How Many New And Non-Obvious Software Ideas Are There?

from the seriously dept

Thu, Sep 21st 2006 3:03pm — Mike Masnick

As Europeans are getting ready to debate the idea of software patents again, it's worth noting that, back here in the US, we've already surpassed the yearly record for software patents and it's expected that over 40,000 software patents will be granted in the calendar year 2006. Setting the record isn't that surprising, given that the emphasis on patenting software concepts is a relatively recent phenomenon. However, no matter what you think of software patents in general, is there anyone who actually believes that 40,000 different, unique and non-obvious software ideas came about in a single year? These would be ideas that it's unlikely many others could possibly come up with. If the purpose of the patent system is to encourage the creation of new concepts that otherwise would never see the light of day, does anyone honestly believe that those 40,000 concepts would never show up in a software product if the patent system didn't exist? This is a serious question, especially as our economy relies increasingly on software. If we're locking up 40,000 different software concepts each year, are we actually reducing the ability to actively make use of that software to improve our productivity and grow the economy?

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mmrtnt (profile), 21 Sep 2006 @ 3:19pm

Weapons of Mass Disincentive
Interesting.

Over at slashdot they've got a story about how China and the US are in an internet "Space Race". The Chinese aim to out-innovate the US.

With the Patent Office happily locking up innovation to the tune of 800 ideas a day, it seems like hardly a race-type event. More like a smackdown.

MjM
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rijit (profile), 21 Sep 2006 @ 3:45pm

"If we're locking up 40,000 different software concepts each year, are we actually reducing the ability to actively make use of that software to improve our productivity and grow the economy?"

I would say not really, most of the patents are more than likely held by trolls who will not stop anyone from using their patent, in fact they will stay real quiet. Until, that is, somoene comes up with something new unkowingly built on thier patent and start making money, then they will sue for millions.
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Joe Smith, 21 Sep 2006 @ 4:14pm

Cost benefit
The burden of those patents on business in terms of cost and risk is so huge that it is hard to imagine any plausible argument that software patents are economically beneficial.

The software industry had its most innovative years before software became patentable. Software patents are unnecessary and should be outlawed.
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Sanguine Dream, 21 Sep 2006 @ 6:41pm

40,000 this year eh?
Damn with so many "unique" ideas we should have some flying cars, smart houses, and some straight up R2-D2 shit going on! I agree with Joe Smith. Before it was patentable people made software because it would benefit users and ultimately humanity ( or at least some demographic of it ). Once it became patentable people started to make software for the sole purpose of making money. Although outright outlawing the current system is a little harsh. That would only create a Wild West situation in the software industry. But I would say that it needs to be seriously overhauled.
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A chicken passeth by, 21 Sep 2006 @ 6:51pm

...I'm going to LAUGH. OUT. LOUD... if someone ever patented the "IF", "DO", "FOR" and "WHILE" loops in all languages... absolutely no recursion allowed in future programming projects! Your code base will take up 90% of the program, which will have to come in a 15GB solid state disk if it's graphic intensive!

(On hindsight... why else do programs get bigger and more bloated every year? Maybe because... they're not allowed to use already patented optimization schemes?
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English Pro, 21 Sep 2006 @ 7:40pm

Easy fix
Patent the software, not the concept. Write the code and send it to the patent office. They fire it up and if it works, then great! If not, "No patent for you!"
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John, 21 Sep 2006 @ 7:53pm

trolling
Trolling should be illegal. Patents should require proof of concept after a reasonable period of time. This might stop those that merely patent an idea stritcly gearing up for a lawsuit in 10 years.

This practice is akin to slamming the breaks on your car so the driver behind you pays for your unemployment.
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tracelan, 21 Sep 2006 @ 8:01pm

40,000 innovations a year?
I agree with English Pro. An embodiment of the concept should be required before a patent application can even be submitted. But a better solution is to get rid of software patents all together. The software industry was doing just fine before software was patentable. Of course the patent lawyers will never let that happen. They are making way to much money filing for silly patents.
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yardape6, 21 Sep 2006 @ 10:34pm

Trolling
The problem is legally defining trolls. Until you can do that, there is no sense in proposing any kind of legislation. It's probable that we won't solve this issue before it begins to have an actual impact on the economy.

Unfortunately, too many people are making too much money. Politicians would rather remain ignorant of the issue so long as they get that donation. Greed on this large of a scale is death to a consumer economy.
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Enrico Suarve, 22 Sep 2006 @ 12:30am

Re: Trolling
Patent trolling is in my the single largest barrier to innovation in the software industry and prevents legitimate individuals and companies creating new products, benefiting the consumer and the world in general

Remember that amazing product from Eolas? (no I thought not) however they are the company which managed to force Microsoft to neuter ActiveX and stop it performing one of its most excellent features - the ability to run unprompted in an internet explorer browser, so the like of macromedias flash object would show those lovely graphics on first opening a site

The fact that they went after Microsoft but not Firefox, Opera or any other browser which use the same technology clearly shows they did it purely for the cash, and not to protect their product. End result, users in the world with internet explorer can no longer benefit from this feature. In the case in point it' not even clear if they had the legal right to a patent anyhow as there were claims that another browser already used this idea before the patent was filed (prior-art)

Although I think in some cases the trademark legislation in the US is a little laughable (you must actively pursue any potential breaches etc to keep it). Which led to Google having to get all funny about people referencing 'Googling' recently - not a great move and one brought about more than likely by some lawyer who was worried that without taking this ridiculous action they'd lose their trademark, perhaps the same thing could be applied to the software patent list?

I.e. they could say you must actively demonstrate usage, revenue or development of a patent to keep it - failing to do so renders it challengeable or even invalid. By doing this a company which actually comes up with ideas, develops or licenses them would be fine, but a troll who comes up with a vague notion then sits back and waits for someone to stray into it would have problems

Maybe not the best way around it but one that leaped to mind...

Either way I think the EU are probably going to be forced onto the patent bandwagon - by not being on it in the same manner as the US they hand over unfair advantage across the water and potentially stifle their own industry. Not a great position, and one bound to cause even more problems globally but I think it may be inevitable to protect their own interests
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yardape6, 22 Sep 2006 @ 6:25am

Re: Re: Trolling
"I.e. they could say you must actively demonstrate usage, revenue or development of a patent to keep it - failing to do so renders it challengeable or even invalid."

While I agree with the statement, its really hard to enforce. The US patent office is having a hard time as it is. They can't seem to keep bogus or overlaping patents from occuring. In its current state the patent office can't be expected to actualy monitor small inventors or companies to make sure they are not trolling.
To actualy fix the issue we need a complete overhaul on the patent system.

While I find it to be an extreme viewpoint, the idea of doing away with the patent system all together seems almost viable. How long before every industry in this country is paralyzed in a patent mine field?
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Enrico Suarve, 23 Sep 2006 @ 2:35am

Re: Re: Re: Trolling
You have a point - the added issue is all the grey areas which always crop up in law "I change one byte per year so I am actively developing" type of thing

Perhaps the easiest way is to take this and the other idea in this thread and combine them

1) You must have an actual developed idea (maybe not a full product but at least a working prototype)
2) You must pursue it

It would at least cut down on the ability to troll and I would say it is not a patent office responsibility to review it but up to a challenger to prompt a review

Again just thoughts - much as I think the patent office has managed to turn the whole software patent thing into a farce in the US, I would prefer to have it overhauled than removed

I worry that without anything the little guy (who is often more innovative due to not having to stick to corporate policies) has no way of getting rewarded for innovation - not that the present system helps with this much

Patents do exist in other areas of industry and they do help people protect their investments (sometimes time, sometimes money, often both). I think the main problem with the software patenting system at present is it allows vague notions to be patented rather than developed ideas and that the people policing it perhaps don't have the knowledge capable of knowing what it is that they are patenting?

Dunno - again just thoughts and I'm aware more informed people than me have gone over this ground before but a civilised society surely must be able to come up with some way of protecting developers without actually completely stifling creativity ?
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Steve, 13 Dec 2008 @ 1:01pm

Re: loss of trademark
Loss of a trademark due to allowing common use is not new, and not trivial. Thermos used to be a trademark, now "thermos bottle" is a generic term because Thermos let it happen, and there are many, many more examples (aspirin, cellophane, nylon, escalator, etc.). Sources include www.factmonster.com/spot/trademarks1.html

A troll can't just "come up with a vague notion and sit back and wait for someone to stray into it." The US patent system has lots of problems, but it does require time and expense to document a patentable idea and show that it works--or trolls can just buy patents from companies in trouble or poor inventors.
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