358 thoughts on “Patent Absurdity: The Movie

  1. To further respond to Winston, I had to go to business papers quoting Darl McBride, who at the time was CEO of Caldera and then SCO.

    Darl did state to the press that he was going after patent infringement:

    link to marketwatch.com

    Further, Chris Sontag was telling people that they had purchased the right to use the patents, and therefore could go after people for violating them. A quick interview of this is here:

    link to linuxjournal.com

    Although the statement on patents was made and was verified by tape recording, McBride later retracted that by downplaying it:

    link to zdnet.co.uk

    The original complaint was based partly upon patents. Desertion here:

    link to catb.org

    SCO was claiming that IBM destroyed part of the code to hide patent violations to the press:

    link to linuxinsider.com

    On their website, SCO claimed the patents back to 1969:

    link to ir.sco.com

    As well as in the press:

    link to eweek.com

    Darl McBrides quotes on patents continued in a lot of newsites with quotes like this:

    They [Microsoft] agree with our approach to intellectual property. They’ve taken a patent license on our technology to build better integration between Unix and Windows. I believe that sends a statement to others with respect to what it means to honor intellectual property.

    Novell responded to SCO’s claims on the IP, including patents:

    link to novell.com

    So SCO was claiming patents at first. Just not after a check with the patent office and that they were called on it.

    Their lawyers are still trying to get all the IP however, so we may soon see that they will claim that the patents transfered as well, as was the original claim.

  2. Can anyone seriously disagree with the assertion in the film that the Patent Bar is essentially a powerful lobby? That is why you rarely (if ever) see balance at patent law seminars which challenges notions on the proper scope of patent law.

  3. We need all to take a dep breath and remember just what patents are for. From the U.S. Constitution delimiting the poers of Congress:
    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
    When a patent runs hinders rather than promotes the progress of science and the useful arts, it runs afouls of the constitution and should be invalidated.
    When a patent is obvious, it should be invalidated. A company whose only product is a software patent and sues forty other companies for violation of that patent, and those companies mostly developed their software independently, it would seem to a rational person that such a patent must be obvious, or so overly broad as to be almost impossible not to violate unintentionally. Such a patent needs to be invalidated. It should never have been issued in the first place.
    I do not know if software patents are good or bad. I do know that some of the ways patents are being issued and the way the system is being managed does not promote the progress of science and the useful arts.
    All of the software patent holders are benefitting from the work of others, using their code and ideas to develop their own derivatives. Some actually innovate. SMP, NUMA, etc are areas where software innovation is/was an actuality and are actually used by the companies that produced them in software products. There are others also. I am just using them as an example. However there are so many more software patents that are granted that at the time only exist as a rather abstract idea on paper with no practical program or algorithm to give them life, until a programmer happens along here and there that implement that idea in the form of a functioning algotithm, and then the fun begins.
    I am not a programmer, pantent holder, or patent attorney.

    Glenn

  4. Ned’s comment about “Socialists and their fellow travelers” not respecting notions of copyright or patent sounds odd to me too.

    Relevant example: Farley Mowat is not, I think, widely read now, but was he once a hugely popular Canadian (and Socialist) author on nature and the environment. On arrival in the then Soviet Union he found himself a multi-millionaire.

    His books had of course been published in Russia, but royalties were payable in non-convertible roubles which could only be spent within the Soviet Union. All the same, those bad socialists had punctiliously paid royalties into a trust account for his use.

  5. Why does Ned Heller believe that “… modern computers all stem from the Manhattan project. This was an American lead project”?

    As far as I’m aware the theoretical underpinnings are due to Alan Turing (a Brit) and the first physical implementations were German, American, and British. None of them had anything at all to do with the Manhattan project.

    Richard Feynman was in charge of the computers (meaning, humans wielding Marchant calculators) at Los Alamos, where the implosion calculations were done. There were no recognizable computers of ‘modern’ architecture there.

    It’s also worth bearing in mind that the Manhattan project grew out of the Tube Alloys projects, which were British-led, and personnel from Europe who had passed through Tube Alloys.

    It’s not that I think the first modern architecture machines were other than American. I do reckon the first modern computer was IBM’s ASCC, that is the Harvard Mark I, but that was never used in the Manhattan project.

    Zuse’s thing was supposedly Turing-compatible but I do believe it should be disqualified – because the memory was so small and could not be realistically expanded (the practical meaning of an infinite tape).

    The Colossus machines were British, though not Harvard architecture and not Turing-compatible as far as I’m aware (Turing was in charge and didn’t need them to be).

  6. “Even so, modern computers all stem from the Manhattan project. This was an American lead project.”

    The Manhattan project made the atomic bomb. It had nothing to do with making computers.

    I have never understood the logic behind the ‘new machine’ idea.

    Here’s a thought experiment: say I write a piece of software that has elements that infringe 7 separate patents. Each of the patents justify themselves by saying that they ‘create a different machine’. When I load it onto a computer, which machine does it become?

    Here’s another one: say I meet someone who’s making a computer different from any others. He gives me a spec of inputs and outputs, and asks me to write a program for it. I do, and I get a patent on some element of the program. My patent claims to transform a general purpose computer into a different machine. If he runs my program on his unknown type of computer, can you tell me anything at all about the ‘new machine’?

  7. Clarification:

    “attempting to understand the subject matter of the patent in question“. (As opposed to patent law, which can also be the “subject matter” here. Sorry for the abiguity.)

  8. @ned:

    “gus3, that was new info about the first computer. Leave it to Nazi Germany to be first in everything.”

    Konrad Zuse had no particular sympathies for either side in WWII. He was just trying to make something that would speed up his engineering calculations. He had to use phone switch relays because vacuum tubes (thermionic valves) were in short supply due to the war.

    Stop reading into people’s statements what you want them to say.

    “Even so, modern computers all stem from the Manhattan project. This was an American lead project.”

    Do you mean “led”? Although, I suppose lead (Pb) was a by-product of the project, eventually.

    “Your light switch analogy is not apt because the switch is not programmed to perform a new function. It simply performs its old function.”

    What “new function” does a transistor in a CPU perform, that it wouldn’t perform in isolation? A small voltage on the base allows current to flow between the emitter and the collector. That behavior does not change between a digital clock and Pentium Xeon.

    link to en.wikipedia.org

    This is the basis of all modern computing. The only difference between the constructions of a PDP-8 processor and a Xeon is that the Xeon has eliminated most of the wires.

    “Now, the video would argue that we were writing books for thousands of years without copyright so why do we need to protect works against copying in order to incent writing them? But we know that it, in fact, does.”

    But even without copyright law, copyright disputes still arise. St. Columba got into a scrap with St. Finnian of Moville over who got to keep a psalter. The former had copied it, in a scriptorium operated by the latter. By the time it was all over, there were bodies on the ground, and St. Columba went into exile.

    “Socialists and their fellow travelers, who wave red flags, wear red hats and follow the precepts of the various French revolutions, would argue that there should be no property rights in new works or inventions, as abstract ideas are the common resource of all mankind.”

    But those socialists you rightly decry rely on governments to impose a way of life on their citizens. You may attempt to impose a limited monopoly for patents, but you have no way to deal with those who refuse to patent their inventions and discoveries. Once again, who are you to tell me what I have to do with my own efforts, what kind of rewards I may and may not seek?

    How would you answer Ben Franklin’s refusal to patent the lightning rod, his “gift to mankind”? Yes, it was patentable, but from what I’m getting of you here, you would simply wait around until someone else asked you to file a patent on it.

    You are showing precious little concern about attempting to understand the subject matter. If you did understand computer programming, you would understand how Amazon’s “one-click” fails the non-obviousness test. I can, with one click, post a comment on this website, and the database interactions are very similar to what Amazon claims. Does every weblog in the world violate the one-click patent?

    “None so blind as one who will not see” (because his paycheck depends on him not seeing).

  9. “But what also seem obvious to a casual observer is that the big softwares of the world want to be able to copy the successful products of others without paying them a dime. ”

    So frakin’ let them try. MS tries to steal software games all the time and no patent (to my knowledge) has been asserted over the games themselves. Guess what? 99% of the time their knock off is a failure compared to the original. It might be a mild success in some cases, and in others it might be fairly successful. Still, I can see no value in stopping MS from knocking off that software. If they want to pony up to make a knock off then let them try.

    Same thing as above seems to go for Mozilla. IE has it’s uses, but by and large Mozilla is better in every way to the (advanced?) user.

    Again, same goes for things like Word, where they may, or may not have used a patented “technologylol”. Note that I have more respect for the kind of patent they had than most that supposedly cover software. And I have nothing but love for the small company that they quashed neath’ their heel, but if the small company couldn’t be bothered to make their product worth people buying in some of the hundreds of gazzillions of ways to do so without the need for gov PROTECTIONLOL then I’m sorry, but don’t expect to survive the competition. Btw, I’m going to laugh my arse off when that company still fails within a few years.

    Companies fail, in my limited but astute experience, mostly because they’re retrds and/or their market dries up (or never existed) ala capitalism/innovation, and those guys in the MS suit have retrd written all over them, no offense to them. It may very well also be the case that many companies go out of business because of COMPETITION, aka other people making something functionally the same as their product and then beating them out of the market. I have little doubt that such a thing would also happen to software companies. Maybe they should try making their software or “product” (the software + support etc.) so good that won’t be a problem? Kind of like, I don’t know, running a business? Maybe they should also note that maybe there simply isn’t enough business to support them if they should get some competition and consider that a business risk.

    Guess what? MS has money. MS has popularity. MS has distribution. MS has got it all except some things, like the personal touch. They’ll never have it. There are many other things they will never have. Good customer service is yet another example. There may be some things you need to do before you can go toe to toe with them. Things like, oh, I don’t know, serve the consumers of your software better, and foster a great reputation that spreads. MS is a corporate giant, but it is hardly impossible to compete with unless you’re dam near retrded. There are countless companies doing so as we speak, many without patents.

    And the same goes for the other “bigs”. The problem, sir, may be that your small guy clients are actually retrds (perhaps creative retrds), are trying to put out a product in a market where they simply don’t stand a chance or both. Guess what? That’s capitalism for you. It kills untold amounts of businesses every year. Apparently that’s a feature.

    Why don’t we hear you advocating for sandwich patents? Whatever would we do if the Jerry’s down the street couldn’t compete with Potbellies because they OVERCHARGE YOU? Surely, their new italian sandwich that has nearly (if not completely) the same stuff as the other shop’s sandwhich should be PROTECTED. Whatever would we do if a mom and pops store pops up, has all great new sandwichs that they wanted protection for, and then Potbellies copies them and drives them out of business? OMFGOMFGOMFG? Whatever would we do?

    Heck Ned, sandwiches are blatantly products right? Where’s the outcry and the advocacy for those poor start ups?

    Let’s be clear Ned, while I personally do not espouse “protecting” the “functionality” of software, that is a policy decision to be made by congress. It is not the business of the PTO, lawlyers, or the courts to shoehorn it into patents, where plainly the arguments for doing so border on the absurd. See for example the ol’ “algorithms are structure” and “I has a new product but I won’t/can’t tell you what it is and you should totally give me a patent just on the basis of it having a new function (or the function of a computer “loaded” with some instructions from the supposedly new product”). Sounds to me like what these people have is something that isn’t structure and a function in product’s clothing respectively.

    That said, I do not begrudge you such protection if congress should decide, on policy grounds, that software should get protected by some means. Just as I would not begrudge sandwich makers such protection. Indeed, I like new sandwiches and would like to promote the art o sandwich making. Be that as it may, I think you’ll find the policy argument much harder to drive home when you suggest a 20 year exclusive period. Try perhaps a 2 year exclusive period then you may even have some support. Maybe instead of novelty req’s you could make the req “first to bring this functionality to market” or something like that for your software protection. I’m just spitballin’ but hey, there’s plenty to play around with in such a proposal.

    “Furthermore, 6, assuming novelty and non obviousness, just how is the innovator of new software riding on the coattails of anybody?”

    Novely and non-obviousness of what? The computer? Or the software? Perhaps the computer with the software on it?

    Assuming one of the above, then the “innovator” of the new software, aka the “author”, is riding the coattails of the guys with glasses in the labs at IBM et al., who make you a better computer every generation, everytime he patents their new machines by using them and claiming he made a new machinelol. Frankly if I were IBM I’d find/make a way to sue the sht out of the gov or for implementing software patents in the first place, as they make the products that they invent, make and sell very much less useful. That or lobby them out of existence back in the day before they got a stranglehold on the system.

    I’d tell this “innovator” author person no, ya jackarse, you didn’t make/invent/dream up/create sht. You wrote some sht. And then maybe wrote it on some disks (or in barcodes lol broje) and sent them to others. Or put it on the net. You might be unfamiliar with the process of actually making something, and things which are made, but it doesn’t usually involve WRITING any part of the thing you’re supposedly MAKING.

    ” Are you suggesting, by analogy, that the inventor of a printing press has exclusive rights to all future books printed on it because otherwise the authors would be riding on the coattail of the inventor of the printing press?”

    No. I’m not.

    “A better analogy might be a programmable machine tool. The tool stays the same, the programming changes. But with different programming, the tool may operate differently.”

    Since you just admitted that the tool stays the same then I think you resolved whatever issue you were trying to bring up largely without my involvement. A tool operating differently may give rise to a process claim, but you’re sure as f not going to convince me that a tool that you just admitted “stays the same” as when it was old is “novel”. A process claim that, as MM reminds us, is subject to Bilski, er, Bilko, er, yeah Bilski.

    And yes, that was an ok analogy.

    Apologies for waxing poetic, I was kinda bored, Hulu is the sux atm.

  10. What’s in it for the thousands of volunteer developers, thousands of volunteer technical supporters, thousands of volunteer testers, thousands^Whundreds of volunteer authors like myself?

    Who are you, MM, to answer that question for me?

    Just a patent attorney who could whip out a couple “software applications” right now, file them before the PTO closes and probably get some claims to issue which I could then assert against some business a few years down the road. If your initial response to this information is “Well, why don’t you do it then?”, you’re probably part of the problem.

  11. Tufte badly misinterpreted the application in question. He made the mistake of basing his analysis, such as it was, on the title of the patent application, which has no legal effect. A reading of the claims of the application, which hasn’t seen its first office action yet, shows that it’s considerably narrower than Tufte and many of his readers made it out to be. Furthermore, Microsoft cited Tufte (amongst others) as prior art in its IDS. The phrase “cobbler, stick to thy last” comes to mind.

    There may be good examples of Microsoft’s patent strategy harming users, but I don’t think that’s one of them.

    True, and I won’t dispute that, but it was the first one I came across. I have looked into several others since then, not too seriously because I believe that prior art should be able to be introduced and force a reexamination. What I believe is that some of them are just filed to create confusion for a while. Get some of Microsoft’s many detractors focusing in on something else so that they ignore what may be in front of them.

    Strangely, it has only been in the last few years that a lot of frivolous patents have been filed. I would say that is because of the advent of communal dissemination that is occurring because of the Internet, and that they wish to prevent such from other areas, such as the question of monopoly pressure.

  12. Winston, I had some of those for a long time.

    As for the amended complaint, it’s just that. Amended. Which means that it was not the original complaint, or the complaint, impression, knowledge, or speeches that they gave at the shows which stated that it included patents that they owned.

    The shows, which they had the code under an ND, especially to the press, but not to those who they claimed were infringing on their IP, including copyrights and patents, were ever brought to light.

    Currently, they are asking that the judge grant them all IP in Unix, transferring the copyrights, but then, if they get all IP that is in Unix, they can also then argue that they own the patents within so that they can use it in SCOsource.

    in 33, of SCO’s Proposed Findings of Fact and Conclusions of Law, they are setting themselves up for this argument with “Novell through the APA effectively transferred to SCO ownership of the UNIX and UnixWare business in its entirety, subject to Novell’s receipt of certain royalty rights and protections of those royalty rights.”

    In 34, they indicate that the entire business, which includes all IP such as patents was to be transfered to them.

    Like any good lawyers, SCO’s, while arguing for the copyrights, are setting up an argument for getting the patents later on.

  13. @James Daily
    “So you admit that the lack of software patents enabled Microsoft to achieve a dominant position in the software industry?”

    In other words: Microsoft made “innovative” (in the sense that people wanted it anyway) software since there was no software patents which hindered them, and they therefor rose to a dominant position, and therefor we need software patents?

    That seems hardly like an argument FOR software patents! :) Rising to a dominant position is not a problem in a free market. The problem comes when you are in a dominant position and enforcing it with, for instance, software patents (refer to Chris’s post above for Jobs position on that, it’s strange how things change once on top). It seems to me that you think Microsoft is bad,otherwise I don’t understand your argument above, and you need to ask yourself why that is.

  14. Philip says (paraphrased):

    “The proofconjured up “reports” that software patents are bad for the software industry is shown time and time again, every time we see a report about the latest court case where someone with the simplest software idea in the world successfully sues for hundreds of millions of dollars in ill-gotten gain”

    So how are these reports any different from “saying it” and making it true? These studies and reports are hardly objective.

    If you insist on an example of a useful patent related to software how about Lempel-Ziv compression U.S. Patent No. 7,507,897

    Read the story at link to en.wikipedia.org

  15. Well the book/printing press is somewhat apt because writing books only minimally rides on the coattails of the inventor of the printing press, but protection of the work was itself was recognized an beneficial to promote works of authorship and thereby learning and the progress of science.

    Now, the video would argue that we were writing books for thousands of years without copyright so why do we need to protect works against copying in order to incent writing them? But we know that it, in fact, does.

    Socialists and their fellow travelers, who wave red flags, wear red hats and follow the precepts of the various French revolutions, would argue that there should be no property rights in new works or inventions, as abstract ideas are the common resource of all mankind. But such thinking is seriously flawed regardless of it being so widespread and accepted. These ideas of the property-less altruist state, while notionally attractive, are the bane of the modern age.

  16. You know, just once I’d love to see someone who is pro software patents actually provide some real, convincing, verifiable proof of their claims that software patents are vital for the continued health of the software industry. Unfortunately, I’ve been waiting for years, and I’ve still not seen it. Apparently it’s so much easier just to spout the claims over and over again in the belief that just saying it makes it true.

    The proof that software patents are bad for the software industry is shown time and time again, every time we see a report about the latest court case where someone with the simplest software idea in the world successfully sues for hundreds of millions of dollars in ill-gotten gain.

  17. Undoing an old weld is a new function, and I suggest, entirely patentable. But the machine stays the same throughout.

    So we’re in agreement, then? Patentable method, unpatentable machine-comprising-instructions?

    Software is still a field where a few people can get together and build something really innovative in a few weekends, with a budget of only a few hundred dollars. How much do you feel is a reasonable amount for them to spend on consulting with an IP lawyer first?

    That depends. How profitable do they think this “something really innovative” might be for them? How important is it for them to prevent competition from some larger company with better distribution channels that could copy their “something really innovative” with a budget of only a few hundred dollars?

    I suppose your next point will be that it shouldn’t cost ten grand to do something really clever that could only cost a few hundred to do. I’ll concede that one, but it’s the price they pay for a system that protects people’s “something innovative” where it would otherwise be very cheap to sit back and wait for other people to do the inventing and then steal their ideas.

  18. “Speaking for myself, it’s nice to have an occupation where I need not worry about infringing a ridiculous patent claim”

    Like posting all-day every day on PatentlyO, not much of an occupation Mooney…

  19. That’s a bad assumption. As I said above, read up on “Turing completeness” to see why.

    Turing-completeness doesn’t destroy the novelty of later-written software any more than movable type destroys the originality of later-written books. All Turing-completeness destroys is the concept of any computer as a “particular machine”, unless it has special user interface hardware or something.

  20. “Are you suggesting, by analogy, that the inventor of a printing press has exclusive rights to all future books printed on it because otherwise the authors would be riding on the coattail of the inventor of the printing press?”

    Not that I agree with 6′s position at all, but wow. Nice analogy there Ned. Because of course we all know that patents and copyrights are the same.

    Your argument actually works better to support 6′s side. Copyrights were created to protect books since they were not patent eligible.

  21. Your argument is that patents hold back the art more when the art has already lost interest in the patented technology during the term of the patent?

    “and everything invented since then” being the key phrase in what I actually said. My argument is that, if all the basic tools in a field are patented, it makes it either very difficult or very expensive to innovate.

    Let’s try a different example. Software is still a field where a few people can get together and build something really innovative in a few weekends, with a budget of only a few hundred dollars. How much do you feel is a reasonable amount for them to spend on consulting with an IP lawyer first?

    Then, of course, you could say that if they make it big, and actually become a target for lawsuits, they can afford to license the technologies. Go ahead, try telling the owner of a new startup that they’re now facing a lawsuit from a much larger competitor, because the competitor thought of something tangentially related first.

    My assertion is that patents are far too heavy a tool to be applied to software.

  22. gus3, that was new info about the first computer. Leave it to Nazi Germany to be first in everything.

    Even so, modern computers all stem from the Manhattan project. This was an American lead project.

    Your light switch analogy is not apt because the switch is not programmed to perform a new function. It simply performs its old function.

    A better analogy might be a programmable machine tool. The tool stays the same, the programming changes. But with different programming, the tool may operate differently.

    Now, lets assume the tool welds one part to another. Now, lets assume with particular settings, an old weld is undone so that it might be redone. Undoing an old weld is a new function, and I suggest, entirely patentable. But the machine stays the same throughout.

    Better analogies, please.

  23. “Furthermore, 6, assuming novelty and non obviousness…”

    That’s a bad assumption. As I said above, read up on “Turing completeness” to see why.

  24. Are you suggesting, by analogy, that the inventor of a printing press has exclusive rights to all future books printed on it because otherwise the authors would be riding on the coattail of the inventor of the printing press?

    Yes. The inventor (patentee) of the printing press has a cause of action against people who print books on his patented printing press during the term of his patent.

    Are you suggesting that every new arrangement of movable type in a printing press makes it a new and 101-patentable printing press?

  25. “We truly need to stop saying the computer is not “new” as this argument borders on the disingenuous. It cannot be taken seriously.”

    Actually I take it srsly and it is very ingenuous. The only reason you (and others) apparently want these machines to be “new” is that you weren’t the maker of the actual machine and now want to ride coattails.

    Posted by: 6 | Apr 20, 2010 at 05:15 PM

    6, reading minds, now, are we? But what also seem obvious to a casual observer is that the big softwares of the world want to be able to copy the successful products of others without paying them a dime.

    Furthermore, 6, assuming novelty and non obviousness, just how is the innovator of new software riding on the coattails of anybody? Are you suggesting, by analogy, that the inventor of a printing press has exclusive rights to all future books printed on it because otherwise the authors would be riding on the coattail of the inventor of the printing press?

    6, I must say, your thinking is remarkable for plowing new ways of looking at reality.

  26. I’m not sure the pro-software patent side on this site really understands how much faster software moves than other fields. Imagine patents lasting 200 years; imagine patents still existing on basic technology like steam engines, and everything invented since then; and you’ll understand how much potential software patents have to hold back the state of the art.

    Your argument is that patents hold back the art more when the art has already lost interest in the patented technology during the term of the patent?

    You’re entitled to your opinion, I guess, as long as I get a software gearbox that can handle the torque from my steam engine. Come on, people. This is basic technology.

  27. Winston said:

    “I’m not sure what your first sentence means in context. I’d think you would applaud the system for invalidating patents based on glaring 102 and 103 issues.”

    I was saying I disagree completely with your characterization that “glaring 102 or 103 issues” (as you put it) are what peeves people about software patents. It’s not. Those cases, while they make headlines, are the exception and not the rule.

    What peeves people in actuality is when they see the news saying things like “Microsoft patents sudo” (referring to said patent 7,617,530). At best, those headlines were a blatant exaggeration. At worst, they were an intentionally false statement to drum up web page hits on a slow news day.

    Or more often, people get peeved when they actually see what was patented (like Microsoft’s patented gui-help-menu-in-sudo) and they say “that’s been done a million times before! They can’t patent that!” Well, without the PUBLISHED source code to back that statement up, it’s not a “glaring 102 or 103 issue” by any stretch of your imagination. It becomes much closer to your example of a guy working in his basement trying to invalidate a patent based on work that he never told anyone about.

  28. “What exactly is in this for me if I am a developer?”

    What’s in it for Linus Torvalds? What’s in it for Andrea Arcangeli? What’s in it for Alan Cox? What’s in it for Con Kolivas, DDS? What’s in it for Dr. Stallman? What’s in it for Juliet Kemp? What’s in it for Dru Lavigne?

    What’s in it for the thousands of volunteer developers, thousands of volunteer technical supporters, thousands of volunteer testers, thousands^Whundreds of volunteer authors like myself?

    Who are you, MM, to answer that question for me? If you want to be paid cash on the barrel head for your programming, fine, but don’t say you speak for me on the matter.

    Normally, I don’t answer trolls, but after Harlan Ellison’s temper tantrum last year on this very topic, I won’t let it slide.

  29. One of the major problems that software people have with software patents is the duration. I’m not sure the pro-software patent side on this site really understands how much faster software moves than other fields. Imagine patents lasting 200 years; imagine patents still existing on basic technology like steam engines, and everything invented since then; and you’ll understand how much potential software patents have to hold back the state of the art.

    There is a fine line that intellectual property walks, between promoting and preventing the progress of the art. Software patents are way the hell on the wrong side of that line.

  30. “The first credible article I saw was this one: link to edwardtufte.com

    Tufte badly misinterpreted the application in question. He made the mistake of basing his analysis, such as it was, on the title of the patent application, which has no legal effect. A reading of the claims of the application, which hasn’t seen its first office action yet, shows that it’s considerably narrower than Tufte and many of his readers made it out to be. Furthermore, Microsoft cited Tufte (amongst others) as prior art in its IDS. The phrase “cobbler, stick to thy last” comes to mind.

    There may be good examples of Microsoft’s patent strategy harming users, but I don’t think that’s one of them.

  31. I’m not sure where NWPA gets the idea that Linux Torvalds “copied UNIX”. Maybe he’s confused by the command interface. But that’s not the kernel.

    Torvalds’ original 1991 post kicking the project off made it clear that he wanted to write his own operating system, with whoever else might be persuaded to help, to take advantage of the new capabilities of the i386 chip series.

    People have made much of it being “just another UNIX” or “just another MINIX”, but it was neither. The IEEE put out a standard some three years previously, called POSIX, which described the way a UNIX-like OS should behave to the developer and user.

    Torvalds’ Linux was just a kernel, with a POSIX-compliant interface. That made it look like UNIX to those disinclined to peer under the hood. But it was not related to any of the varieties of UNIX otherwise. All the code was new and original expression, which made it possible to protect it with copyright law.

    From the FAQ: “POSIX is an acronym for Portable Operating System Interface”. Interestingly, Richard Stallman was responsible for the name.

    Though named “POSIX”, the IEEE standard was not UNIX, for it says nothing about the kernel.

    As for the model of development, I don’t think the Linux folks set out to create a new one. But the consensus is that they did.

    The Linux model differed from earlier collaborative projects in several respects, including the benign despotism of the project head. But what impressed the security professional who lectured me on the subject in 1997 was the way in which somehow the development model got all the prima donnas in charge of the various distributions to work together – something, he said, no previous UNIX project had managed to do, be it proprietary or open.

  32. The only reason you (and others) apparently want these machines to be “new” is that you weren’t the maker of the actual machine and now want to ride coattails.

    To quote Dr. Gregory House, “That’s a great idea. For the guy who invented the computer… Your idea was to use his idea.”

  33. A bill which is an extraordinary cost just to do what I want in my business.

    You know what that reads like to me, it reads like communism to me, take from the producers and give to those who don’t!

    Actually, that’s capitalism at its finest. Take money from the people who have it, because that’s where the money is. Spend it as you see fit, because it’s yours now. Put another way, you are encouraged to seek your fortune, but everyone else is seeking it too.

    Is a light switch the same switch in the Off position as it is in the On position?

    Yes. It’s a switch. By its very nature, it is a thing in one of two positions and capable of being reversibly put in the other position. A car is the same car whether or not the engine is running, too.

    Or, if you answer “Yes”, then how do you claim differently for a very large collection of high-speed switches? Because that is what a computer is.

    When you connect a billion switches in a particular way, you might have something there. When you build a better switch, that sounds patentable too. Flipping some of the switches that are already there, not so much.

    I may go into the basement of the Empire State Building and flip breakers until the lights in the window spell out L-O-V-E. Have I violated any patents on the breakers by doing so?

    Use is patent infringement, right?

  34. “We truly need to stop saying the computer is not “new” as this argument borders on the disingenuous. It cannot be taken seriously.”

    Actually I take it srsly and it is very ingenuous. The only reason you (and others) apparently want these machines to be “new” is that you weren’t the maker of the actual machine and now want to ride coattails.

  35. “A programmed GP digital computer that performs a new function because of the programming is not the same machine as one that does not have the programming.”

    Is a light switch the same switch in the Off position as it is in the On position?

    Is the switch at the phone company the same switch when it connects you to your girlfriend’s cell phone, as it is when it connects you to your wife on your home phone?

    If you answer “No”, are you saying you have removed the switch and replaced it with another switch (maybe even one that’s identical)?

    Or, if you answer “Yes”, then how do you claim differently for a very large collection of high-speed switches? Because that is what a computer is.

    A patent holder may claim a production monopoly on a particular type of switch, but it cannot claim a monopoly on how that switch is used. I may go into the basement of the Empire State Building and flip breakers until the lights in the window spell out L-O-V-E. Have I violated any patents on the breakers by doing so?

    Incidentally, the first system that we would now call a programmable computer was the Z3, built in 1941 by a civil engineer named Konrad Zuse in Germany. It was built with phone switch relays, not breakers or light switches. With enough storage, it could accomplish any calculation today’s computers could handle, just not as fast. Read up on “Turing completeness” to see what that’s about.

  36. Defensive patents, so let me get this straight, a patent cache obtained to keep other people off my back.

    Do we see the nice patent people all sitting there taking money for the services. (If the USPTO charged for each application it might be more interesting.)

    All for what to have granted to me a finite time monopoly so that I can then cross licence to stay in business.

    What exactly is in this for me if I am a developer?

    A bill which is an extraordinary cost just to do what I want in my business.

    You know what that reads like to me, it reads like communism to me, take from the producers and give to those who don’t!

  37. Patents make the most sense for innovations that either: (a) can successfully be kept as trade secrets; and/or (b)require a significant expenditure of resources to bring to market.

    Software does not strongly fall into either of these categories. However, for startups, the amount of resources placed at risk seem much larger. Category B therefore applies for small entities, and patents help a new market entrant penetrate the market, without fear that a larger competitor with established market streams will simply copy the innovation more successfully.

    Thus, the argument for software patents is that they help the little guys establish their businesses. It is ironic that the anti-software patent crowd is composed of big players like Cisco, Google, Apple, Dell, Intel, and Microsoft (members of the deceitfully named “Coalition for Patent Fairness”), but that the propaganda being trotted out is that software patents hurt the “struggling individuals.”

  38. Programmers find it increasingly difficult to wrote software they won’t be liable to be sued for.

    Any programmers out there who think it is easier to write software that they won’t be liable to be sued for than, say, ten years ago?

    Speaking for myself, it’s nice to have an occupation where I need not worry about infringing a ridiculous patent claim that should never have been granted. Of course, if Bilski had his way, that could easily change.

  39. 0+1=1

    1+1=2

    Are you willing to file a patent on those equations? Because ultimately, that’s what all mathematics come down to: adding 0 (additive identity) and adding 1. But the lawyers for Bilski and Warsaw don’t know enough math to understand that they’ve been snowed.

    Then again, there is none so blind as one who will not see (because he might lose his fat paycheck if he did).

  40. MM: YOU started calling names (again) not me.

    Yes, I called you a doofus because you made a doofus-worthy comment. It’s a bit different than your incessant, habitual trash-talking which proceeded (and still does) without any explanation or justification other than your personal issues.

  41. PS, I couldn’t disagree with you more. A programmed GP digital computer that performs a new function because of the programming is not the same machine as one that does not have the programming.

    We truly need to stop saying the computer is not “new” as this argument borders on the disingenuous. It cannot be taken seriously.

  42. Several comments:

    “patent examiners who essentially receive credit for their work only when they issue or uphold patents” <= definitely not talking about the USPTO point system

    “Software is made by individuals, tiny companies, non-software companies (who just write something to get their real work done).” <=
    as well as Microsoft, IBM, Oracle, Adobe, etc.

    “And the hobbyists can’t be dismissed either … the big companies jumped in when it was already working” <= the “hobbyists” were often well compensated or sponsored by big companies, thus allowing the hobbyists to work on FOSS projects

    I have not yet seen complete, convincing arguments either for or against software patents. All we have thus far is FUD on both sides of the argument.

  43. PS,

    Presume someone claims a computer readable medium storing code operable to casue a computer processor to perform blah blah blah

    If you have a PDF file that merely displays the code on a screen, then you don’t infringe the claim.

    Software patents don’t prevent people communicating about the code. They just stop you from making, using, or selling the application itself.

  44. >>sockpuppets included. Feel free to start up >>your shenanigans again. Or better yet: get a >>life.

    MM: YOU started calling names (again) not me. And I never had any sockpuppets–YOU did and do. And YOU spend all your time on this blog not me.

    Sheesh.

  45. And, oh boy, did you cry a river of tears of how unfair it was that I (and many others) keep calling you the banned name.

    There was no crying, NWPA, just a promise to join you in your own game, sockpuppets included. Feel free to start up your shenanigans again. Or better yet: get a life.

  46. MURDERERS ARE FINDING IT INCREASINGLY DIFFICULT TO COMMIT ACTS THAT THEY WON’T BE HELD CRIMINALLY LIABLE FOR

    It’s not just the serial killers or the killers-for-hire anymore either. It’s the individual murderers, organized crime startups, non-murderers who just kill people to get their real work done. These people can’t be just told “too bad, deal”.

  47. MURDERERS ARE FINDING IT INCREASINGLY DIFFICULT TO COMMIT ACTS THAT THEY WON’T BE HELD CRIMINALLY LIABLE FOR

  48. So if you don’t like h.264, or more precisely paying the licensing fees to use h.264, just use OGG instead. However, if you want the desirable features and near-universal adoption of h.264 by users, pay the fees. It’s that simple. The patent holders have invested time, energy, and creativity in creating software products deemed by the patent office to be sufficiently novel and non-obvious to be anticipated, and I believe that an Examiner’s stamp of approval means something. If you disagree in any instance, feel free to seek a declaration of invalidity. However, given the utility of software, I feel it is the natural conclusion to make it patentable in some form.

  49. Hey Matt, take your BigGulp and your intelligence (which you can easily carry in a small bag) and go over to TechDirt with all the other teenagers. You can bash patents all day with your armchair understanding of the world.

    Google “Monstanto corn wars” and maybe you will be blessed with a moment of clarity.

  50. Nice try PS, for a lay person. Your example is simply analogous to whether a person buying a product that is covered by a patent would be guilty of infringement. The short answer is yes, (make, use or sell). But such a person would never be sued – its bad for business. The patentee generally swims upstream, which is where your little manifesto falls apart.

  51. PS

    The difficulty with using copyright law is that only the expression of an idea, and not the idea, can be protected. It is very hard, especially when looking at source code, to distinguish between “idea” and “expression of idea”. Also, copyright is not supposed to protect things that are functional.

    There’s at least one software copyright case out there (Atari I think) where the judge all but said that software belongs to the patent world.

    Software seems to be an orphan that nobody really wants to protect because it is too difficult to figure out how to do it.

  52. “Imagine if corn was patented”

    Someone has never heard the name Monsanto…

    Crawl out from under that rock. Mooney can take care of himself under there…

  53. The people who are against patents (or software patents in particular) are advancing their dedication to communism, so that all ownership of intellectual-property is turned over to their new People’s Republic of the Internet, whether that IP be patents, MP3s, videos, and so forth. (Their communism is so rabid, that they cannot patiently wait the 20 years for the Founding Fathers’ patent system to transfer ownership to the people.) The goal of the FLOSS movement (freedom, libre, open-source software) is to “liberate” the software from corporate ownership. Google-/Bing-search “dot communist manifesto”, then read it. Please note the author of that document. Please note the FLOSS organizations that he is affiliated with. Then investigate who the “fellow travelers” along with the communists are. You will see the same list of universities and URLs of the fellow travelers of these communists who want to bring down capitalism. You will find them aligned with movements as Net Neutrality, that seeks to prohibit tho capitalist’s approach to the Internet or telephone network: paying rent for an assured minimum amount of bandwidth and quality of service (QoS). Make no mistake: this communism is intended to bring down capitalism, including *all* of its powerbases.

  54. MM wrote: >>You’ve got an opportunity to refute it now, doofus.

    Now MM you got the label that I fixed you with banned from this blog by stomping your feet and crying. And, oh boy, did you cry a river of tears of how unfair it was that I (and many others) keep calling you the banned name.

    Should you really be calling me a name? You want me to rename you? How long would it be before you started to cry us all a river of tears again and disrupted this blog so much that Dennis would ban the new name?

    Behave little boy.

  55. Oh, you say you made a disc containing a program with a gui help menu for sudo years before Microsoft filed for the patent on it? Too bad the patent office and the courts can’t prove or disprove that, since they don’t have any source code to look at, as the code was never published in any way. Have fun paying Microsoft to use it for the next 10 years. Unless of course SCOTUS takes care of that for you . . .

    Patents are invalidated with proprietary prior art all the time. If you did something in your basement that Microsoft later patents, though, it’s not necessarily invalidating prior art. Even if it is, you can’t very well blame Microsoft or the patent office for not knowing what you were doing in your basement. The same problem would exist if Microsoft was in the hammer business and patented a new hammer similar to one you made and used in your basement. You may not have documentation sufficient to submit to the patent office and initiate an inter partes reexam, but you’d be able to testify and present what evidence you do have should Microsoft ever attempt to enforce the patent.

    Only in cases where the courts quickly overturned the patent based on 102 or 103. In other cases it’s more an issue of software makers never releasing their source code, ever.

    I’m not sure what your first sentence means in context. I’d think you would applaud the system for invalidating patents based on glaring 102 and 103 issues.

  56. There is no longer a distinction between possessing all the information about the invention and practising the invention.

    What if you had a copy of the patent? Wouldn’t that give you all the information about the invention without spontaneously causing your computer to execute code?

  57. Lost in all this discussion is the following fundamental difference between software (and business method) patents on the one hand and traditional patents on the other:

    Patents are supposed to encourage the dissemination of information on an invention by granting a limited monopoly on the practising of the invention. This assumes that there is a significant difference between possessing information about the invention and practising the invention. This assumption is true for traditionally patentable subject matter but false for software and business method patents.

    Having in your hand a blueprint for a mousetrap does not naturally lead to practising the invention. In order to make mousetraps one must invest in materials like wood or metal (materials which will be permanently committed to the making of the trap and not available afterwards) and must commit time and energy to manufacturing the traps.

    By contrast, having in your computer’s memory the object code for a software program, or even merely the source code in some cases, will automatically result in one practising the invention encompassed by that software program as soon as the computer’s instruction register reaches that memory address.

    To take another example: if a web page contains an expression of ideas along with some javascript source code enclosed within “script” tags, and if a person visits that web page with a standard browser, that person’s computer will automatically begin executing the software program whose source code is embedded into the web page. If that program is patentable, that means a person can be technically infringing on a patent merely by visiting that web page.

    There is no longer a distinction between possessing all the information about the invention and practising the invention. Therefore, it is not possible for patent law to limit the rights to practising the invention without simultaneously limiting the rights to possessing and copying information about the invention.

    Therefore, since the goals of patent law cannot be met in this field, software should not be patentable. Instead, protection of software should be done through copyright law. That is the appropriate means for protecting inventions which can be practised merely by copying information. Copyright law is better equipped to deal with restrictions on the free exchange of information than is patent law, since patent law was designed to allow unrestricted free exchange of information.

    I think there should be a return to the “useful, tangible result” criterion with one clarification and one addition. The clarification should be that “tangible” must literally mean what it says. Tangible is not synonymous with “specific”. Money is not tangible (unless you are referring to a specific bill or coin.). Profits are not tangible. A result is tangible if it can be touched, or pointed to; something that occupies a well-defined location in space and time. And, it needs to be a “result” of the patentable process in that it is tangibly and permanently (at least, permanently short of explicit intervention to reverse it) different from what existed before the process.

    A computer is a tangible device, but a general-purpose computer running a particular software program is no different from one that is not running the program, except for transient differences in the voltages and currents in particular memory and bus locations. These transient differences are the of the same sort as those which would occur during the running of any software program; they are distinguished only by being representations of different information. Therefore, such devices should not be patentable, because patents are not supposed to be restricting information.

    A specific-purpose computer, built with circuitry specially designed for optimal execution of a specific algorithm, could well be patentable subject matter. However, it is absurd to allow a patent which merely involves combining an existing device with new information, for then the only way to control the practice of the invention is to control the dissemination of the information to devices, and this puts patent law at odds with itself.

  58. “Realistically, what has brought this debate about is SCO, formerly Caldera. When they went about claiming…patents they didn’t own”

    As far as I can tell SCO never made any claims of patent infringement or any controversial claims of ownership of patents, although IBM did allege patent infringement in its counter-claims against SCO.

    From SCO’s own website: link to sco.com

    link to computerweekly.com

    link to computerweekly.com

    link to computerweekly.com

    link to computerweekly.com

  59. Some say it started with this article

    Did you just google microsoft and patent and link the first three results? None of those links show what you claim.

    Actually, they claimed everything dating back to 1969 including patents and copyrights by lumping it under Intellectual Property.

    What patents did SCO assert against IBM? (Hint: they didn’t assert any)

    Here is SCO’s second amended complaint, in all its ridiculous glory:
    link to groklaw.net

    Read it and let us know where the patent claims are.

  60. The basic argument remains that mathematics are either abstract ideas or laws of nature. We can, it is said, patent useful applications of the such mathematics, but not the mathematics per se.

    But this line of thinking is unsound. Most mathematics are not laws of nature. Neither are they abstract ideas when they have a practical, useful application.

    Generally, with machines or compositions of matter, the first discoverer of utility for such can claim the machine or composition per se. Thereafter, no one can claim the machine or composition of matter again simply because one discovers a new use for it. One has to claim the new use.

    By analogy, it seems logical to say that if one discovers a practical use for new mathematics, not a law of nature, one should be able to claim it per se. Thereafter, one should be required to claim any newly discovered practical application of the mathematics by expressly claiming the new use.

    These basic principles are as old as the hills. But for some reason, we seem lost in obfuscation when we talk about the topic.

  61. darn you, Chris, you took my handle.

    Winston said:

    “The fundamental complaint that most detractors of software patents seem to have, though, is that some issued software patent making news should have failed under a 102 or 103 analysis. That’s more an issue of rigor in examination than patentable subject matter.”

    Only in cases where the courts quickly overturned the patent based on 102 or 103. In other cases it’s more an issue of software makers never releasing their source code, ever.

    Oh, you say you made a disc with a gui help menu for sudo years before Microsoft filed for the patent on it? Too bad the patent office and the courts can’t prove or disprove that, since they don’t have any source code to look at, as the code was never published in any way. Have fun paying Microsoft to use it for the next 10 years. Unless of course SCOTUS takes care of that for you . . .

  62. Winston said:

    “The fundamental complaint that most detractors of software patents seem to have, though, is that some issued software patent making news should have failed under a 102 or 103 analysis. That’s more an issue of rigor in examination than patentable subject matter.”

    Only in cases where the courts quickly overturned the patent based on 102 or 103. In other cases it’s more an issue of software makers never releasing their source code, ever.

    Oh, you say you made a disc containing a program with a gui help menu for sudo years before Microsoft filed for the patent on it? Too bad the patent office and the courts can’t prove or disprove that, since they don’t have any source code to look at, as the code was never published in any way. Have fun paying Microsoft to use it for the next 10 years. Unless of course SCOTUS takes care of that for you . . .

  63. With the revelations that Microsoft has been trying to keep innovation down by patenting something after someone else brought it out

    Cite, please?

    Some say it started with this article: link to jonathanischwartz.wordpress.com

    I disagree, that one shows that patents were used against other patent threats.

    The first credible article I saw was this one: link to edwardtufte.com

    It lead me to search back, and I came across numerous instances, including: link to eweek.com

    As such, I would suggest looking here for information: link to w2.eff.org

    Realistically, what has brought this debate about is SCO, formerly Caldera.

    When they went about claiming code, copyrights, and patents they didn’t own, focus was set on them

    In the only litigation I’m aware of, SCO claimed ownership of a copyright, not a patent.

    Actually, they claimed everything dating back to 1969 including patents and copyrights by lumping it under Intellectual Property.

  64. investors would generally prefer for a hedge fund to disclose a risky derivatives scheme in a patent application than to keep it a trade secret.’

    LOLOLOLOLOLOLOL.

  65. I don’t follow that logic at all. Please explain how the commercial success of a format makes the patents on that format invalid under 101.

    That’s the position advanced by Ciaran. As for how to get there logically…. who knows?

  66. NWPA I’ll bet that movie would have been quite different if there had been an opportunity to refute the nonsense.

    You’ve got an opportunity to refute it now, doofus.

  67. “all the (US) patents are invalid under 101 because the format has become so successful.”

    I don’t follow that logic at all. Please explain how the commercial success of a format makes the patents on that format invalid under 101.

  68. “Realistically, what has brought this debate about is SCO, formerly Caldera. When they went about claiming…patents they didn’t own”

    As far as I can tell SCO never made any claims of patent infringement or any controversial claims of ownership of patents, although IBM did allege patent infringement in its counter-claims against SCO.

  69. With the revelations that Microsoft has been trying to keep innovation down by patenting something after someone else brought it out

    Cite, please?

    Realistically, what has brought this debate about is SCO, formerly Caldera.

    When they went about claiming code, copyrights, and patents they didn’t own, focus was set on them

    In the only litigation I’m aware of, SCO claimed ownership of a copyright, not a patent.

    All these various objections, all of these differing points, with many complaining the film didn’t show both sides.

    Teach the controversy?

    link to controversy.wearscience.com

  70. Matt,

    You clearly have no idea what you are talking about.

    You might want to look up all of the corn patents. Likewise, software patents and design patents are not about to be “invalidated” ….whatever that means.

  71. Can you imagine if corn was patented?

    If corn didn’t exist and one company invented it, I’d be more than happy to give them 20 years to extract from it whatever profit they could.

    that would mean only one company can make corn products. Sound good for business? probably not.

    Not bug. Feature.

  72. Strange.

    All these various objections, all of these differing points, with many complaining the film didn’t show both sides. At the same time, the persons complaining about that are the ones pushing for disregarding the people who want software patents removed.

    Lets face facts. There are two sides, or more, to this issue. Simplistically, there are those who want patents and those that don’t. Realistically, what has brought this debate about is SCO, formerly Caldera.

    When they went about claiming code, copyrights, and patents they didn’t own, focus was set on them. When patent trolls came up (Those who buy patents only to try litigate them as a business), more focus on the patent standard was set. With the revelations that Microsoft has been trying to keep innovation down by patenting something after someone else brought it out, at least from various reports in industry, we saw the rise of groups like pubpat, which searches for previous art and gathers patents for public use.

    Then we saw Microsoft take the other side, when the i4i incident came to court, claiming that the people who wrote the code, were selling a package and utility, and from whom they stole the code, were patent trolls.

    There is good and bad on both sides of the aisle, and if people want software patents to survive, given the vast pressure to eliminate them thanks to unscrupulous individuals in companies like SCO, then the whole patent regime will have to come under scrutiny and be revised.

    Lets face it, the problems start with the ease of filing a patent, despite prior art, and with the companies who are set up to litigate what someone else developed because they could get those patents. Toss in a company like SCO, who tried to litigate without owning the patents to litigate with, and companies like Microsoft who want to play both sides when it suits them, and the system, as it is, will not survive another decade.

    Don’t complain about the film. Fund a version that really shows all sides, and then start working on a solution. Work together on this and perhaps meet somewhere where all sides can agree it works.

    Otherwise, let the broken system speak for itself and don’t criticize a movie that at least has opened the debate to a larger audience.

  73. clarification ciaran: you can’t argue with these people. They don’t understand.

    Put a bunch of patent lawyers in a room and of course they’re going to think things are patentable. Who woulda thought!

  74. hahaha you pro patent folks crack me up.

    I love how you mix up software patenting with copyright.

    Maybe next time you realize this, ciaran, you’ll be someone who’s a little smarter.

    design patents and software patents are both thankfully about to be invalidated. Meanwhile, copyright still exists. Nothing’s stopping you from suing if someone copies your exact design. However, nothing is inventive if you patent a design that a hundred other people could duplicate. This model works out just fine in everyday products. Can you imagine if corn was patented? that would mean only one company can make corn products. Sound good for business? probably not. If a bunch of companies produce their own corn and end up with the same or a very similar product? Copyright/trademark laws might come into place, but appropriately patent law would not.

  75. win back the freedom to make a website

    Tell me more about this “freedom”. I’m still not sure I understand why anybody should have this freedom (a quick perusal of existing websites only reinforces my position), or why this freedom is more important than someone else’s property rights, granted (assuming they are) by act of Congress.

    Also, you still haven’t answered my question about how “most of harms of software patents come without litigation”. It sounds to me like your behavior is largely conditioned by the fear of litigation and the unwillingness to pay a royalty to avoid litigation.

  76. “Let’s imagine that was true. Will you by the legal fees I need to get around the 900 patents that cover the h.264 video format?”

    Were you involved in the development of this technology? If not, why do you believe you have a right to leech off of somebody else’s work?

    Also, if 900 patents cover the h.264 video format, then it must be pretty complicated and took a great amount of time to engineer. This technology didn’t just magically appear. People spent real time and real money to develop it. Why should you have any right to this technology?

    The reason why your arguments will fail is that ultimately Congress will have the last say as to what is patentable and what is not, and you do not present a very persuasive argument.

    Your argument: Programmers are worried about infringing somebody else’s patent when the write software. As such, there should be no patents on software. Instead, anybody should be free to use any technology.

    The opposing argument: My small business spent 1 year developing this technology and now these freeloaders want access to it for free. What they are advocating is similar to what communists believe – everything belongs to the commune (or “commons”) and there is no ownership over intellectual property. Instead, they want to profit off of my sweat.

    Your argument will never fly with the average Joe because the average Joe recognizes that people should be rewarded (e.g., with a patent) for their work and that it is wrong for other people to take their work without compensation.

  77. “Exactly. Microsoft’s innovative work, getting from zero to massive, was done before they owned patents. In 1995, they still only had 5 patents, and no one else was really litigating either.”

    So you admit that the lack of software patents enabled Microsoft to achieve a dominant position in the software industry? That hardly seems like an argument against software patents.

    “You say that GNU/Linux just copied Unix, well, look at Firefox and OpenOffice.org. They developed tabbed browsing and compressed-xml document formats.”

    Firefox didn’t invent tabbed browsing. The first tabbed browser was BookLink InternetWorks in 1994. The first modern browser to offer tabs was NetCaptor, a proprietary shell for the Internet Explorer rendering engine, which offered tabs in 1997. Opera, another closed-source browser, offered tabs in 2000. Firefox (called Phoenix at the time) was actually quite late to the tabbed browsing game, first offering tabs in late 2002.

  78. All I’m suggesting is that, like the way patents don’t restrict people who write music or literature, patents also shouldn’t restrict people who write software.

    Write software that lacks utility and you won’t be bothered by patents.

  79. Got to go back to work. Go and invent a software company with all your great and wonderful energy Ciaren. I wish you well.

  80. @FormerDeveloper: All I’m suggesting is that, like the way patents don’t restrict people who write music or literature, patents also shouldn’t restrict people who write software.

    Your unrelated thoughts about long walks on the beach is surely just proof that you’ve no concrete argument against the substance of my point.

    @IANAE: I don’t have the spare time to go applying for patents just to try to win back the freedom to make a website. And I’m not going to pour the price of a patent down the drain, and the other patent holders would know that I don’t have the personal finances to launch litigation anyway. Even if the 900 patents could be gotten down to 50 (even just 1), and it’s too much hassle for someone who just wants to write a website.

    @NWPA: You say that GNU/Linux just copied Unix, well, look at Firefox and OpenOffice.org. They developed tabbed browsing and compressed-xml document formats. What’re the big innovations in Internet Explorer 9 and Word 2009? Ooh, tabs and compressed-xml.

  81. “can’t we all just walk barefoot together on the beach and share all of this wonderful stuff together living free in peace and harmony forever and ever?”

    Until someone needs a toilet.

  82. Collectivist arguments never work…

    O’Riordan’s argument like those of most collectivists, is essentially, “can’t we all just walk barefoot together on the beach and share all of this wonderful stuff together living free in peace and harmony forever and ever?”

    The short answer: “No, we can’t”

  83. The companies I normally work with start like this:

    Inventor: I have an idea for a company/product/improvement. Can you take a look and see if it is worth writing a patent for?

    Me: Sure.

    OR

    Company: We’d like to do X. Can you look and see if there are patents that cover that? What is the probability that I am going to get sued?

    Not: I’d like to take someone else’s technology and pretend it wasn’t invented and then re-write it after a good night of drinking so I can say I don’t remember anything.

  84. Will you by the legal fees I need to get around the 900 patents that cover the h.264 video format?

    If it’s so easy to get a patent on that format that 29 companies have them, get some of your own patents and offer up some cross-licenses.

    Or you could potentially save a chunk of legal fees by noticing that those hundreds of patents are in over 50 countries, and many of the US ones probably have identical specs, so there’s probably a significant amount of duplication in the analysis.

    Or you could use one of the many existing players that are presumably made available by the hundreds of companies that have already licensed the patents.

    The deep-discount approach, of course, is to say that all the (US) patents are invalid under 101 because the format has become so successful.

  85. @TINLA IANYL: Exactly. Microsoft’s innovative work, getting from zero to massive, was done before they owned patents. In 1995, they still only had 5 patents, and no one else was really litigating either. The new mountain of patents (and the new patent-thick environment) have only helped them in the phase of entrenching their position.

    link to en.swpat.org

  86. >>In fact what I hear more often is that any >>decent patent attorney can tell you how to >>design around any software patent.

    Let’s not quote me out of context. So, you want to use a standard someone else came up with? How do you want to use their standard?

  87. They just made an OS that worked basically the same way with no consequences. They also allegedly “stole” the mouse from Xerox.

    I believe Apple also “borrowed” extensively from Xerox PARC.

  88. “Without software patents, software companies could successful in their own right.”

    Much in the way that Microsoft became successful in its own right without software patents (Microsoft’s first software patent was filed in April, 1989, by which time it had released Office and was on the verge of releasing Windows 3.0). Microsoft was free in its early years to copy others and develop what became the “embrace, extend, extinguish” strategy.

    With software patents, however, that strategy fails from the beginning. You can’t embrace or extend a patented technology without a license.

    Indeed, Microsoft’s biggest competitors in various markets (Nintendo, Sony, Google, and Apple) all rely heavily on software patents to prevent appropriation of their key technologies by competitors like Microsoft.

    Without patents on PageRank, AdWords, MapReduce, and other key technologies, Google would probably have lost out to Microsoft in the internet search market. Without design patents on Google’s look and feel, Microsoft could have copied Google’s successful minimalist design.

    Suffice to say that the argument that a lack of software patents would lead to an explosion of innovation and commercial success is definitely debatable.

  89. Am I anti-patent? No, I already said you can have your car pedal patents.

    Did patents help Microsoft? Maybe they did. Being a monopoly is profitable for that one company and it hurts everyone else.

    You must be new to the software game. If the documentaries and TV movies are accurate, Microsoft grew up in a software patentless playground, doing basically what NWPA said at 1:04. IIRC, MS allegedly “stole” Windows from Apple. They just made an OS that worked basically the same way with no consequences. They also allegedly “stole” the mouse from Xerox. Only after MS got big did software patents become possible, and then they started using them as one tool to try and protect their market share. Too bad for Apple, Xerox, and others (allegedly) that software patent protection wasn’t available sooner.

    Now go invent something.

  90. So at the time the video player or word processor in question was invented it was patentable subject matter, but after it achieved commercial success it became unpatentable subject matter?

    Yup. Secondary considerations.

    Who had “two hours” in the pool?

  91. And, Ciaran O’Riordan, I work with real companies that get real money that develop real software and real products.

    I don’t know what world you live in. Linus Turval copied Unix and copied the delopment model of nethack. No wonder his followers are complaining about patents.

  92. * Writing a video player that can play the videos that are commonly found online
    * Writing a word processor that can read, edit, and save documents in the common formats that people use

    So at the time the video player or word processor in question was invented it was patentable subject matter, but after it achieved commercial success it became unpatentable subject matter?

  93. In all the CLE programs I’ve attended in recent years, I can’t think of even one where these issues were up for debate, i.e., where the program included speakers willing to make any case against business method, software, or gene patents.

    Sounds like a legitimate form of advocacy to me. All of the people in that room make more money with software patents than without.

    You don’t see a lot of church discussion groups on evolution either.

  94. The fact is that the software developers that complain are suffering from George Harrison syndrome.

  95. >>when they work with the threat that with >>success comes litigation

    I work with real software companies. Start-ups that need the patents to get funding and real companies that have $$ in sales. I don’t see the real companies having big problems with patents. The stuff you describe sounds like companies or people wanting to reproduce old stuff. Wait 20 years and you can have it.

    In fact what I hear more often is that any decent patent attorney can tell you how to design around any software patent.

  96. “I’ll bet that movie would have been quite different if there had been an opportunity to refute the nonsense. ”

    The movie is a legitimate form of advocacy, and one shouldn’t expect the advocate for one side of an issue to give equal time to the other side as well. On the other hand, things ought to be more intellectually ambitious at meetings and talks pitched towards patent practitioners, right? In all the CLE programs I’ve attended in recent years, I can’t think of even one where these issues were up for debate, i.e., where the program included speakers willing to make any case against business method, software, or gene patents. There is a huge and growing disconnect between the patent world (PTO, Patent Bar, Federal Circuit) and everyone else, and pretending that these issues are not up for debate does no one any good.

  97. NWPA: That was certainly worthless. Next time make a movie where you give both sides of the issue and allow an open debate.

    That’s because this is clearly an advocacy piece, not journalism. The entire point is to convince other people of their viewpoint, not to do fair and balanced reporting.

  98. @NWPA: Yes, I used to work as a software developer. A few years ago, I realised that progress in software now depends more on clearing away patent problems than it depends on what one more programmer to write. (progress as in “benefit to society”, not as in “benefit to Microsoft’s bank balance”)

    No, I never tried to sell a company to Microsoft. (I was a developer, not a company owner.) A buy-out is maybe the best a company can hope for when they work with the threat that with success comes litigation. Without software patents, software companies could successful in their own right.

    @FormerDeveloper: I’ll hasard a guess that you’re no fan of the CAFC’s machine-or-transformation definition of what should and shouldn’t be patentable. And since you’re such a reasonable guy, I’ll assume your not asking me, off the cuff, to better what the CAFC can do with a few weeks and 132 pages. But I can give you a list of things that shouldn’t carry the risk of patent litigation:

    * Laying out information on a web page
    * Writing a video player that can play the videos that are commonly found online
    * Writing a word processor that can read, edit, and save documents in the common formats that people use

    Stuff that can be patented:

    * Car brake pedals
    * Ways of curing rubber
    * Anti-lock braking systems for cars

  99. “My car drives so smoothly with its software gearbox. I can barely feel the gears shifting at all.”

    I think the point is that anything that can be done in software can be done in hardware, though not necessarily the other way ’round.

  100. Anyone that works in real products will tell you that whether it is in software or hardware is all a matter of design choice.

    My car drives so smoothly with its software gearbox. I can barely feel the gears shifting at all.

  101. In all the pages of the “End Software Patents” propaganda site, I do not see one definition of what a software patent is…

    The site prominently links to a wiki, which includes this definition.

    What a huge load of hogwash.

    Seems to be a lot of that going around.

  102. >>What a huge load of hogwash.

    The problem with the definition part is that the reality is that to end software patents you end all EE patents too. Anyone that works in real products will tell you that whether it is in software or hardware is all a matter of design choice.

  103. In all the pages of the “End Software Patents” propaganda site, I do not see one definition of what a software patent is…

    What a huge load of hogwash.

  104. Being a monopoly is profitable for that one company and it hurts everyone else.

    That’s not a bug, it’s a feature.

  105. If patents shine the light, then why do so many anti-software people claim that patents infringe on “the commons”?

    Aren’t “the commons” located in the light?

  106. “For example, if bankers are motivated to file patents on “how to screw people out of their money”, then maybe the public in general will become more informed.”

    Indeed, that very point was made in the amicus brief filed by Dr. Ananda Chakrabarty in the Bilski case:

    ‘Patents on business and science methods require disclosure of valuable information about risky undertakings, enabling patients, doctors, investors, and investment advisors to make more informed decisions. For example, investors would generally prefer for a hedge fund to disclose a risky derivatives scheme in a patent application than to keep it a trade secret.’

    /media/docs/2009/08/08-964-chakrabarty.pdf

    (Full disclosure: I was involved in the preparation of that brief.)

  107. Actually, Jules, the most I’ve ever learned about banking is from working on patent applications for banks. The patent applications do expose how banks take advantage of people.

    Shine the light.

  108. “When you can’t respond to the substance, ”

    If there was some substance I’d respond to it.

  109. Ciaran O’Riordan: Have you ever worked in a software company? Tried to sell a company to Microsoft?

    You want to know how realty works:

    Start-up: want to buy us?
    Microsoft: do you have patents? No, we will just hire some people in India to exactly duplicate your work. Bye.

  110. Well, I was wrong with my Bilski prediction that it would come out today. Even more interesting, however, is that I hope the opinion is timed right, and picked up by the media because it could have an impact on the banking industry. For example, if bankers are motivated to file patents on “how to screw people out of their money”, then maybe the public in general will become more informed.

  111. Sorry to offend your delicate sensibilities, but your attacks against “Software Patents” are loosely normative, completely devoid of solid legal foundation or argument, and essentially ad hominem. Can you please explain what, exactly, a “Software Patent” is?

    I didn’t think so.

  112. “Unfortunately, those distributors could either face litigation in the future for past damages”

    Yet there is an extremely persuasive case to be made that those open source projects will never be the subject of litigation. Patents may be selectively enforced, and patentees often allow low-value infringement.

    The open, distributed nature of open source development means that litigation would have to be virtually world-wide to be effective; attempting to sue in only a few countries would simply push development and hosting elsewhere. And of course the h.264 patent pool doesn’t have patents in every country or even every developed country. In the US is quite possible that a court would refuse to enjoin the projects and damages would be minimal.

    Suing end users is a complete non-starter from a cost-benefit point of view as the costs would be enormous and the damages nonexistent. Additionally, effective litigation would require the assent of all the parties to the h.264 patent pool because any patentee that didn’t approve would be less likely to participate in patent pooling in the future. Furthermore, the whole thing would be a PR nightmare that would push hardware and software companies to free and open formats.

    “or they could become dependent on that format and find it very difficult to move away when MPEG-LA changes the licence terms.”

    Why would an open source video player project become dependent upon the h.264 format or care if MPEG-LA changes the license terms? Such projects support dozens of formats and don’t have a license right now. Neither a shift in the popularity of a format nor a change in the license terms would have any impact on free and open source video players.

    Despite the claims of doom and gloom that have been made for a decade or more, the much-vaunted “Open Source Patent Litigation Apocalypse” just isn’t going to happen.

  113. You know what I find interesting:

    I argued with Richard Stallman in 1985 whether or not software should be non-proprietary or not. So before patents he argued that software from companies should be free to share. At least how the software works. Back in 1985 everything was a secret. There was the universities that churned out great books–really great books and a few journals that were good. Everything else was kept secret. You could go and interview for a job and they wouldn’t tell you how the software worked or sometimes even what they were doing.

    Patents shone light on the world and brought all the how it works out in the open. Now software isn’t keep secret. Now they want to end patents and bring it back in the dark.

  114. “I’ll bet that movie would have been quite different if there had been an opportunity to refute the nonsense. ”

    You know you always have an opportunity on here NWPA, just like last time you wrote that nonsensical “in defense” article.

  115. Am I anti-patent? No, I already said you can have your car pedal patents.

    Did patents help Microsoft? Maybe they did. Being a monopoly is profitable for that one company and it hurts everyone else.

    Thanks for all the ad hominem replies. When you can’t respond to the substance, I guess ad hominems are to be expected. Here’s a list of studies showing that software patents are bad for the economy or for innovation:

    link to en.swpat.org

  116. The good news for all these poor, oppressed individuals, tiny companies, and non-software companies is that there’s pretty much no business case for the patentee to sue them.

    The argument I’ve heard from “programmers” is not that they’re afraid to get sued presently, but that they’re afraid to get sued should the code they write hit the jackpot and become wildly successful. This is akin to not wanting to get a job out of fear of having to pay taxes. Essentially, it’s an excuse to be lazy and not try to innovate. If fear of some patent which may or may not exist that they’ve never read prevents them from working, they were unlikely to work in the first place. They likely also refuse to do chores around the house out of fear that fixing the sink or vacuuming the rug may infringe a patent.

    As for the compatibility argument, that’s an issue with non-software patents as well. From plugs to hoses to fasteners, there’s a world devices whose interoperability and usefulness were limited for a time during which their inventors enjoyed patent protection. I fail to see what makes software a special case in this respect.

    The fundamental complaint that most detractors of software patents seem to have, though, is that some issued software patent making news should have failed under a 102 or 103 analysis. That’s more an issue of rigor in examination than patentable subject matter.

  117. I’m confused. Is the principle objection to software patents per se, or rather the abundance of overly broad and improperly allowed software patents?

  118. O’Riordan, you’re kind of like an anti-patent “troll.” You appear to be nothing more than a parasite that feeds off of the free floating fears of those who write a little code and don’t understand much about the law.

    Seems you, like the others in the movie, simply enjoy supporting a “cause” that gets you a little time in the limelight in an otherwise boring profession. Are you benefiting from a corporate sponsorship? Or are you independent?

  119. Ciaran O’Riordan: do you have a list of software that has been helped by information processing method patents?

    Why did Microsoft hire 1,000′s of researchers?

    Why are many “software” start-ups on hold right now?

  120. @James: Shipping h.264 support is seen as crucial. Unfortunately, those distributors could either face litigation in the future for past damages, or they could become dependent on that format and find it very difficult to move away when MPEG-LA changes the licence terms.

    For a list of examples of projects harmed by software patents, see:

    link to en.swpat.org

  121. >>In fact

    I’ll bet that movie would have been quite different if there had been an opportunity to refute the nonsense.

  122. When was the last time you wrote some useful code O’Riordan? I suspect its been a long time since you did anything useful…

  123. “No one has to sue the developers of video software in order to prevent them from putting their time into being able to read MPEG H.264.”

    In fact there are several free and open source video players that handle h.264.

    link to en.wikipedia.org

    “And no one has to sue Red Hat before they decide they can’t ship mp3 support in their GNU/Linux.”

    That’s Red Hat’s decision. Many other distributions have no problem including mp3 playback software and have not suffered any consequences for doing so for years. Indeed, Red Hat included xmms at least as recently as version 8.

  124. somecode()

    THAT is what I’m talking about. Now, after having done that, have you been overwhelmed by a disabling fear that you may be “liable to be sued?”

    I didn’t think so.

  125. “Non-sequitur of the Month.”

    Only in your mind Mooney.

    The point is that here are a bunch of programmers worried about some amorphous threat called “Software Patents” that, according to the title of the movie above, they could be “liable to be sued for” when they could be liable to be sued for much more serious matters like writing crappy code that kills people. But I wouldn’t expect you to be capable of grasping that nuance.

    I promise Ciaran O’Riordan that as soon as I figure out what a “Software Patent” is, I will join your call to ban it. I suspect the villainous “Software Patent” will be found right next to “The Rich.”

  126. Yes, like a method of solving a problem in your mind.

    I was thinking more along the lines of a software implementation of a method that would ordinarily be patentable, like maybe a novel method for operating that gearbox from the other thread. So I guess you’d have to claim parts of the gearbox too, but maybe that’s still scary to the poor, oppressed non-software company.

  127. NWPA you believe no good comes from information processing method patents?

    Because nobody will write information processing software without patents! It’s a proven fact, and NWPA is going to talk all about it in his upcoming movie, SOFTWARE PATENTS ARE TEH AWSEOME!

  128. a software-implemented patentable method is just as patentable as any other method

    Yes, like a method of solving a problem in your mind. Oh wait …

  129. You might also ask yourself what good has Linux done? What is new about Linux?

    And the model of development was not new by the way. Linus Turval did not innovate anything as far as can see.

  130. NWPA That was certainly worthless. Next time make a movie where you give both sides of the issue and allow an open debate.

    Look, kids, it’s the Movie Police, telling the director what to do. That’s pretty funny.

  131. Most of harms of software patents come without litigation.

    What harms of software patents come without litigation? Are you counting threats of litigation and fear of litigation in that category?

    (About writing a book: no, I didn’t mean anyone can say whatever they like.)

    Great. Same goes for code.

  132. public MediaStream filterContent(MediaStream content)
    {
    if (content.getFormat() == MEDIA_FORMAT_OGV &&
    content.getMetadata().synthesizeQuery(“Ciaran NEAR *Riordan”))
    {
    return null;
    }
    return content;
    }

  133. >Most of harms of software patents come without >litigation. Other harms do come via litigation, >like trolls attacking non-software companies >because of tabs or images in a website.

    And you believe no good comes from information processing method patents?

  134. IANAE: …no business case for the patentee to sue them

    Litigation isn’t the main problem. No one had to sue the W3C in order for the HTML5 standard to remove all mentions of recommending a video format. That hurts everyone.

    No one has to sue the developers of video software in order to prevent them from putting their time into being able to read MPEG H.264. And no one has to sue Red Hat before they decide they can’t ship mp3 support in their GNU/Linux. End users of softwares (that’s pretty much everyone and every company) pay the cost through frustration, incompatibility, pointless lack of useful features, and software products being taken off the market.

    Most of harms of software patents come without litigation. Other harms do come via litigation, like trolls attacking non-software companies because of tabs or images in a website.

    (About writing a book: no, I didn’t mean anyone can say whatever they like.)

  135. Lumping patent risk onto authors, and asking them to do reasonable patent searching etc. would be ludicrous.

    Authors aren’t the problem. It’s not the same for music, because music is only protected by copyright, and copyright generally only protects copying. If you write original music, you can safely assume you won’t infringe anything.

    You’ll note from the other thread that I’m not a huge fan of software patents as a genre. Even so, a software-implemented patentable method is just as patentable as any other method, and anyone who is developing a useful thing has the same “freedom” of making sure they don’t run afoul of someone else’s “freedom” to their issued patent.

    The good news for all these poor, oppressed individuals, tiny companies, and non-software companies is that there’s pretty much no business case for the patentee to sue them.

    It’s like writing a book. Everyone has the freedom to do so, it’s a lot of work, it can be technical, most people won’t bother ever doing it, but everyone agrees that everyone should have that freedom.

    I’m not sure I understand this “freedom to write a book”. Are you saying that anybody can write anything they want in a book, and nobody can ever sue them over the contents?

  136. That was certainly worthless. Next time make a movie where you give both sides of the issue and allow an open debate.

  137. How writing some code that will ensure that the accelerator pedal input on my auto wont be improperly processed and cause my car to suddenly accelerate and careen out of control.

    Non-sequitur of the Month.

  138. @FormerDeveloper: Car brakes, controlled by humans+mechanics or controlled by computers, can be patentable. That’s no problem for us, those things are made by companies that have cash and a legal department.

    Similar example: ABS link to en.swpat.org

    @IANAE: “useful” isn’t so clear. I’d say “done by more people”, or more people “participate in the activity”. It’s like writing a book. Everyone has the freedom to do so, it’s a lot of work, it can be technical, most people won’t bother ever doing it, but everyone agrees that everyone should have that freedom.

    Lumping patent risk onto authors, and asking them to do reasonable patent searching etc. would be ludicrous. Same for music, same for software.

  139. Software is made by individuals, tiny companies, non-software companies (who just write something to get their real work done). These people can’t be just told “too bad, deal”.

    I see. It’s useful for more people, so it shouldn’t be patentable.

    How long till we see “lack of commercial success” as a secondary consideration under 101?

  140. How writing some code that will ensure that the accelerator pedal input on my auto wont be improperly processed and cause my car to suddenly accelerate and careen out of control.

    Are the “programmers” worried about their liability to be sued for THAT fiasco? They should be.

    Stop worrying about patents “programmers” and get back to work. And this time try to write some decent code that doesn’t kill people.

  141. Ciaran O-Riordan again. Sheesh.

    It seems to me that these “programmers” don’t have enough to do and are trying to create a cottage industry around complaining about the patent system.

    Go write some code!

  142. @broje TINLA IANYL: The key difference is that cars are made by big companies with money and a legal team. You can tell them to go deal with it like all the other regulatory requirements of that field.

    Software is made by individuals, tiny companies, non-software companies (who just write something to get their real work done). These people can’t be just told “too bad, deal”.

    And the hobbyists can’t be dismissed either – they wrote the GNU/Linux operating system (the big companies jumped in when it was already working).

  143. Dr. Robert Shafer, associate professor of medicine at Stanford University, who created a free, publicly available HIV Drug Resistance Database, praised the film for challenging the interest groups which currently profit from the patent system.

    “There is a hardcore group of special interests who profit from the system the way it is now – the Court of Appeals of the Federal Circuit, patent examiners who essentially receive credit for their work only when they issue or uphold patents, and the patent bar which benefits from cross-licensing and patent litigation regardless of how ridiculous a patent is,”

    link to eweekeurope.co.uk

  144. Try and make an automobile that complies with safety regulations, that uses the latest technology, and that is competitive in the marketplace, and see if you can do that without infringing some patents.

    Programmers need to grow up, become less risk averse, and develop some defensive patent portfolios, or work for companies that do develop such portfolios.

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