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Software Patents Just As Ridiculous As Literary Patents?

from the indeed dept

Tue, Sep 1st 2009 1:24pm — Mike Masnick

Occasional Techdirt contributor Tim Lee has a great writeup for Cato, detailing why software patents don't make much sense, comparing the idea to what would happen if there were "literary patents":

Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist, on news stories using a particular interview technique, or on legal briefs using a particular style of argumentation. Publishing books, papers, or articles would expose authors to potential liability for patent infringement. To protect themselves, writers would be forced to send their work to a patent lawyer before publication and to re-write passages found to be infringing a literary patent.

Most writers would regard this as an outrageous attack on their freedom. Some people might argue that such patents would promote innovation in the production of literary techniques, but most writers would find that beside the point. It's simply an intolerable burden to expect writers to become experts on the patent system, or to hire someone who is, before communicating their thoughts in written form.

While I think Tim's comparison to "literary patents" is compelling, it's worth noting that there are some who believe that literary plots are, indeed, patentable. There's a guy who's been pushing for a patent on his story plot for years -- though, I half wonder if it's a combination marketing device and attempt to prove how ridiculous patents are. However, well-known patent system commentator Greg Aharonian has made the case that movie scripts should be patentable. So, it's worth noting that, as ridiculous as the concept sounds to many of us, there actually are some people who take the concept of patenting plots or storylines as being reasonable.

Tim's larger point, though, stands. It's that for those who actually work in software development world, patents make no sense. In fact, it's quite troubling that a significant number of people who actually develop software find patents so troublesome, and the defense of such things tends to come more often from lawyers. Tim points out that there's a rather large disconnect there, when so many of the people that software patents are supposed to "protect" are against the concept. Tim suggests that patent lawyers who defend software patents might want to spend more time around actual developers:

I think patent scholars would do well to pay a lot more attention to how the patent system is experienced by individuals who are required to obey it, rather than focusing on abstract doctrinal questions that are of interest only to patent attorneys. We might call this a bottom-up perspective on patent law. I spent the summer developing software for Dancing Mammoth, the company that also hosts this blog. If Dancing Mammoth were really serious about avoiding patent infringement, it probably should have hired a patent lawyer to verify that each line of code I wrote didn't infringe one of the hundreds of thousands of software patents in existence. Obviously, this would be completely impractical, as the patent attorney's fees would likely exceed my own salary, so like most software firms they didn't do that.

Now, I don't know of any patents I infringed, but as a statistical matter it's likely that I infringed some. Fortunately, it's pretty unlikely anyone will sue me or Dancing Mammoth for any infringement we may have committed, because there are other potential targets with much deeper pockets. But that hardly justifies this situation where everyone's a lawbreaker but most people don't get caught. Small firms do get sued for inadvertent software patent infringement. Laws that are virtually impossible to follow are bad laws, regardless of how infrequently they're actually applied.

In the original piece, Tim also points out how software patents (contrary to the claims of some defenders of the system) unfairly tilt the balance of power to big companies -- the ones who can stockpile tons of patents to use as a weapon against infringement suits. It's the small companies who are left exposed. Tim, and many others, hope that the Supreme Court ruling in Bilski will exclude software (and business method) patents, and I would probably cheer on such a ruling as well. However, there is a part of me that worries that drawing a red exclusionary line around certain areas is simply a way to duct-tape over a much bigger problem with the patent system. It may be a good short-term solution, but I'd rather see the entire patent system fixed, rather trying to create special cases for each individual problem.

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Filed Under: literary patents, patents, software patents

33 Comments

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TheStupidOne, 1 Sep 2009 @ 2:06pm

"Greg Aharonian has made the case that movie scripts should be patentable."

Does this mean that someone will own the patent to girl meets boy, boy breaks girls heart, boy realizes he messed up and marries girl?

Because it would be great if no more of those were made
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Anonymous Coward, 1 Sep 2009 @ 2:13pm

Seems like turnitin.com would love literary and software patents.

"Most writers would regard this as an outrageous attack on their freedom." Writers meet turnitin.com.
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Bubba Gump (profile), 1 Sep 2009 @ 2:15pm

Re:
TSO, you are my new hero!
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khstapp, 1 Sep 2009 @ 2:31pm

No Originality in Hollywood
"Movie scripts should be patentable." When was the last time you saw a truly original movies. Prior Art would put 99.99% of script writers and producers out of business because few have ever put together a truly original script/movie plot.
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Dark Helmet (profile), 1 Sep 2009 @ 2:42pm

Re: Re:
Yeah, that definitely had me cracking up. Bravo!
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mike42 (profile), 1 Sep 2009 @ 2:54pm

Coders hate software patents
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mike42 (profile), 1 Sep 2009 @ 3:05pm

Put me down...
...as a developer who hates software patents! Who the heck wants to spend untold hours writing software only to find out some jackass patented the idea, and you now owe them any profits, royalties, your first born child, and you must destroy all copies of the infringing work! And as for "promoting innovation" by "giving a description of the invention by which a person skilled in the craft can reproduce said invention," that is so much horse hockey! The descriptions are only detailed enough to allow maximum lawsuit coverage! The reviewers at the PTO are not remotely skilled enough to assess these patents, and lawyers should in no way have control over innovation.
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DK, 1 Sep 2009 @ 3:20pm

Patents and Copyright
The article has mixed up patents and copyright, the literary work is covered by copyright and a Patent Office would just transfer the application if it was software but covered more by copyright, as software is covered as an original work in the same way as a literary work.

Patents in fact cover ideas and concepts which are not limited by copyright, and the process for gaining a patent undergoes over 2 Levels of scrutiny, searches must be made by the applicant and the correct format of appliction must be applied at all times, usually by a professional Patent Writer.

Copyright is applied to software and original writing at the point of creation, but the work must be then registered at a national copyright office. If Tim wrote his software however without copying and it was his original creation, even if it is identical to a patent or copyright work; he would not infringe either patent or copyright, he just cannot copyright or patent the work he has done because someone else has done it first and registered it. Don't worry Tim.
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nasch (profile), 1 Sep 2009 @ 3:59pm

Re: Patents and Copyright
The article has mixed up patents and copyright,
I think you misunderstand.
- Currently software can be patented
- Literature and other writings cannot
- Both are covered by copyright
- This article is about how bad it would be if patents covered literature, and how it's equally bad that they apply to software
- Copyright is automatic and does not require registration
- Patents are not supposed to cover ideas, only execution (in theory)
- Independent invention is not a defense for patent infringement. If your -whatever- steps on the patent, you can be liable even if you came up with it yourself.
- I don't know about independent creation and copyright, but good luck convincing a judge or jury of that one.
All the above is about US law
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nasch (profile), 1 Sep 2009 @ 4:03pm

Duct-tape?
However, there is a part of me that worries that drawing a red exclusionary line around certain areas is simply a way to duct-tape over a much bigger problem with the patent system.

I don't see the problem with this. The appropriate course of action is to rule that no, you can't patent those (software, business methods, sandwich making techniques, whatever). Ideally the USPTO would never have granted any such patents, but given that they have, and the patents are being enforced, what would you rather see? The courts have to rule one way or the other, they can't just say "hold off until Congress gets around to comprehensive patent reform".
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Mike Masnick (profile), 1 Sep 2009 @ 4:38pm

Re: Patents and Copyright
The article has mixed up patents and copyright

No. It didn't.

the literary work is covered by copyright and a Patent Office would just transfer the application if it was software but covered more by copyright, as software is covered as an original work in the same way as a literary work.

Um. No. That's not how it works. Plenty of software is covered by patents. And the copyright and the patents are entirely separate. Plenty of software is covered by both.

Patents in fact cover ideas and concepts

No, it covers inventions and processes. It most specifically is not supposed to cover ideas or concepts (though many would argue it now dows).

the process for gaining a patent undergoes over 2 Levels of scrutiny, searches must be made by the applicant and the correct format of appliction must be applied at all times, usually by a professional Patent Writer.

Indeed. But so what?

Copyright is applied to software and original writing at the point of creation, but the work must be then registered at a national copyright office.

Well, depending on what you want to do with the copyright. If you want to file for infringement against someone, then yes. But otherwise, you do not "need" to register it.

If Tim wrote his software however without copying and it was his original creation, even if it is identical to a patent or copyright work; he would not infringe either patent or copyright, he just cannot copyright or patent the work he has done because someone else has done it first and registered it. Don't worry Tim.

That is incorrect. True for copyrights, but not for patents. There is no such thing as an independent invention defense for patents. In fact, recent studies have shown that the vast majority of patent infringement lawsuits were on things developed independently.

Though, there should be such a defense. However, you are wrong to suggest there is one already.
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Anonymous Coward, 1 Sep 2009 @ 5:07pm

"Software" can be copyrighted.

"Software" can be patented.

But the meaning of the term "software" as employed in the context of copyrights is not the same meaning as employed in the context of patents. The failure to distinguish between these two meanings leads to endless and needless confusion.
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..., 1 Sep 2009 @ 6:02pm

Re:
End the confusion and declare that software can not be patented.
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alternatives(), 1 Sep 2009 @ 6:43pm

Now don't reject the patent out of hand.
At least patents expire in 17 years.

Unlike Copyright.
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spaceman spiff, 1 Sep 2009 @ 7:06pm

Prior art?
Given that every plot twist possible has already been done, where does that leave patenting movie/book/story plots? One could legitmately argue that since there is ample prior art, none of these could possibly be allowed...
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Anonymous Coward, 1 Sep 2009 @ 10:03pm

Like it or not, at least copyright law has attempted to craft a balance with the First Amendment. The same is certainly not true of patent law. To suggest that something like a plot/theme falls within the scope of Section 101 of our patent laws does in my view raise the spectre of the First Amendment.
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Anonymous Coward, 1 Sep 2009 @ 11:07pm

Software moves faster = shorter term
As both a software engineer and a patent attorney, there is no problem with software patents other than their term. I have worked for a number of startups that came up with clever new ideas that were successfully patented. These patents were, in turn, used to secure financing from investors which was critical to the operation of the company. I've personally benefitted from patentability of software as an entrepreneur and early stage employee, yet never received any threats from patentees. Patents are a huge win from personal experience as an engineer.

My experience as a patent attorney tells me that software is not unique. Medical devices are probably a more crowded art area than software. There are lots of bad software patents, but I don't see a disproportionate number of bad software patents compared to other areas. For some reason software patents get more press. Personal experience says nothing special here, it's the same as other art areas just generates more attention. I've seen medical device and toy patents just as outrageously broad as the Amazon 1-Click, but they never make the news.

The big difference is that software is currently advancing way faster than most other areas. While it takes about seven years to develop a medical device, it takes about six months to fully develop a software idea. Giving a seventeen year patent on a first comer on a six month idea is way out of balance. In addition, seventeen years is an eternity in the software space so it probably does hurt innovation. I would be hugely in favor of a short term for software patents, say four years from issue.
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Eric, 1 Sep 2009 @ 11:33pm

There seems to be confusion as to what is software and what is a patent
The article author does not seem to understand software engineering or software patents. Further, most patents are neither enforced nor particularly valuable so this matters much less than realized. And how to reconcile an algorithm implemented in an FPGA (now its hardware) with a mere "software patent" that does the same thing?
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Eric, 1 Sep 2009 @ 11:44pm

The previous commenter had a good point - software technology changes rapidly enough that the value of most software patents lasts only briefly. But this also tends to negate his argument that a 17 year time frame harms s/w innovation - when confronted with a software patent, most of the time it just means invent something new and move along.

The pace of change is rapid enough that software patents rarely provide long term lasting value - yes, short term, and ideal for seeking funding. But rarely is the value of software patent long term (yes, there are exceptions but for most, the value is not 17 years).

17 years ago, most people were stilling running DOS and Windows 3.x (the first "real" version and buggy as all get out) had been out for a year. 17 years ago, our -486 PC ran at a whopping 33 Mhz! The Internet was still 2 years away from becoming interesting in 1994. Cellular phones were analog bricks installed in cars - and the external antenna on the car was the "Status symbol of the '90s". Fortunately, technology - including software - progressed very rapidly. My point being that the 17 year time frame did not matter - the real world moved rapidly forward.
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Yeebok (profile), 2 Sep 2009 @ 4:06am

Let me know when this passes
I want to patent the first line of VB I write afterwards.

You've gotta wonder though, will that mean you have to get your for each loops cleared with a lawyer ?

I can see some really long variable names in the future..
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Les, 2 Sep 2009 @ 6:29am

Yeah, so? Thats what patents do. They protect inventions.
Imagine the outcry if the courts were to legalize patents on mechanical devices. Suddenly, you could get a "utility patent" on airplane employing a particular kind of wing twist, on mouse traps using a particular itrapping technique, or on music players using a particular style of user interface. Manufacturing transportation vehicles, appliances, or articles would expose manufactures to potential liability for patent infringement. To protect themselves, manufactures would be forced to send their work to a patent lawyer before manufacture and to re-design aspects found to be infringing a utility patent.

Yeah so, whats your point?
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Ryan, 2 Sep 2009 @ 7:12am

Re: Yeah, so? Thats what patents do. They protect inventions.
Mechanical engineering != software engineering. As a mental exercise, come up with a new algorithm and implement it. Now come up with a new wing design on an airplane and implement it. And this ignores that "conventional" patents are already overboard.
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staff1, 2 Sep 2009 @ 8:06am

stop the shilling!!!
According to his bio, Lee has no working knowledge of the patents system. He is certainly not a patent attorney, or even an attorney. This fellow is still a student!

Let him first learn something and get some practical experience then tell us what he has learned. Has the gentlemen been paid by those pushing what they like to call patent reform? They cant find credible authorities to promote their agenda so they have to rely on pseudo authorities.
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Les, 2 Sep 2009 @ 8:12am

Re: Re: Yeah, so? Thats what patents do. They protect inventions.
If you have a point Ryan, you haven't made it. Engineering is Engineering. Why is one form of engineering not worthy of patent protection while another one is?

If you point is that nothing should be patentable, that is another issue.

Is that your position?
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Mike Masnick (profile), 2 Sep 2009 @ 10:10am

Re: stop the shilling!!!
According to his bio, Lee has no working knowledge of the patents system. He is certainly not a patent attorney, or even an attorney. This fellow is still a student!

Er, he actually does have quite a working knowledge of the patent system. While he is a PhD student, he only recently went back after working in the field for many years, and has a programming degree and has done programming work.

I've discussed this with you before, but I'm not sure why you think only patent holders or patent attorneys can discuss the patent system. Normally most people would recognize that such folks are the most biased, since they profit off the system.

Pray tell, since according to your logic, only economists should be able to discuss the economic impact of the patent system, where did you obtain your economics PhD.
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Anonymous Coward, 2 Sep 2009 @ 4:06pm

Re: Re: Re: Yeah, so? Thats what patents do. They protect inventions.
If you have a point Ryan, you haven't made it. Engineering is Engineering. Why is one form of engineering not worthy of patent protection while another one is?

Software Author = Software Engineer
Literary Author = Literary Engineer

Therefore both should should get patent protection. That's what patents do.
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Gene Cavanaugh, 2 Sep 2009 @ 10:27pm

Software patents
Two comments:
1. Software patents are ridiculous, and should never have been allowed (and wouldn't be if we had Campaign Finance Reform, so that politicians were no longer bought).
2. BUT, 20 years is better than infinity - copyright seems to "protect" for at least infinity!
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Gene Cavanaugh, 2 Sep 2009 @ 10:27pm

Software patents
Two comments:
1. Software patents are ridiculous, and should never have been allowed (and wouldn't be if we had Campaign Finance Reform, so that politicians were no longer bought).
2. BUT, 20 years is better than infinity - copyright seems to "protect" for at least infinity!
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Les, 3 Sep 2009 @ 1:29am

Re: Yeah, so? Thats what patents do. They protect inventions.
The only similarity between a "literary engineer" and a "Software engineer" is that they most like both type, or pay someone to type.

But, I've accepted the ridiculous analogy and shown that the key argument of the author is completely applicable to all categories of patentable subject matter.

The Wright Bros. patented a particular kind of "wing twist" that allowed for controlled flight. Yet somehow, with that awful patent blocking others from flying, 50 years later Chuck put the spurs to her and flew faster than sound and just 66 years later or so we landed a man on the moon.

If there were literary patents, we wouldn't get National Treasure right after the Da Vinci Code.

Seems to me that would be a very good thing.
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Giorgio Sironi, 7 Sep 2009 @ 6:19am

This would be hilarious... Movie and literary patterns are recognized and are on wikipedia (Red herring for instance) as "Literary techniques". Patenting them will stop every work in fiction.
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Joe, 7 Sep 2009 @ 1:30pm

The original article made it pretty clear what's different between software and mechanical devices: everybody who writes software creates patentable inventions. I do all the time, if the software patents I've seen are any guide. Writing software is an inventive process, and the cost of getting a patent on an idea is much higher than the cost of inventing it. So is the cost of checking pre-existing patents on the idea you just invented.

This is in contrast to many other fields, such as medical devices or aerospace, where invention is an expensive process involving construction and testing of physical devices.

When the cost of the patent system is higher than the cost of inventing things, that's a good sign that patents are not appropriate for that field.
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Les, 10 Sep 2009 @ 9:49am

If inventing software is so cheap
Why not invent some software to make "checking pre-existing patent on the idea you just invented" cheaper?
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Tom Gallagher, 2 Mar 2011 @ 6:46am

You are Nuts
Everything in this article is wrong!

The mistake many people make is reading the idea of software absent the hardware that makes it work. Most software patent claims are written in "means plus function" style (35 USC �112 �6). As one gifted inventor once told me "the only difference between hardware and software is bandwidth."

When you consider software as a functional description of a process carried out by a machine, rather than prose, it makes perfect sense. To think of software as merely prose is superficial and delusional. Everything written in software could be accomplished by a hardwired system of gates. Thus, "means plus function". Why should a dedicated processing system be granted greater protection than a programmed general processing system?

As for the developers who don't like software patents, they fall into two classes: the large corporations who are annoyed by "patent trolls" and the individual coders who don't understand patents. As to the former, take for example Microsoft. MS doesn't need patents to make a fortune. They do it by dirty dealing, cheating. They regularly get sued for patent infringement and it costs them millions. They would be happy to see software patents disappear.

As for the independent coder, they think that "information should be free". If they were true to their cause they should abhor software copyrights as well. (Actually, given the functional nature of software, a better case can be made against software copyrights than against software patents.)

Taking the independent coder's philosophy to its logical conclusion, no written work should be afforded any protection. So long as your sonnet contains only words found in the dictionary, it is "open source".
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