionable and in the absence of having their work judged via the patent process they simply cannot make a credible case that they have done anything more than copy other’s inventions by coding a solution in a marginally different way. Even if they are inventing they are not teaching others the invention and therefore have chosen to keep their work essentially secret, much as guilds used to jealously guard the secrets of their trade to exclude others from practicing the inventions. In many ways they are treating their knowledge as a trade secret.

    As long as there has been software, engineers have been making tradeoffs between implementing an invention in hardware or software or a combination of the two. As electronics have shrunk and processors have become more powerful an ever greater number of inventions are best implemented via software.

    Denying inventors protection via patents is sure to lead to the same problems which society had when guilds kept knowledge secret.

    One of the beauties of software based invention is that it has low capital requirements. Anyone who is willing to work hard and has a great invention can prosper. A software patent can be a great equalizer allowing a lone inventor to challenge a big vested interest and to win epic battles.

    ====

    The Professional Inventors Alliance USA was created more than a decade ago to protect American invention and encourage innovation. American inventors saw a need to track congressional legislation and federal policy that impacts independent inventors, small and medium-sized businesses and colleges and universities. The Alliance is the premiere organization in the nation, providing independent inventors a united voice in order to improve public policy.

    The Alliance provides legislative counsel, congressional updates and strategy development to its members through a number of vehicles. Additionally, through its speaker’s bureau, Alliance members have an opportunity to provide expert opinion to many of the nation’s top-tier business, technology and mainstream media organizations. Over the years its members have testified before Congress, offered counsel to key Senate and House committee members, and successfully pushed legislation to protect America’s independent inventors.

    Since its inception, the Alliance has grown into one of the most vocal advocates for America’s patent system.

    Examples of areas of our expertise include David Vs. Goliath patent litigation, patent reform, and we have a unique view of patent pirating companies who are associated with the “Coalition for Patent Fairness”.

    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  30. “Writing software is surely a creative endeavor, but so are writing novels, composing music, and inventing cute little advertising slogans, but none of these result in something patentable.”

    Hey, file a patent on the light signals emanating from the pages of your novel poetry book right now. If Phillips succeeds, you’ll have soon have a groundbreaking patent!

    Of course, if you’re willing to go that far, surely you’d be willing to wager a mere $100 that Phillips will succeed.

  31. SF
    Re: statutory subject matter:

    I understand what you’re saying. The uber-reason that they should not be considered as patentable is that they do not promote innovation and advancement in the useful arts and sciences, as specified in the US Constitution. The very reasons they do not have been laid out my myself and others both here today, previously in this forum and on the web generally. Joe Smith (above) posted some reasons. What I hear back is, yes but that’s how things are done in this other area of human endeavor, so why are yo special. I do not need to show why I am special, I only need to show that they impede progress, and I believe I have for reasons cited. At 2:08 I posted a reply which you would have missed before posting your own. It takes the case of an inarguably creative software invention. Your argument seems to be the inventor “deserves” to be issued a patent. I am not concerned with subjective impressions of who deserves what; my argument is that all such patents will impede progress and the more patents, the more progress is impeded and this is so because of the highly dynamic and interdependent nature of software. Those words can be used to describe virtually anything, so the people in this forum have attempted through example to elaborate on exactly what these words mean beyond however they may apply to other subject matter.

    SO the real reason is that it impedes progress to patent software. As proof, I offer the existence of the internet and the booming economy and mass creation of jobs services and abilities all of which generate economic, and even political, activity which would otherwise not exist. This was brought into existence without the use of patents. That is called an existence proof. It is the strongest proof we humans have; a thing or state of affairs exists, so there you have it.

    But some people want to change all that. Where is their proof that things will be even better? They have none. They have a theory. They have a philosophical bias, I call it a obsession, that if a little IP is good, more IP is better. It is the kind of classic unbalanced thinking that excites a certain kind of mind that wants to see in all problems the same solution. Those kinds of people wash out of programming. Maybe some of them become lawyers; I don’t know. I am pretty sure we have some of them in the Whitehouse now. That’s costing me money, too.

    As for the details of your proposal, which I do NOT admit should be considered since it is rendered moot by the fact that software patents impede progress, they are nevertheless unworkable.

    Your hypothetical solution- better patenting down at the PTO- is fantastically unworkable. Why? Because software is split into millions of microworlds each of which has its area of common knowledge- things that ought not to be patentable because they are either well known, or obvious or nearly obvious. For example, the nice drawing graphing of graphs is its own microworld. How do you get a graph to look pretty on screen? Now, I could easily pass off algos in that world as “novel” to the USPTO b/c there is no patent examiner who is as immersed in that world as I am. And so on with a million other microworlds about which I know variously a lot something very little or nothing.

    There are more problems with “fixing” the USPTO with respect to software, keeping in mind I deny any such fix is in the first place deserving.

    One problem is- prior art is a fantastically poor sieve to keep non-novel ideas out. In software engineering, it is not has someone literally done this very thing before- it’s would a reasonable person skilled in the art of THAT microworld have thought of it in due time? The answer is going to be yes. It’s in the nature of scientific progress that everything is a small leap from everything else. Kuhn’s revolutions are few and far between, (and those revolutions are exactly what civilization is built on and the last thing we want to monopolize). I will quote from again John Carmack of id software again: (2005)

    “… Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement. Why should society reward that? … The programmer that filed the patent didn’t work any harder because a patent might be available, solving the problem was his job and he had to do it anyway. … Yes, it is a legal tool that may help you against your competitors, but I’ll have no part of it. It’s basically mugging someone.”

    You cannot populate the USPTO with enough developers with enough experience in enough microworlds to distinguish what might be new from what is new-to-you or new to your field. Whatever you say is novel, I assure you I there exists a programmer somewhere in some field who did something astonishingly similar before. Of course, getting a patent is a “beat ya to the USPTO” game, but that only belies the problem-

    A hypothetical- imagine a highly dynamic field with many millions of interdependent “patentable objects” which are created by the thousands everyday and about which all could agree that patents truly DO impede progress just as I and others have asserted about software. Now either you deny the even the possible existence of such a field, or it is substantially different from software. It is clear to me, though you disagree, that such a thing could exist. What we are saying is software is such a thing. You are saying it is not such a thing. Why is that? What degree of interdependence between easily made objects and level of dynamism in terms of creation needs to be met before you will say “hands off” this? It seems to me the burden of proof is now on you. It’s you who lack clear boundaries between patentable and non-patentable; in fact, you some lawyers want everything to be patentable with the exception of their own methods.

    To anonymous who claimed my analogy was off because software uses a computer. That is not the case with business methods and I do compare what a lawyer does to a way of doing business. But you missed my point. The point was to have you taste, if you’re a lawyer, what sort of burden is being imposed on software developers. I wanted you to feel that feeling of – you would like to do productive work, you would like to engage in your profession but owing to patents, you spent your time doing other things and in fact, patents lessened your effectiveness to your client over time. That was the point.

    For Dennis, low barrier to entry competitive environments compel the players to “share the wealth” whether they want to or not. The only cure for the low barrier competition blues is efficiency efficiency efficiency. And that is what this is really all about. MS and all the rest really have not much in the way of a competitive advantage sans patents- and they know it. A dozen good programmers can dominate any given area or software through the goodness of their product. The internet leveled the traditional competitive advantage of distribution channels and even advertising might, at least for software. The one thing MS has to cling to is the threat of patent lawsuits. There they have an advantage because they patent everything that’s not nailed down (especially things other people just don’t care to patent link to bluej.org )
    and of course who can afford to litigate against MS?

    So it’s not about us sharing the spoils of our labor; anyone who labors thusly can simply pull a seat up to the table and we’re constrined to make them a place. It’s about MS using its financial giganticism to destroy competition and market value through patents. That’s not the purpose of patents.

    Remember, there’s a purpose to patents.

  32. “This leaves me with the feeling that most software developers and new businesses realize that they may be infringing someone’s patent, but simply ignore that reality and move forward.”

    One venture capitalist has expressed it in fatalistic terms saying that in software you cannot tie your shoes without infringing someone’s patent.

    The problem is that software patents are so ambiguous and ubiquituous that the transaction costs of searching for patents and negotiating licences is prohibitive and is particularly prohibitive for small businesses and start-ups.

    In practise, allowing software patents does not, on balance, promote progress and so is unconstitutional. There’s the bottom line and it is just a matter of time before someone takes that issue to SCOTUS.

  33. This subject (patenting software) always provokes more heat than light.

    It seems pretty clear that the software industry, in the sense of those who write software for general purpose computers, is mostly opposed to patents. This is OK as long as you accept that all your new ideas will be stolen by Microsoft if you can’t get patent protection. Why you would want that I don’t know, but if that doesn’t bother you, then who am I as a patent agent to stand in your way?

    OTOH, in many places software has replaced hardware, or is an equal alternative. For example, I am working on a case right now in which the novelty lies in controlling a known operating circuit to do something different. This could be done by using a different control circuit to control the operating circuit, or by using a different set of stored instructions in the same control circuit. The latter has become the easier way these days, but either way the operating circuit can receive the same control signal, and I can easily write claims that cover both scenarios at the same time, without even mentioning computers or software in the claims!

    Even if you think that software for microcontrollers should be patentable, while software for general purpose computers (PCs, Macs, rusty mainframes, etc.) should not be, this is not an easy thing to acheive. A fair legal test that comes near to that is a hard thing to write. In the US, with certain restrictions on how you claim it, you can patent either type of thing. Personally, I think that is OK, although I think patenting business methods per se is an abomination, and yes, I admit that I have written pure business method claims. Even then, I think that a computerised business method should be patentable subject matter, only provided the computer isn’t just thrown in to disguise a pure business method. Again, that’s a hard dividing line to legislate.

  34. What is software really besides a bunch of instructions to flip switches?

    If I invent a new kind of boiler with a bunch of dials and switches and get a patent for it, why should anyone deserve a patent for a method of turning the dials and flipping the switches in a specific way? Are not all the possible ways of operating my boiler obvious in view of its design?

    Computers may seem like complicated machines, but they’re fundamentally simple. Their usefulness and versatility comes from the vast amount of (largely repetitively arranged) switches, and the ever increasing speed at which the switches can be toggled. So, mechanical analogy seems to be appropriate.

    Put my boiler in a big apartment building and come up with a method of turning the dials and flipping the switches to heat the suites. Then, assign different meanings to suite 103 being hot, suite 1606 being cold, suite 432 being warm, etc. Besides scale, how is this different from software?

    Writing software is surely a creative endeavor, but so are writing novels, composing music, and inventing cute little advertising slogans, but none of these result in something patentable.

    That said, there’s no denying that software is exceedingly useful. Perhaps software deserves its own form of protection, one that’s in better harmony with reality.

  35. “Finally, is anyone going to articulate why, with respect to statutory subject matter, software patents are different from ordinary devices like shovels? ”

    There is no such patent class/sub-class as “software” per ser.

    There are many different fields and software plays an increasingly important role in many of those fields.

    For exmpale, some of the recent patents in “shovels” class/sub-class might read like this:
    “A computer-controlled apparatus for shoveling a driveway”

  36. “After all, shovel patents stifle shovel innovation, and there’s no evidence that shovel patents promote the useful arts.” Actually, shovel patents ignite innovation in the shovel industry. Design arounds are encouraged by the patent system because they force the relevant industry to create new solutions. This is equally applicable to software.

  37. Software-V: You make a good point — that software patents potentially inhibit innovation because companies will be too afraid enter the market because of the high likelihood of infringing someone else’s patent.

    However, you also make the comment that engineers and start-up business leaders don’t read patents.

    This leaves me with the feeling that most software developers and new businesses realize that they may be infringing someone’s patent, but simply ignore that reality and move forward. For the most part, those new businesses can rest on the usuall reality that they will not be sued unless they are successful. And, at that point, they may be forced to share the wealth.

  38. softwarevisualization:

    Statutory subject matter relates to whether classes of inventions (software, shovels, etc.) should be patentable. But even if those classes are patentable subject matter, individual inventions in those classes still must be both new and not obvious in view of the prior art. Under US law, obviousness is viewed from the level of a hypothetical person having ordinary skill in the art.

    You lamented, “If I and 50 thousand other people spontaneously ‘invent’ the same thing when we encounter similar problems, where is the utility in the patent?” In this, you are discussing obviousness–not statutory subject matter. If you and 50 thousand others come up with the same software solution, that is strong evidence that the solution is unpatentable because it’s obvious to one of ordinary skill. But what if only one person come up with a significant new software solution to a very difficult problem? With obviousness not an issue, would you still argue that the software solution should not be statutory subject matter?

    As for my particular ox, I have worked both as a software developer and as a patent practitioner. I have no problem with new and non-obvious business method patents or software patents as statutory subject matter. In both cases, the level of ordinary skill is relatively high, which means that many ideas would be obvious. However, because the USPTO lacks sufficient resources, some potentially obviousness software solutions may have been erroneously patented, but that’s an entirely different issue from statutory subject matter.

    Finally, is anyone going to articulate why, with respect to statutory subject matter, software patents are different from ordinary devices like shovels? After all, shovel patents stifle shovel innovation, and there’s no evidence that shovel patents promote the useful arts.

  39. “What would you say if I patented a way of presenting to a jury an argument? And researching a case using the internet.” Foolish analogy to software patents. Software is carried out by a computer. You are referring to human mental steps, not software. And by the way, let us stop equating business methods to software. Software is pervasive, and yes, it can perform a business method (e.g., State Street) just as much as it can be implemented to control a surgical instrument. So: software can implement a business method, but a business method is NOT software.

  40. SF said “For some reason, software folks are disproportionately vocal about the “harm” that software patents create”

    What do you mean by disproportionate? What does it tell you when most of the people working in an area are opposed to patents and say it is bad for their industry and the people arguing it is good for the industry are the lawyers who are lining their own pockets. Do you even know who Donald Knuth is?

    The problems with software patents have been reviewed endlessly but here goes again:
    1. software is a large and diverse area of endeavor
    2. software is cumulative;
    3. software is rapidly changing as hardware advances expand the opportunity space;
    4. developing software ideas has low barriers to entry
    5. the historical practices in software are poorly documented and even hardware is routinely discarded so proving prior art is difficult.
    6. software patents tend to be broad and ambiguous which makes it effectively impossible to comply with the law (consider the notorious “jpeg” patent where the holder of the patent “discovered” years after that fact that it applied to the jpeg algorithm.)
    7. a modern software package can involve thousands of innovations with the result that software patents allow the holder of the patent on just one of those innovations to capture all or a substantial share of the value of the whole.

    The consequence of all of this is:
    1. The patent system is not needed to encourage development – there is ample encouragement for development in the rich software opportunity space and lots of people with the skills to exploit the opportunity.
    2. The patent system does not encourage the spread of ideas since software patents are drawn in a way which makes them effectively useless as a way of recording and communicating software developments.
    3. I venture to say that there is no causal connection between most software patents and allegedly infringing products – that is that the alleged infringer independently developed the technology – perhaps the most famous example of this is RIM, which NTP admits developed the technology independently – something that Ronald Riley never seems to mention in his frequent criticism of RIM.

  41. Let’s say for arguments sake their exists a software patent so novel and useful in its conception that no one argues about those aspects of it. Let’s take for example the case of client server communication way back when. What happens if we permit a patent? The person obtains lots of licensing revenue from large companies who can afford his monopoly price. What doesn’t happen? All the individual creatives like Steve Jobs, all the academics who want to start their businesses, all the myriad of people whose businesses will come to employ others, all the avalanche of excitement and tinkering and improvement etc etc go away. Why? Because those individuals aren’t going to sit around and read patents and try to decide if the next line of code they wrote infringes and wait to get sued by lawyers. There’s far too many individual algorithms involved for that to be even logistically within their grasp. Unfortunately, these are the very people who MAKE an industry. But they’re going to find another field to be creative in. They never needed patents to motivate them to take a shot at creating something, starting a company and making their fortunes, but patents will drive them off. SO the internet remains the province of the few well heeled companies….

    How is this good for society?

  42. softwarevisualization

    Here are two more examples for your collection of quotes

    Dan Bricklin (inventor of the spreadsheet)

    “… allowing the patenting and enforcement of patents of pure software this late in the life of the art is an unusual hardship for a thriving industry that is crucial to the world’s economy.” 1995

    OR

    “Part of the problem is that the US Patent Office has been lax in granting patents, said Mitchell Kapor, a founder of Lotus Development and a prominent backer of the Mozilla browser. “There have been tens of thousands of bad software patents issued which never would have been issued if the Patent Office had actually been following its own rules,” he said.”

  43. “New patent reform legislation will likely be introduced this week.” Probably not!

    There is a huge behind the scenes war raging between has-been tech companies who drove the creation of the Coalition for Patent Piracy aka. Coalition for Patent Fairness:) who want to eviscerate the patent system and the older companies who want strong patents for themselves but wish to tilt the balance of power more in their favor over the wording of the legislation. Both groups take liberties with others intellectual property and they are systematically excluding academia, independent inventors, leading edge industries, bio and Pharma from those discussions. This has been their MO for the last decade and it is the reason that no meaningful patent reform has been passed. One would think that they would have learned from past mistakes.

    Arrogance is what gets members of the Coalition for Patent Piracy into epic patent battles, arrogance lack of ethics is what causes them to lose those battles, and arrogance is why they have learned nothing from their past mistakes.

    Most of the Coalition members have the same ailment as the auto companies. Granted it is not as advanced but many of our biggest tech companies have stagnated to the point that they only see patents as a defensive tool rather than an opportunity. They look down their noses when dealing with independent inventors and the small companies those inventors found.

    Other older and wiser companies see acquisitions of those inventors IP or companies as a transfusion which keeps them youthful and those companies prosper as a result. Johnson & Johnson is an example of a company who takes this approach.

    Needless to say informed inventors reach out to those companies who deal reputably and shun those companies who act like school yard bullies. Is it any wonder that those companies who lie, cheat, and steal as the auto companies have done will likely suffer the same fate over the long run?

    ====

    The Professional Inventors Alliance USA was created more than a decade ago to protect American invention and encourage innovation. American inventors saw a need to track congressional legislation and federal policy that impacts independent inventors, small and medium-sized businesses and colleges and universities. The Alliance is the premiere organization in the nation, providing independent inventors a united voice in order to improve public policy.

    The Alliance provides legislative counsel, congressional updates and strategy development to its members through a number of vehicles. Additionally, through its speaker’s bureau, Alliance members have an opportunity to provide expert opinion to many of the nation’s top-tier business, technology and mainstream media organizations. Over the years its members have testified before Congress, offered counsel to key Senate and House committee members, and successfully pushed legislation to protect America’s independent inventors.

    Since its inception, the Alliance has grown into one of the most vocal advocates for America’s patent system.

    Examples of areas of our expertise include David Vs. Goliath patent litigation, patent reform, and we have a unique view of patent pirating companies who are associated with the “Coalition for Patent Fairness”.
    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  44. “New patent reform legislation will likely be introduced this week.” Probably not!

    There is a huge behind the scenes war raging between has-been tech companies who drove the creation of the Coalition for Patent Piracy aka. Coalition for Patent Fairness:) who want to eviscerate the patent system and the older companies who want strong patents for themselves but wish to tilt the balance of power more in their favor over the wording of the legislation. Both groups take liberties with others intellectual property and they are systematically excluding academia, independent inventors, leading edge industries, bio and Pharma from those discussions. This has been their MO for the last decade and it is the reason that no meaningful patent reform has been passed. One would think that they would have learned from past mistakes.

    Arrogance is what gets members of the Coalition for Patent Piracy into epic patent battles, arrogance lack of ethics is what causes them to lose those battles, and arrogance is why they have learned nothing from their past mistakes.

    Most of the Coalition members have the same ailment as the auto companies. Granted it is not as advanced but many of our biggest tech companies have stagnated to the point that they only see patents as a defensive tool rather than an opportunity. They look down their noses when dealing with independent inventors and the small companies those inventors found.

    Other older and wiser companies see acquisitions of those inventors IP or companies as a transfusion which keeps them youthful and those companies prosper as a result. Johnson & Johnson is an example of a company who takes this approach.

    Needless to say informed inventors reach out to those companies who deal reputably and shun those companies who act like school yard bullies. Is it any wonder that those companies who lie, cheat, and steal as the auto companies have done will likely suffer the same fate over the long run?

    ====

    The Professional Inventors Alliance USA was created more than a decade ago to protect American invention and encourage innovation. American inventors saw a need to track congressional legislation and federal policy that impacts independent inventors, small and medium-sized businesses and colleges and universities. The Alliance is the premiere organization in the nation, providing independent inventors a united voice in order to improve public policy.

    The Alliance provides legislative counsel, congressional updates and strategy development to its members through a number of vehicles. Additionally, through its speaker’s bureau, Alliance members have an opportunity to provide expert opinion to many of the nation’s top-tier business, technology and mainstream media organizations. Over the years its members have testified before Congress, offered counsel to key Senate and House committee members, and successfully pushed legislation to protect America’s independent inventors.

    Since its inception, the Alliance has grown into one of the most vocal advocates for America’s patent system.

    Examples of areas of our expertise include David Vs. Goliath patent litigation, patent reform, and we have a unique view of patent pirating companies who are associated with the “Coalition for Patent Fairness”.

    Ronald J. Riley,

    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  45. “The idea that any software developer sits around and reads patents in order to steal software ideas is ludacris on so many levels; it just identifies you as someone who doesn’t know anything about market realities, the readability of software patents, the value of time etc. etc. Malcom, no one reads software patents but lawyers. No one cares about what’s in them. They don’t contain novel ideas. That’s the point.”

    This statement is ridiculous.

    US 4405829, US 5838906, US 4744028 , US5579430 etc etc. etc.

    Needless to say, 99 % of all patents (software and non-software) are not worth the paper they are written on.

  46. SF,
    What would you say if I patented a way of presenting to a jury an argument? And researching a case using the internet. And interviewing witnesses. Why is this not patentable? It’s a method of conducting business. Just imagine a world where this is permitted. What is your state? You’re afraid to even look at trail transcripts. You spend all your time reviewing previous trials to be sure you’re not infringing. A few companies get more and more patents and everyone else is left unmarketable. Get it? IS this helping the legal profession? Now I will take your voice;

    Why is it that lawyers are up in arms about legal patents? Perhaps they could explain why their business methods should not be patentable subject matter like all other Is it because their ox is getting gored?

    You’re not a software developer. You don’t know how many tens of thousands of algorithms I use every day. I don’t even know, but if patents become the norm, some lawyer will tell me all about it. It’s as Knuth said- it would bring software development to a halt. Why does he think that? Because it’s true. It’s OBVIOUSLY TRUE to software developers. Where is the social utility in that? I get some small group of people may ge rich, but that’s NOT what the US patent system was set for. It was set up to persuade people who would otherwise secret their knowledge from the world to instead share it. If I and 50 thousand other people spontaneously “invent” the same thing when we encounter similar problems, where is the utility in the patent? Nowhere. Where is the damage? Everywhere. Why should we put up with a system that inflicts that on society? We shouldn’t We aren’t going to.

    Furthermore you have NO evidence and a MOUNTAIN of evidence to the contrary that software patents promote the useful arts, which the Constitution clearly requires.

  47. Yeah Malcom I am glad to see you admitted that algorithms are being patented, because that’s EXACTLY what software developers are up in arms about.

    I don’t *think* I am really such a scofflaw as you suggest; if Donald Knuth is complaining HE can’t write software in the current climate without violating someone’s patents, then I am not really worried that it’s owing to my lax moral character or lack of technical prowess. The lax moral character label might better be pinned on those small group of lawyers lobbyists and corporations who seek to extend patent protection to society’s detriment as long as it means another round of Gulf Jet V’s, caviar, etc. etc.

    Attack Knuth too, please. Rebut his arguments. He’s obviously confused about things as I am and probably also of the same low moral character.

    The idea that any software developer sits around and reads patents in order to steal software ideas is ludacris on so many levels; it just identifies you as someone who doesn’t know anything about market realities, the readability of software patents, the value of time etc. etc. Malcom, no one reads software patents but lawyers. No one cares about what’s in them. They don’t contain novel ideas. That’s the point.

    Here are some more scofflaws for you to rebut. OF course, you know more about software than any of these nobodies-

    Bruce Schneier and Niels Ferguson 2003

    “We don’t believe that patents serve the security community.”

    “In our opinion, the cost of the current patent system for the IT industry far outweighs the advantages.”

    John Carmack (id Software) 2005

    “In the majority of cases in software, patents [affect] independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement. Why should society reward that? … The programmer that filed the patent didn’t work any harder because a patent might be available, solving the problem was his job and he had to do it anyway. … Yes, it is a legal tool that may help you against your competitors, but I’ll have no part of it. It’s basically mugging someone.”

    Oracle Corporation 1994

    Submission to USPTO

    “Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments…”

    Prof. Hasso Plattner when Chair of SAP Board

    “…SAP would not need patents to protect its investments and is collecting them only as a defensive weapon to prepare for litigation in the U.S…”

    Pierre Haren, board director of ILOG 2001

    “…The American experience of software patents is a disaster. Before imitating them we should rather try to see if they won’t agree to change their system…”

    Robert Barr (Cisco Systems Intellectual Property Department) 2002

    “…The time and money we spend on patent filings, prosecution, and maintenance, litigation and licensing could be better spent on product development and research leading to more innovation…”

    Douglas Brotz (Adobe Systems) 1994

    “…I believe that software per se should not be allowed patent protection…”

    Jim Warren (Autodesk) 1994

    “…There is absolutely no evidence, whatsoever—not a single iota—that software patents have promoted or will promote progress…”

    Mitch Kapor 1994 (Founder of Lotus 123)

    I said a lot of things in my original post; please rebut statements I actually made, rather than citing activities I never engage in. Save the ad hominem trash for the kids.

    Thanks.

  48. For some reason, software folks are disproportionately vocal about the “harm” that software patents create.

    But software patents are just as “harmful” as other patents. Patents almost always benefit a small number of people. And, of course, they can be used to seriously harm others in the sense that patents can provide the power to prevent them from infringing the patent.

    Are the software folks anti-patent in general or are they just miffed that their ox is being gored? If they are not anti-patent, perhaps they could explain why a software program should not be patentable subject matter, while ordinary physical devices like shovels should be patentable subject matter.

  49. I (not a lawyer) am also interested in your case but it’s as you say, you don’t want to say anything in email or in an online forum that the other side can get a hold of. I *think* a lawyer can send you an email that establishes attorney/client privilege, or at least a lawyer once sent me an email that seemed to be doing that. Maybe someone on this forum will take an interest and help you.

    I am curious to know how big the company going after you is. We always hear that all the software patent atrocities never effect the little guy and that’s it’s about big business. Of course, I know better; it happens every day to small fish, but getting an idea of the scale of the market involved here might be enlightening to some of this blog’s readers.

  50. “Be productive and contribute something of value to society. That’s illegal here.”

    By “being productive” do you mean “read all valid US patents of interest disclosing some truly novel ideas and try to make a profit by incorporating somebody else’s ideas and algorithms into your products” ?

    That is not my definition of “being productive”
    I call it “stealing other people’s IP” or “making a buck on somebody’s back”
    Move to Europe then, the US creativity won’t suffer…

  51. “So where are all the people who so loudly crow about “protecting the individual inventor”? They’re not helping me.”

    What are the bogus patents you are referring to? Maybe some folks here can help you invalidate them.

  52. That’s why you take your software development out of the country. Sell into the EU and elsewhere. Ignore the American market and you can make a fine living. Over time, the American market will become the most expensive, least desirable, least innovative in the world. After a few more rounds of industry crying that they’re so bad comparatively because we don’t educate our kids / get enough tax breaks / need stronger IP laws and the bevy of other junk reasoning their lobbyists churn out, Congress will finally wake up and ban software patents. That’s the best case scenario. The worst case is, software development in the US just loses out to countries which permit software development.

    Move to Europe. Enjoy the life you were given. Be productive and contribute something of value to society. That’s illegal here.

  53. I’m an individual who rights software on my own & with a few other volunteer collaborators, so I guess I must fit the “individual inventor” mold. I’m currently deeply tangled in the legal system fighting somebody who wants to shut our effort down using bogus software patents.

    So where are all the people who so loudly crow about “protecting the individual inventor”? They’re not helping me. Their proposals wouldn’t help me; most of them would actually hurt. From my perspective, they seem to be more interested in helping themselves, within their little ecological niche in the current system.

    When I bring this up, I get three reactions (quotes are exact):

    *) “Well, your effort is too small” – Setting aside that thousands of people have used it and seem to like it, doesn’t that miss the point of somebody who’s trying to defend the _small_ inventor? Maybe “small inventor” is a code phrase for “naive person who has to pay large legal fees”, and nobody told me?

    *) “You’re (sic) technology isn’t interesting” – in software, there’s a pecking order, with the most attention given to system tools like operating systems, web servers, etc. Since the stuff in my case is a user-level hobby tool, it gets the “not interesting” tag. But it’s interesting to the people who use it, and like the windshield-wiper example earlier, the real point is whether the technology is useful to people.

    *) “The problem isn’t software patents, it’s [...] PTO not doing it’s job” – this argument is that the bogus patents in my case shouldn’t have been issued. ( I certainly agree with that) But then the argument always goes further, and says that one just has to use that to defeat the patent in court, and everything will be OK; “there’s therefore no need to change” the system. Again, only somebody who views legal fees as a good thing could possibly make this argument. As an individual who wrote some software in his spare time, and who now is spending a large amount of time and money defending it from a pathological attack, I am telling you that THIS SYSTEM IS BROKEN.

    One simply can’t justify the argument that software patents, as now handled, are “advancing” the useful arts. They cause way too much friction and cost compared to their value for the vast majority of software projects, and should people _really_ start to enforce them, the situation will be infinitely worse. At best, the quantitative research I’ve seen indicates that they’re “not harmful” to the software industry. Hardly a ringing endorsement!

    (I normally don’t post anonymously, but there might be something in here that opposing counsel can twist to mean something different; that’s another cost of the existing software patent system that should be counted against it)

  54. Moshe,
    I think Joe Smith had it right. If MS loses (cynical people like me think they want to lose to establish a precedent for trans-national patent enforcement), then all that development is going to go to whoever hasn’t been exposed to patented algorithms, which is an idiotic state of affairs, but oh well.

    As someone who worked in the industry as development and project lead on flagship product offerings for multi-billion transnationals, believe me when I say that individual creativity is seen within the industry as a destabilizer and creative programmers as a nuisance. As one executive put it to me- ” the first thing you do when you take over is find that one person that the company absolutely cannot live without and fire him”.

    Very little code actually calls for creativity unless you are are talking about code quality and maintainability in the form of analysis and design which can be described as a type of art and the people who can do it as artisans, but that kind of thing is not seen as worth paying for. The breakdown of labor within the industry goes like this- management has the ideas and direction, marketing decides the features, project managers get their walking papers and hire the keyboard monkeys. Trust me, creativity is not a sought after quality. There’s a reason that industry is constantly lobbying for more H1B visas and it’s not because there’s a talent shortage, it’s because an H1B is a form of indentured servant (to their employer’s ability to apply for a green card) who knows who he works for and has no market leverage to upset the ship.

    But here’s where your post really goes wrong-

    snip
    Also, a stronger patent system is good for individual small business owners who do not want their IP trampled on by rich corporations who say ‘so sue me’ when caught infringing a patent.
    snip

    one “reform” link to news.zdnet.com
    proposed by the “software” industry, (that is to say, the immediate small group of executives who control large software corporations and their lawyers), as represented in this instance by the BSA, would instantiate a system that “award(s) damages ‘based on the proportional value of patented invention(s) alone, not on the cumulative value of all features included on a large product, which, for a computer, can be thousands and thousands of features.’”

    So here will be the situation:

    MS will rip off small developers, blind. The small developers will then have to find a lawyer interested in litigating against MS AND, if they win, then litigating exactly what “proportional infringement” took place. That would involve, oh things like the testimony of domain experts hired by MS who will claim that the infringing feature only constituted .00000007 of the utility of ONE PART of the program which itself was only 1/50th of the overall program utility which, in turn, was only of interest to a tiny fraction of their buyers. You and your lawyer can then enjoy arguing with them over each and every calculation, statistic, study, sales figure, industry poll and anything else that MS comes up with. Yeah, that’s patent reform all right. That’s getting tough. I wish you and your lawyer happy trails.

    Small business IS the major growth engine and what small business needs is NOT software patents. The prosperity you cite was created in a non-patent environment- how can people forget this?- and software will devolve into a “big three” industry if patent thickets become a necessary prequisite for entry to market.

    Here’s Knuth, link to maa.org (for non-programmers) and here’s his letter to Commissioner of Patents and Trademarks from 2003, which I quote not just because Knuth is a true genius and pioneer and universally revered, but because he expresses it exactly right:
    link to lpf.ai.mit.edu

    He says:
    “I strongly believe that the recent trend in patenting algorithms is of benefit only to a very small number of attorneys and inventors, while it is seriously harmful to the vast majority of people who want to do useful things with computers.”

    “When I think of the computer programs I require daily to get my own work done, I cannot help but realize that none of them would exist today if software patents had been prevalent in the 1960s and 1970s. Changing the rules now will have the effect of freezing progress at essentially its current level.”

    “If software patents had been commonplace in 1980, I would not have been able to create TEX.”[15]

    and not just TEX but all internet protocols etc etc every little tiny bit of everything that you use every day. If patents had been permitted, then the internet would now be affordable to corporations only owing to the licensing costs and what’s worse, that state of affairs would make sense to everyone since the “internet thing” would seem advanced-to-the-point-of-magical to the average person who never had acces to it. That’s the world that the short sighted amongst us will, wittingly or otherwise, unleash upon us, and we’ll never know the difference.

    you said:
    In short, while many in BIG business support weakening the patent system (the BSA guys who fund so many of these law professors who write their cute little amicus briefs), I am not sure that weakening the patent system will benefit BUSINESS AS A WHOLE in the USA – of course the little guys don’t have the budgets for the lobbyists and for sponsoring research of law professors.

    Perhaps a quote from Gates will shed light on the real intent behind software patents-
    from: link to oreillynet.com

    “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today…The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors”.

    And so they do.

  55. Joe Smith,
    I think you have it backwards.
    I think a weaker patent system encourages outsorcing work to low-wage countries where creativity is emphasized less (for now, an economic system that rewards creativity rather than ‘me-too’ is a relative competitive advantage for the USA which has a less structured school system that puts a higher premium on creativity than the systems of many nations in Asia).

    With a weak patent system, you just copy and outsource to low-wage countries, for example, in Asia.

    Also, a stronger patent system is good for individual small business owners who do not want their IP trampled on by rich corporations who say ‘so sue me’ when caught infringing a patent. Look at the case of the intermittent winshield wipers – this small inventor had to ruin his life in order to get the big car manufacturers to pay up. (see link to bigpicture.typepad.com)

    The USA also has a relative advantage in the area of small business – small businesses is a MAJOR growth engine. Look at the startups over the last few decades and the prosperity created. Many VCs are averse to investing in a start-up without strong patent protection, because they are not stupid and they know how easy it is for the big-boys to copy the technology, using , for example, their deeper pockets and established marketing channels.

    In short, while many in BIG business support weakening the patent system (the BSA guys who fund so many of these law professors who write their cute little amicus briefs), I am not sure that weakening the patent system will benefit BUSINESS AS A WHOLE in the USA – of course the little guys don’t have the budgets for the lobbyists and for sponsoring research of law professors.

    Moshe

  56. Right and here’s another headline that would speed that along:

    “AT&T Wins: Microsoft announces transfer of all development work to India”

    That would focus a few minds in Congress.

    Or how about:

    “NTP loses final appeal: Why did RIM have to pay $612.5 Million?”

Comments are closed.