What’s Wrong with Software Patents?

by James Bessen and Michael J. Meurer

[This post is the third in a series of posts based on empirical research in a new book, Patent Failure, by James Bessen and Michael Meurer. Read Part I and Part II]

Patents on computer programs, financial processes and business methods have been controversial at least since the 1960s. Surveys regularly find that computer programmers are opposed to patents on software by a wide margin. In what other field is the class of inventors so opposed to patents?

Is there a problem?

Some people contend that there is nothing particularly wrong with patents on software, arguing that "patent thickets" are not preventing innovators from entering software markets. But the latest evidence [LINK] suggests that patent thickets do, in fact, inhibit startups in software. More important, patent thickets might not be the only or even the most important problem with software patents.

Indeed, our evidence suggests an important problem of another sort: software patents are four times more likely to be litigated than are chemical patents; business methods patents are twelve times more likely to be litigated; finance patents are 49 times more likely. Moreover, the evidence also suggests that these patents have lower values than chemical patents, so these patents are not being litigated more because they are more valuable.

Other people admit that there are problems with software patents, but they suggest that this is only temporary: once judges and patent examiners understand this technology better, once they have become familiar with the prior art, etc., then the uncertainty about these patents will abate and litigation rates will go down. But the evidence shows that after a decade of issuing software patents in large numbers (over 200,000), the probability that a newly-issued software patent will be litigated is continuing to rise.

So it does seem that patents on software and related technologies at least have a particular problem with litigiousness. And this problem is central to the poor performance of the patent system generally. In the previous post we highlighted how litigation costs have substantially outgrown the profits that public firms receive from patents outside of the pharmaceutical and chemical industries. In 1999, 38% of the cost of litigation among public firms arose from lawsuits involving software patents; preliminary data suggest that this share has increased since then. Litigation over software patents is clearly a major factor in the poor performance of the patent system. So in a very real way, the overall performance of the patent system cannot be fixed unless the particular problems of software patents are also fixed.

Why are there so many lawsuits over software patents?

A variety of evidence leads us to conclude that software patents are involved in relatively more litigation because they are more likely to have "fuzzy boundaries." Statistical evidence shows, for example, that software and business method patents are much more likely than other patents to have their claim construction appealed to the Federal Circuit. Part of this tendency arises because of the nature of the technology and part arises because of the way the courts have treated this technology.

Our reading of the case law convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable. When patent claims relate to actual devices or chemical structures, then their meanings can be interpreted by reference to those physical or chemical entities. However, when the words refer to abstract ideas, they are often subject to multiple interpretations and are therefore more ambiguous. For example, many people thought that "point of sale location" (in the famous E-Data patent) was computer industry jargon for that place in a retail store where transactions take place, formerly occupied by a cash register. When the Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place, although it is highly unlikely that this is what the inventor had contemplated 17 years earlier. Thus a broadly worded invention for a kiosk in a retail store was read to cover a broad swath of e-commerce. Not surprisingly, this patent generated quite a few lawsuits.

Patent doctrines that might serve to prevent such fuzzy claims have been undermined. For example, the enablement doctrine has historically been used to keep patents from claiming much more than what was actually invented. Unfortunately, as a result of Federal Circuit decisions on software patents during the 1990s, these patents no longer need to provide computer code, a flowchart, nor any detailed description of specific operation in order to be enabled.

Fixing the problem

A lot of people have very strong opinions about how patent policy should or should not change regarding software patents. We wish we had such clarity, but we do not. We are convinced that the current treatment of software patents creates significant problems and that these are getting worse. But the problem is complex and fixing it will likely involve multiple changes in law and institutions.

Certainly, KSR should help and so would a stronger indefiniteness requirement. Additionally, it might help to restore a substantial enablement requirement for software patents so that these patents are restricted to claiming more or less what was actually invented and disclosed.

Possibly, a subject matter test might help. We confess we do not have a rule that cleanly distinguishes inventions using software that should be patentable from abstract processes that should not be patentable. Some people argue that any attempt to proscribe subject matter will only increase uncertainty and encourage avoidance through clever claim drafting. But the evidence suggests that the subject matter tests used following Benson and Flook did not, in fact, encourage excessive litigation during the 1980s, even though there was some evasive claim drafting. Litigation rates for software patents then were about the same as those for all patents. On the other hand, we doubt that a subject matter test by itself would be sufficient to fix the problems of software patents.

61 thoughts on “What’s Wrong with Software Patents?

  1. …..and Allison, don’t go getting any ideas that ideas can be patented either. That’s yet another thing you can’t do.

  2. Allison,

    Let me pour you another cup – because you are a writer and that (copyright) is how you think about protecting the EXPRESSION of your ideas (as you know ideas cannot be copyrighted).

  3. I needed more caffeine than I thought. I was trying to join the conversation about patent infringement and wrote “copyright” instead. Must be because I am a writer and that is how I think about protecting my own ideas. That is also why I tend to sympathize with the inventors and feel that stronger patents would help them to minimize patent infringement and get better patent enforcement.

  4. Sorry, that last post should have said “copyright infringement”. Perhaps I should’ve waited until after a dose of caffeine to post this morning!

  5. I’m sorry, but doesn’t the statement that “software patents are four times more likely to be litigated” contradict the idea that the software inventors are mainly opposed to software patents? Copywright infringement is a huge issue for inventors so that their ideas aren’t be stolen and they can continue to make a living with their own thoughts and ideas.

  6. Software Patents are a blight upon our industry. The sooner we ban them the better. And since when did they become legal anyway!?!? I am old enough to remember when they weren’t.

    It’s been widely reported that Companies like Microsoft are filing patent applications at the rate of 3000 per year and that’s only one company!!! The gigacorps are in a patent arms race, the actual number of software patent claims being filed per year is probably in the realm of 10000, (just a guess). Nobody can manage an onslaught like that, I don’t blame the patent office for rubberstamping everything that comes it’s way and letting the courts duke it out. But the cost of that approach is enormous and ensures that the gigacorps have a financial lock on the software industry. Conflicting claims and lengthy lawsuits are assured and the sheer quantity indicates that the claims are mostly rubbish, you can’t possibly think up that many novel never thought of before things to do with software.

    New startups are squashed at will by stealth attacks such as what was done to RIM/Blackberry, they did all the work, created the device, developed the market etc. Then after becoming successful/profitable, out of the clear blue they get hit with a sledgehammer from the sky; some toad who never lifted a finger in his life who never made a device or built a network, just wrote a vague concept on a coffee table napkin and sent it in. And then he waited for his prey to get fat before he pounced. If he was so concerned about his patent rights why didn’t he show up on day one of the Blackberry’s release when the company was still small??? It was a cold predatory calculated shark attack. He got so much more $$$ by waiting. With Trademarks if you don’t assert your rights as soon as you become aware of infringement you lose them. But patents have no such constraints and perhaps they ought to.

    Somebody complained about programmers ignoring patents, you are darned right we do. Even if it were possible for one person to read all of them — it’s not…. if you did read them you would be liable for extra damages because you had knowledge that somebody else had staked a claim to a vague notion that might be a little bit similar to something you were working on. But if you don’t read the patents then you can show it was your original work/idea and perhaps even show that it is obvious to someone in the field. As far as people plagiarizing source code… that’s what *copyright* is for.

    The incomprehensibly huge profusion of software patents has created a massive field of landmines in which it is nearly impossible to create any program at all without being in violation of some alleged/contrived obscure patent or other. To cite one egregious example, how about Amazons patent on a mouse click??? If anybody has a right to patent a mouse click it would be the guy who invented the mouse (which was an upside down trackball). To be able to use the mouse for it’s intended function of clicking on activation regions to trigger a program defined action is not even close to being a legitimate patent. As to their claim that there was something somehow unique about the shopping cart program function thus triggered; even Bezos admits it was a weak claim, they are lucky it was settled out of court, shopping carts have been around for a long time before Amazon; but juries and judges are so ignorant of the technology involved that unfortunately it is possible to hoodwink them, and thus a number of really bad decisions have been made. For what it’s worth, Bezos now claims to be against software patents even though he benefited hugely from them.

    This litigious atmosphere and stealth attacks are going to have a major chilling effect on venture capital funding for new software development. Would you invest in a company where most of it’s value could be sucked out of it overnight and from an unpredictable unforeseeable attack?

    The total lack of sense when ignoring the criteria of non-obviousness is appalling. I mean come on, how can you possibly tell me with a straight face that interleaving video and audio data streams is somehow unique and novel?? It would only appear as such to one who is completely unskilled in the field, which unfortunately seems to be the type of people who are making all of these decisions, abetted by the greedy SOBs who have twisted and distorted the patent system beyond recognition.

    Lets go back to fundamentals shall we??? The original purpose of a Patent is a two way contract. The deal is that the inventor discloses how something was done, and in return they are granted a *temporary* monopoly to profit from that invention in whatever way they can. After the expiration of that temporary monopoly the technology reverts to the public domain. The real goal of the patent system was to wrest things away from the realm of trade secrets and bring it into the light of public benefit.

    And another goal was to protect the small independent inventors from being exploited by the gigacorps (see for instance the movie: Flash of Genius). The situation that we have today is that the gigcorps have perverted the patent system to effectively lock out the independent inventor. (litigation is too expensive and everything even marginally conceivable has already been submitted as a vague concept by sweatshop style patent factories with deep pockets).

    But in the realm of software patents there is no demonstrable benefit being accrued by the public. To begin with I have hardly ever seen a software patent that would meet a legitimate non-obviousness criteria by practitioners skilled in the field (there are a few but not many and certainly not 3000 per year not even close). The fact that the interpretation of this criteria has been distorted out of all recognition of original intent is unfortunate. However an even more fundamental and important consideration is the time span of software patents. When people where living in the early industrial age things moved at a much slower pace, 17 years to protect a mechanical invention which remained essentially unchanged for the next 50 years was probably an appropriate length of time. But in the software world things move much faster. A typical software product life cycle is about 3 to 5 years. After that it is usually considered obsolete. These long patent life-spans are wholly inappropriate to the technology and only serve to impede innovation.

    And furthermore, if the public is to benefit from the “software” invention, then were is the commented source code which documents how it works? With mechanical device patents you are expected to disclose detailed schematics and explanations sufficient to construct the device; but without the software source code accompanied by detailed explanations you have not truly disclosed anything. I fail to see how the public is benefiting from any of this. All that is happening is that something which continues to be a trade secret and may not even exist, is being granted a temporary monopoly status on the basis of a vague generic overly broad description, but at no time does that source code implementation ever make it into the domain of the public benefit, it in fact continues to be a trade secret even after the expiration of the patent. This is a total violation of the spirit and intent of the patent system. The public does not gain anything from the patenting of a concept and the patent system was intended to benefit the public.

    There is however one simple but painful solution, the only reason we are experiencing so much pain right now is because our industry is still so young. All we have to do is wait another 17 years before we try to write any new software. By then we will be a “mature” industry, all of these silly nonsense patents will have expired, and we can get back to work without worrying about random sledge hammers crushing us from the sky. Meanwhile I suggest that everybody unplug their computers and stop wasting their time writing code and starting software companies because somebody is just going to drop a hammer on you anyway when you least expect it. What happened to Blackberry and a lot of others is theft pure and simple but outrageously legal. The current Patent system is a major disincentive to do software development. Patents are inappropriate for something which has more in common with a book and would more reasonably be protected by copyright. Clay tablets anyone???

    P.S. I have not read your book yet (but it looks like it should be good), so you will have to excuse me if I have “infringed” any of your conclusions. It’s that dawg gone non-obvious stuff again… :-)

  7. When one reads this book it is imperative that the reader understand how the term “innovation” is defined by the authors; to wit:

    “In many other ways, however, patent law shares essential doctrinal features with the law of tangible property. Specifically, patents provide partial rights to exclude others from using an invention as well as rights to transfer ownership. Just as property rights provide incentives to invest in the acquisition, development, and maintenance of tangible property, patents potentially provide incentives to conceive a new technology (“invention”), develop it into a commercial product or process (“commercialization”), and put it to use (“innovation”). Such “innovation incentives” are central to the Constitutional mandate to “promote the progress of . . . the Useful Arts,” which the framers set out when empowering Congress to devise a patent system. But property and patents only potentially provide these incentives. Our review finds well-known evidence that property systems sometimes fail to provide such incentives efficiently…”

    Clearly, their use of the term “innovation” is not synonymous with “invention”. It is being used in the context of a product being introduced into a market. Their scheme involves, in succession, “invention”, then “commercialization”, and lastly “innovation”. With this progression in mind, the crux of their argument is that the patent system is in need of reform because it appears to have untoward effects on others who may want to sell product incorporating an “invention”. Perhaps I am being a bit parochial, but it seems to me that their premise reads “limited times” out of both the constitutional provision and the statutory scheme.

  8. “Have you been on vacation?”

    I wish. My crazy dog was sick, turns out he ate a tampon and needed surgery. Thankfully a full recovery seems possible at this point.

  9. “In 1999, 38% of the cost of litigation among public firms arose from lawsuits involving software patents.” That is an amazing statistics. How do we define “public firms”? Does that include US Steel, McDonald’s and Coca-Cola? Were those firms being sued over software patents in 1999 (almost 10 years ago)? How do we define “software patents”? Does that include anything that relates to computers? I’m kind of skeptical.

  10. Gilbert: Please note for future reference that the name of author of the post appears *beneath* the post…

    Also, a half decent compiler or parser would correct your grammatical errors. Anybody got that number to Monkey Staffing Concepts?

  11. Assuming “software patents” are illegal, which of the following is patentable subject matter?

    -a novel and nonobvious sorting algorithm

    By itself, out (pure math)–needs to be tied with a practical application

    -the sorting algorithm in psuedocode

    out (mere printed matter)

    -the sorting algorithm coded in Java

    out (no computer-readable medium)

    -the sorting algorithm coded in Java and stored on a hard drive on a PC
    -the sorting algorithm coded in C, compiled, stored as an executable embedded in ROM

    out (pre-emption), will be ok with an application

    -the sorting algorithm coded in C, compiled, stored as an executable on a hardrive and used to sort incoming snoozles in a snoozle-sorting widget-forwarder (assume all is well-known except the new sorting algorithm)

    patentable under 101

    -the sorting algorithm described in a hardware design langugage

    -probably out, the implementation on an FPGA might be ok

    -the sorting algorithm implemented only with NAND gates, including the registers for storing the sorted values

    patentable under 101

  12. Legal reform is indeed needed. Consider the university or large tech company that employs pure computer scientists who do nothing but develop better abstract computer algorithms. The kind of algorithms that can be applied in almost any context for better performance, say maybe an incredibly simple and efficient new algorithm to estimate a solution to an NP-hard problem. Now here is something extremely useful and valuable, but getting it allowed can be tricky, and 101 looms on the validity front.

    If there is to be reform, let it not only correct the issues raised by the authors, let it also address the difficulties that some inventors face in even obtaining patent protection.

  13. “Construction must START with the specification, looking to terms that are defined implicitly”

    Somebody’s been smoking that bad pro-patent ditchweed again.

  14. Gilbert wrote

    “Sir. Programming is more complex than most engineering. Get a single character wrong in 750,000 lines of my code, my program is toast. It WILL NOT FUNCTION. So much for trained monkeys.”

    This says nothing about software design. It is nothing more than making sure you use the appropriate grammar. The rigid requirements of coding do not require any intellectual ability, just an attention to detail. That is not to say that this is not a terrible consumer of programmer resources.

  15. Paul wrote:
    “Clever trial or appellate counsel can find different interpretations for an amazing number of claim terms that may have previously looked like they did not need re-interpretation, and even get ‘experts’ to respectively testify that theirs is the only proper interpretation, as evidenced by the large number of Markman arguments and CAFC-reversed Markman decisions.”

    The reason that trial counsel attempt this is that the claim construction rules permit it. That is where the problem is. Claim construction permits the use of dictionaries and other extrinsic evidence to establish the ordinary meaning of a term. This is a wrong first step in construction. Construction must START with the specification, looking to terms that are defined implicitly as well as explicitly. That is what Philips demands.

    My point, to make it more clear, is that there is NO ordinary meaning of a claim term if that term is in the specification, prosecution history or cited art. The meaning is that which the intrinsic evidence gives it.

  16. “Sir. Programming is more complex than most engineering. Get a single character wrong in 750,000 lines of my code, my program is toast. It WILL NOT FUNCTION. So much for trained monkeys.”

    That seems to say more about the primitive state of current software design methodologies and tools than it says about the relative “complexities” of programming and various engineering disciplines. Many engineering disciplines have developed methods for designing in redundancy and/or have developed robust testing methods to catch design errors. Much of software development is still in the dark ages, however, trained monkeys or not.

  17. I do take note that a LAWYER, claiming to be an ex-PROGRAMMER wrote a great follow up. Though he was apparently a frustrated programmer, since he made this statement….

    “Programmers can be among the most intellectually arrogant people in the world – I know, I used to be one.” Budge, Jun 29, 2008

    Then he says,

    “trained monkeys, given enough Jolt cola and Snickers Bars can develop applications.”

    My response to this is simple, I loved your post, except for this. Very well done otherwise. But, based on your statements about programmers. I ask the following:

    “cool, can you program the browser, the wordprocessor, the apache server, AND the application here YOU USED to say these very un-cool things?”

    Sir. Programming is more complex than most engineering. Get a single character wrong in 750,000 lines of my code, my program is toast. It WILL NOT FUNCTION. So much for trained monkeys.

    On the otherhand, the trained monkeys over at MicroSoft are making millions on BugWare. Go figure. So, maybe your part right about the monkeys, but they do not program “Computer Programs” they program BugWare, simple hmm.

    By the way, all you brilliant lawyers out there, have written some great posts, YES even “Budge’. After reading, I see a possible correction to the problems discussed here.

    Looks to me like a cool lawyer wording issue. “Computer Program” or “Software” By what I see here, there is a clear difference. “Computer Program” = “Application” and “Software” = specifically the machine level CODE that is required to operate a CHIP or DEVICE. Without which it would not be able to take instruction from an “Application”.

    Perhaps this is how things got confused? The careless use of words, that may not mean the same thing… “Computer Program” and “Software”. It would make sense, since the law often defines words differently than the public at large. The Patent Office could easily be confused this way to give patents where they are not due.

    Anyway boys and girls, been a blast, keep writing great stuff, I’ll keep reading…

  18. Caveman wrote: The fact is, 90% of “programmers” (and thus the people who are up in arms about “software patents”) are applications programmers or web designers. There is a very slim chance that what they are working on would be compromised somehow by a software patent.

    Your clients must not be applications programmers or web designers.

    Of the software patents I have looked at over the past few years, almost all fell into the category of application programming or web design.

  19. “The fact is, 90% of “programmers” (and thus the people who are up in arms about “software patents”) are applications programmers or web designers.”

    Got a cite for that proposition, Cavey?

  20. There seems to be confusion between claim scope ambiguity and valid claim scope after considering the specification (in particular). True unresolvable claim ambiguity [which should lead to 112 claim invalidity, as the book authors stress] is actually relatively uncommon in asserted patents, especially in comparison to the frequent small differences in claim interpretation leading to claim scope differences. Of course many patent claims will seem ambiguous to people like economists who have not spent years interpreting them, because of the many unique claim drafting and interpretation rules, and case law. Some claims are also difficult to understand by those not familiar enough with the subject technology. Clever trial or appellate counsel can find different interpretations for an amazing number of claim terms that may have previously looked like they did not need re-interpretation, and even get ‘experts’ to respectively testify that theirs is the only proper interpretation, as evidenced by the large number of Markman arguments and CAFC-reversed Markman decisions. Again, that is not really an ambiguity problem, it is just good lawyering in action, and sometimes, it seems, judges looking for a good rationale to decide a case for one side for other, equitable, impressions?

  21. “How about if “impossible,” the claim should be indefinite under controlling law — if the disclosure does not make it possible to understand a claim term then the claims should not have issued. Period.”

    If the claim is vague, then perhaps yes. If the claim is ambiguous, then the question is not “can the claim be understood” but which of the two or more meanings should it have. The latter can always be decided.

  22. There has been a plethora of idealistic or naive comments on this general subject. E.g. the idea of getting a usable answer in a deposition of a deposition-prepared inventor as to what that inventor actually thought or meant many years earlier about the scope of a patent claim that inventor did not write, and may well not even have understood? Or, thinking that a contingent fee attorney for (or as) a patent troll is going to just shut his or her briefcase and go away if the patent claim is not literally infringed, when the vast majority of sued companies would still make them ample settlement payments just to avoid the alternative of huge discovery and even trial costs, because PROMPT summary judments in patent suits are so rare?

  23. “Many programmers are sort of hippie mentality collectivists that think everything should be free (except for their hourly rate).”

    No kidding. Even at personal computing’s infancy, they wanted everything for free:

    link to en.wikipedia.org

  24. “Embedded software of this type, usually finds itself inside machines that are mass produced – a key indicator of the type of thing that should be properly subject to a patent.”

    There would be less of a stir about software patents if it they were strictly limited to the special purpose embedded side of software. A friend of mine works in that and her work product seems a more along the lines of controlled circuit design than an application. Niro’s A method of displaying a JPEG image doesn’t strike me as being limited to being implemented on the embedded level though and that’s the things that make you have to take a look at just what protection should be allowed for.

    I don’t think I will ever get over that. What precisely did people think the JPEG format was created specifically for?

  25. I can appreciate that a single, text-based run-on sentences with user-defined terms is not a particularly effective way to claim a software invention. Can anyone propose an alternative? Open Source, for example, relies on literal copying of source code to enforce the coder’s property rights. Should we just make software patent claims lists of source code available on-line and forget about publishing them on 8 1/2 x 11 inch sheets of paper? Shall we make the enablement test a loading of software code on a suitable machine to see if it runs?

  26. Caveman — send me your resume! You seem to understand our “customers” (programmers) quite well. I work at a successful software company in Silicon Valley that you probably have heard of that writes everything from system level to applications. You are exactly right.

  27. They wrote:

    software patents are four times more likely to be litigated than are chemical patents; business methods patents are twelve times more likely to be litigated; finance patents are 49 times more likely.

    It could just be that financial firms are more arrogant and less willing to purchase a license.
    After all, Countrywide financial is a member of the CPF, and we see how ethical they are.
    then in the tech field, we have companies like Intel and M$ which routinely violate anti-trust laws in different jurisdictions.
    If patent “reform” passes, then these financial giants(who just got bailed out with OUR tax money) and tech giants (you know, the Microsoft “tax” on a new computer ) will have even LESS of an incentive to ever take a license.

  28. “May I suggest that the problem here is not the subject matter, but rather the claim construction protocol. Courts still use extrinsic evidence to interpret a claim. My view is that, if at all possible, all terms in the claim must be interpreted based solely on the instrinsic evidence. Only when that is impossible, can extrinsic evidence be used.”

    How about if “impossible,” the claim should be indefinite under controlling law — if the disclosure does not make it possible to understand a claim term then the claims should not have issued. Period.

  29. “Additionally, it might help to restore a substantial enablement requirement for software patents so that these patents are restricted to claiming more or less what was actually invented and disclosed.”

    This would be a good thing for all patents; unfortunately, the Federal Circuit has focused so much on the claims untethered to the disclosure that patentees are able to ensnare technology that they never could have imagined. Phillips has at least the potential to encourage us to focus more on what was actually invented, but my reading of the recent cases shows that we have not moved far enough . . .

  30. This article recites many “facts” to support its thesis. What strikes me is that they are unaccompanied by reference to any source material. Where did the author get the information he is presenting?

  31. Does the inventor really have an “intent” — I will have to think about this one.

    Can’t claims also cover later invented technologies???

  32. You wrote:

    “When the Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place, although it is highly unlikely that this is what the inventor had contemplated 17 years earlier.”

    May I suggest that the problem here is not the subject matter, but rather the claim construction protocol. Courts still use extrinsic evidence to interpret a claim. My view is that, if at all possible, all terms in the claim must be interpreted based solely on the instrinsic evidence. Only when that is impossible, can extrinsic evidence be used.

    In this way, the claims here would be construed based on the inventor’s intent at the time of filing.

  33. “Surveys regularly find that computer programmers are opposed to patents on software by a wide margin.”

    “Indeed, our evidence suggests an important problem of another sort: software patents are four times more likely to be litigated than are chemical patents; business methods patents are twelve times more likely to be litigated; finance patents are 49 times more likely.”

    Could it be that the real reason for the large software patent litigation numbers is that computer programmers (as compared to, for example, chemical engineers) just don’t make much of an attempt to avoid infringement. All of the dozen or so programmers I have working on my project complain because they are not allowed to cut and paste code that others have developed. In fact, if they are caught doing so is cause for dismissal. From my viewpoint, there seems to be a culture of theft built into the software developer profession, especially those who are not native born U.S. citizens.

  34. CaveMan – nice work – (previously mentioned) an associate of mine actually did get contacted by the authors and asked what they thought of the RSA patent – was it a “software patent”? “business method” patent? patentable subject matter? – no response …

    drei the only problem is folks like you who actually believe you can “control” innovation – which simply means getting paid … i’ll take the inventor over your corporate masters every day … every time

  35. Ah-ha, so we need judges that can understand the subject matter of the patent in suit, do we? How about the entity that is going the find the facts? Should it too understand the subject matter? Seems a pretty basic requirement to me, if justice is to be done. Right then, now we’ve decided on the fundamentals, how are we going to get there, not only in software but also in say biotech? Software’s only the tip of the problem, no?

  36. “Other people admit that there are problems with software patents, but they suggest that this is only temporary: once judges and patent examiners understand this technology better, once they have become familiar with the prior art, etc., then the uncertainty about these patents will abate and litigation rates will go down.”

    Given that the technology is moving so fast that experts in narrow aspects of it have a hard time keeping up, how are the judges ever going to catch up if they don’t understand the current concepts (and I can think of at least one Federal judge who does not understand basic computer programming concepts.)

  37. Anon got it right: The “software patent” label is a red herring that riles up folks who forget that hardware can be implemented in software and vice versa.

    Assuming “software patents” are illegal, which of the following is patentable subject matter?

    -a novel and nonobvious sorting algorithm
    -the sorting algorithm in psuedocode
    -the sorting algorithm coded in Java
    -the sorting algorithm coded in Java and stored on a hard drive on a PC
    -the sorting algorithm coded in C, compiled, stored as an executable embedded in ROM
    -the sorting algorithm coded in C, compiled, stored as an executable on a hardrive and used to sort incoming snoozles in a snoozle-sorting widget-forwarder (assume all is well-known except the new sorting algorithm)
    -the sorting algorithm described in a hardware design langugage
    -the sorting algorithm implemented only with NAND gates, including the registers for storing the sorted values

    As long as the s112 requirements are enforced just as strictly as with every other technology, just what is the problem here?

    Note that PHOSITA could implement all the above embodiments given just a description of how the new sort algo works — what more “detailed description of specific operation” should be disclosed under the authors’ worldview? Why?

  38. Dissecting the Dismal Sciences

    “What’s Wrong with Software Patents” by …
    and When Did You Stop Beating Your Sweet Wife?

    There are two dismal sciences at play here, both involving use of devious mental manipulations.

    Of course we’ve all been trained to recognize the classic, “When did you stop beating your wife” as assuming facts not in evidence. But it’s much more than that because it paints the accused into the corner of being a scourge on the very institution of marriage itself.

    Similarly our dear economist friends who pose the presumptuous question about software plus patents presume with extreme prejudice that they know what patents are, they presume that software coders know what patents are, they presume that there is something clearly demarkable as a purely “software” patent and they presume that there already exists something “wrong” with the mythical manmade stuff, for which they now offer their generous service of rooting it all out.

    Thank you very much Mr. and Mrs. Economists. But why don’t you spend more of your free time fixing the subprime loan mess and shoring up the sinking dollar instead of diddling in a subject area of which you know very little?

  39. spacewrench

    If the software patents do not meet the enablement requirement of the patent statute then, I agree, they should be invalidated.

    However, software inventions are not nor should they be IMHO in the same class as perpetual motion machines requiring actual reduction to practice.

  40. I think you could fix “software” patents by requiring inventors to file a reduced-to-practice implementation of their invention. If the implementation doesn’t work, or doesn’t perform the claimed method, then any infringement suit accusing a machine-executable instruction sequence fails. That would give the public _something_ in return for the monopoly grant. Otherwise, software patent claims are nothing more than a difficult-to-parse statement of a good idea with any number of obvious implementations.

  41. Personal favorite quote:

    “So it does seem that patents on software and related technologies at least have a particular problem with litigiousness. And this problem is central to the poor performance of the patent system generally.”

    So, now, its not just software patents (weakly defined as computer programs, which, last time I checked were not, in themselves, patentable), but “related technology.” Since just about every piece of high technology these days involves software in one form or another, “related technology” includes just about everything. I guess its no wonder then that such technologies (basically everything) “has a particular problem with litigiousness.”

    As for litigiousness, when new ground is at stake, it shouldn’t be surprising to see a battle over it… “Litigiousness” suggests that something important, e.g. something worth fighting for, is going on.

  42. JP, your claim is probably much more a work of art than an application 80% of which was developed with a code generator and the programmer put in few lines to determine where output was written or something like that.

  43. I would echo anon: What exactly is a software patent?

    I think I know, “software patents” is a free floating phrase based on free floating anxiety from a collective nightmare experienced by programmers who are dying to be involved, for better or worse, in the patent spotlight. Programmers can be among the most intellectually arrogant people in the world – I know, I used to be one.

    Many programmers have this sense that every keystroke they make is a work of art and in many cases they are at least half right. Programmers are used to having a sense of freedom to solve any problem by stroking their keys. They have a sense that this thing called “software patents” that they heard about may somehow impede their ability to stroke their keys – and it scares them somehow. Many programmers are sort of hippie mentality collectivists that think everything should be free (except for their hourly rate).

    The fact is, 90% of “programmers” (and thus the people who are up in arms about “software patents”) are applications programmers or web designers. There is a very slim chance that what they are working on would be compromised somehow by a software patent.

    As you get closer to the machine (and usually correspondingly more humble) you join the sparse ranks of embedded development where the chances that what you are doing might be the subject of a patent increase drastically – and rightly so, since this is where innovation in the “software” arena really takes place. Embedded software of this type, usually finds itself inside machines that are mass produced – a key indicator of the type of thing that should be properly subject to a patent.

    Key indicators:
    1) mass production – with relatively high production tooling costs
    2) high NRE (non recurring engineering) costs

    Embedded software:
    1) check – must be installed in every machine to make it work
    2) check – high cost of entire development environment including emulators, prototyping, etc., etc. and circuit/system design and development

    Application software
    1) nope – costs nothing to make copies, may or may not make it to a machine.
    2) hardly – notoriously low overhead, trained monkeys, given enough Jolt cola and Snickers Bars can develop applications.

    Therefore, it seems to me that the people who are grousing most about software patents are people who have the least chance of encountering one.

    Bessen and Meurer have previously shown their propensity for hyperbole and weak conclusions based on weaker or even purely speculative data.

    A bunch of anti patent propaganda if you ask me.

  44. What is wrong with software patents? Nothing.

    What’s wrong with the patent system? Not much. I suppose it could be better, but I actually think it works fine.

    So what is problem? Dumb litigators who can’t read a claim, or prior art, of File History, and want the other side to settle. If you don’t have literal infringement, pack up the leather briefcase Mr. plaintiff litigator. If your spec clearly did not ever think of the infringement scenario that ‘you’ came up ten years later, pack up that briefcase. If you call that little disclaimer in the File History a ‘wart’, pack up the briefcase. Then we can stop reading these articles.

  45. Can anyone explain what a software patent is? How could I identify one? Is a software patent a patent that includes a Beauregard claim? Is a patent including claims that recite functions performed by an ASIC or FPGA a software patent?

  46. Can anyone explain what a software patent is? How could I identify one? Is a software patent a patent that includes a Beauregard claim? Is a patent including claims that recite functions performed by an ASIC or FPGA a software patent?

  47. IMHO, it is the silly extremely expensive discovery battles and posturing which are the main cause of high litigation costs.

    Also, I don’t understand why more accused infringers who are aware of good published prior art don’t take advantage of the reexamination process, especially in this post-KSR world and with two or three pairs of reexam eyes looking at the reexams.

    It is probably because this strategy is contrary to the self interest of the litigators who are advising them. (And as a prosecutor, I admit a self interest in having more reexams.)

  48. Great stat: financial business method patents are 49 times more likely to be litigated than chemical patents.

  49. “Unfortunately, as a result of Federal Circuit decisions on software patents during the 1990s, these patents no longer need to provide computer code, a flowchart, nor any detailed description of specific operation in order to be enabled.”

    If this is true, it seems like far more of a problem than software patents in general. And more easily fixed.

  50. My guess is that software patents which are issuing now after many years of PTO examination experience, after many years of the prior art being identified, classified and published, and following KSR are more likely survive validity challenges than those issuing many years ago. Thus, the “problems” of software patents are disappearing.

  51. I wonder if the software patents which are asserted/contested actually do not include any “computer code, a flowchart, or any detailed description of specific operation”?

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