Software Patents Violate The Patent Bargain, Since There Is No Disclosure To Trade-Off
from the trade-away dept
It's always fun talking to big time patent system supporters, because it's easy to predict their arguments. After you point out all of the evidence that has shown absolutely no proof that patents increase innovation, the supporters always shift from "patents are necessary for innovation" to "patents are really about disclosure." The argument here is that part of the "bargain" for getting a government granted monopoly over your invention is that you have to describe the invention, so that those who are skilled in the art can replicate it from your description. Of course, as patent attorneys and software engineers admit, that's a myth. Patents are written these days to be incredibly broad, and really only understandable to other patent attorneys, rather than other engineers.Reader brad points us to an interesting blog post by Lukas Mathis, who points out that, at least in the software world, disclosure is useless anyway, because any competent programmer can understand how to do something without needing to look at any patent:
This trade-off does not apply to many software patents. I only need to spend five minutes on Amazon's site to figure out how one-click shopping works. There is nothing useful I can learn from reading the patent. Likewise, I only need to turn on an iPhone once to figure out how to unlock it. This means that Amazon or Apple don't give up anything when they patent these ideas. There is no trade-off involved; the state grants these patents «for free», because nobody gains anything from the publication of these ideas. They are already public.This is a really good point, and a great way of highlighting the ridiculousness of most software patents. The deal is supposed to be "we give you a monopoly, you tell us how to do this hard thing that we wouldn't figure out otherwise." But the latter half of the bargain isn't done because it's not necessary. And thus, those software patents are given away "for free," without the other half of the bargain. That would, you might think, bring their entire validity into question.
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Filed Under: disclosure, patents, software
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To which the pro-patent folks then come up with anecdotes of "inventions" that took years to develop but then are blatantly easy to duplicate.
Does something that is obvious to duplicate but was not obvious to originally develop deserve patent protection?
Does the promise of a patent lead to more such inventions? Or does the monopoly awarded hinder progress of this now-obvious field?
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There are a few exceptions, such as algorithms, but actually patenting those and revealing them to the world diminishes their unique value more than not getting a patent on them does.
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If only that were true!
The infamous "xor the mouse cursor on the screen" patent took all of about 30 seconds, assuming the programmer was reasonably competent. Amazon's one-click was not a technological innovation at all, and would have taken less than an hour to bring from idea to realization. I could go on, but there are many, many more examples.
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isnt that patent the same thing that the early apple developers used for video game characters?
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The point is, virtually all code is written and/or functionally interacts with lots of other code that has been built and updated through the years. If we suddenly lost all the code that had ever been written, we'd pretty much have to start again from scratch. Just about anything that can be conceived can be coded - thus, the hard part is the labor and the idea and neither of those is patentable.
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Of course not, but you could still have the idea. People were thinking about what they might do with flight long before we found out how to fly.
"The point is, virtually all code is written and/or functionally interacts with lots of other code that has been built and updated through the years."
Code certainly gets reused a lot but I have to question whether 'virtually all code' is true and suggest that the reason is more convenience than reliance. New systems are still being built from scratch, people still program in assembly language. The only thing consistent through it all is the maths. The reason they couldn't have done one click in 1980 is because the technology wasn't there to make it either possible or warranted, which is a separate issue to it being feasible to easily code a solution.
"If we suddenly lost all the code that had ever been written, we'd pretty much have to start again from scratch."
Not at all. You could lose all the code ever written and as long as mathematics and the hardware was preserved then you'd be playing 3d computer games in no time.
"Just about anything that can be conceived can be coded - thus, the hard part is the labor and the idea and neither of those is patentable."
Yes. But if anything conceived can be coded then why couldn't someone code a one click system in 1980? Answer: they could, it just wouldn't work.
As you point out, ideas are why software patents are just wrong even in the context of patent theory; because the code is basically interpreted maths it would be like patenting the counting of sheep. It may be laborious and it may not be necessary or possible until someone has sheep, but it should never be patentable.
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It hinders progress. Several weeks back I discussed a web 2.0 drop and drag shopping cart with Ima Fish. You click and drag the item you want into a shopping cart its there. To me this is very obvious, and I am guessing someone else came up with the idea at some time in the past also. All the idea is an extension of drop and drag which has been used in computing since the first windowed interface.
Here is some more "future prior art" for shopping carts.
mouse over or click on an item, a drop down shows up and you can pick send "xxxxx" to shopping cart, buy now, etc. Its very obvious and should not be patentable.
If I were to patent and enforce (move to east texas) this it would hinder progress and slow the development of web 2.0 apps. It wouldnt do what the copyright clause intended "promote the progress".
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(well, click and hold, drag, and drop, really)
other than that, good stuff! :)
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Only Partiall True
Greg also makes a decent point, in that some things that may seem blidingly obvious in retrospect were novel and met a long-felt need at the time. While it may be obvious how it works, the quid pro quo is that you actually invented it and put it in the stream of commerce, as opposed to keeping it as a trade secret.
In the end, under current patent law, as long as the written description discloses the invention and enables someone holding ordinary skill in the art to practice the invention, the patent application won't be rejected because once you use it it's clear how it works.
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Re: Only Partiall True
PageRank, is an algorithm, that is a trade secret. there is a distinction there. Google does not want others to know how PageRank works, so they keep it secret, rather than patenting their implementation, since that would cause them to disclose their method.
Others have been able to study how Google uses PageRank and think they understand how it decides the ordering. This has given rise to SEO community. However, known of these people 'know' how PageRank works because it is not disclosed.
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The other problem, of course, is that patent reviewers are not skilled enough to know weather or not the description in question will allow someone to practice the invention. On the contrary, they seem to be geared to allow someone with no skill in the art (the reviewer) to get the gist of the process, while leaving out much of the information necessary for the actual use of the patent.
By the way, don't forget about the "obviousness" test that's supposed to exist under law, but is consistantly ignored. Guess some laws matter more than others.
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Why do you pick on Google specifically, why not Microsoft or Yahoo?
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Because Google are more relevant everywhere. I'm only half joking.
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This rests on the assumption that you're the only one able to come up with an idea/design and that no one else can. I would much rather have my freedom to independently come up with a design, use and tell others about it and allow them to use it, than to worry about who has a patent on what. The fact is that patents do absolutely nothing to promote the progress, there is no evidence to promote the progress, and I don't want to give into your extortion attempts of, "if you don't give me an unearned monopoly, I won't disclose my invention." Then don't, others will.
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Re: Only Partiall True
Yet there are no patents disclosing it, neither for Google (which is the most transparent mainstream search engines), Microsoft, or Yahoo. Thanks for providing more evidence supporting the useless nature of patents.
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I've always been a little confused about why PageRank is patentable at all, given that it's just the equilibrium distribution of the usual irreducible aperiodic Markov chain associated to a directed graph. I mean, I agree that it was clever to choose the directed graph to be the world wide web and that it would only be an obvious thing to do for someone who knew about Markov chains but was interested in the web (and in 1998, there were probably very very few such people), but I just don't see how applying some well-known math to something new should be patentable.
In any case, it seems to me that an easy solution would be that software patent holders and licensees should be required to provide the public domain with all their implementations of the patent when it expires. The disclosure would benefit the public and discourage overly broad software patents.
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Assuming the patent holder is even alive when it expires. and what if they don't keep their end of the bargain, what are you going to do then?
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I've been saying this for years
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PageRank
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Not all software innovations are visible on the Internet
A good example of this is the patents around compression algorithms. After reading a book on text compression, I wrote a test example that worked. The implementation was simple but I never would have guessed that the simple algorithmic would result in such a high compression ratio in typical English text. I don't think I would ever have discovered that algorithm.
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MP3 player on washing machine was where I gave up on the patent system.
Discussion here seems to revolve on the question of whether an idea is trivial or not. Amazon's "one-click" and an MP3 player on a washing machine both definitely are. Off top of my head, can't think of any recent that are *not* trivial, especially in the realm of software, or more often, mere user interface.
But I don't have any problem with the Patent Office rubberstamping everything that comes in, and relieving applicants of a couple thousand bucks to do so.
Problem lies in the court system, which needs to answer the triviality question before all else: "Is one click ordering trivial?" If a jury of reasonable people can't unanimously and unreservedly say "yes, it's not something I'd have come up with in five minutes" then there's not any further case, regardless whether the idea has value.
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Re: MP3 player on washing machine was where I gave up on the patent system.
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April Fools!!
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APRIL FOOLS!!!!
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Patents 'again'.
And most good idea's seem obvious once someone has thought of it. But mabey not before.
There is no such thing as 'independently inventing' something, you either invent it or you copy it off the person who did invent it.
In this day and age, you cannot claim to be a skilled programmer and then claim stupidity about techniques and methods that have been developed.
So where are all the examples of patents holding back innovation, in any field ?
I cant think of any, if a method is patented and protected, then you can invent something better to do the job, and not just use what everyone else does.
Ie, invent something yourself, dont steal from others.
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Re: Patents 'again'.
"Stop stealing!" - Future Robot Overlords
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Re: Patents 'again'.
So you are admitting that the claim that people say patents are about "disclosure" is absolutely bogus? Cool.
There is no such thing as 'independently inventing' something, you either invent it or you copy it off the person who did invent it.
Wha...? I'm sorry, you cannot be taken seriously when you say something like that.
So where are all the examples of patents holding back innovation, in any field ?
Where to start? We've pointed to plenty of examples, from the steam engine to airplanes to pharmaceuticals to smart phones. Pretty much you name it.
Ie, invent something yourself, dont steal from others.
Funny, you "stole" that line from others. Why would you do that when you seem so against "stealing"?
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Re: Re: Patents 'again'.
Independent creation of the same invention can and does occur, though perhaps in certain areas of technology much less frequently than others. As for "stealing", I have seen only one such instance in my many years of practice. With the slight broadening of what comprises prior art under the SCOTUS KSR decision, I anticipate a higher bar being set for a patent applicant to satisfy the requirement that an invention be non-obvious.
I must disagree to some extent with your examples noted above simply because those in whose articles/books such examples appear the author(s) seemed to conflate correlation with causation.
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I think the assumption that no innovation would occur without patents is nonsense. People do come up with solutions to problems without patents and they do so independently of each other. Whether yo want to label a solution obvious or not is irrelevant, I think the more relevant question is, could someone else have come up with it or is this the only person who could? Is a patent necessary for someone to come up with a solution. and I would argue that most of the time the answer is no and that patent often only get in the way of solutions.
"I must disagree to some extent with your examples noted above simply because those in whose articles/books such examples appear the author(s) seemed to conflate correlation with causation."
The fact that drinking water correlates with people not dehydrating doesn't mean that water causes the lack of dehydration.
The fact is that there is no confusion, the evidence suggests causation, not merely correlation. Yes, we can't prove it with absolute certainty, there is always the possibility it is merely a correlation, but when there is plenty of evidence to suggest causation and little to no evidence to contradict it then it is reasonable to conclude causation.
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Re: Patents 'again'.
> innovation, in any field ?
This is remarkably dishonest. Examples from software have already been posted here.
This is not about how in awe you are about the problem of "create a telephone". It's about how that task is viewed by the relevant engineers.
Patents should at least be good documentation for state of the art techniques. They clearly are not this in software. As others have said, they seem to be intentionally obfuscated so that lawyers can game the courts.
Bad software patents steal the ability for ME PERSONALLY to benefit from my own intellect.
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As for the comments concerning "disclosure", this has always been the sine qua non of US patent law, with the term "progress" being equated to "disclosure". For example, Section 1 of the US Patent Act of 1790 provides in pertinent part that a prerequisite for the award of a patent is that an inventor "...describe the said
invention or discovery, clearly, truly and fully..."
This requirement has been carried forward in every subsequent amendment to US patent law. Moreover, it was made with each amendment a more rigorous requirement. In addition, the judiciary engrafted even more requirements.
Quite recently the Court of Appeals for the Federal Circuit examined the pertinent section of the Patent Act of 1952, 35 USC 112, and articulated an even more stringent test that disclosure must not only fully describe an invention, but must also be sufficient in detail that one of ordinary skill in the art can make and use same. See: Ariad v. Lilly.
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While we're talking though, I'd like to throw another argument in there: Disclosing a software "invention" (even if disclosing it did do something) that's tied up in a monopoly for another 20 years is not really all that helpful. Ask your friendly neighborhood programmer how excited he would be to use a software invention from 1990, then let me know when he's done wetting himself with joy.
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Responce: to auther's 'claims'....
So you are admitting that the claim that people say patents are about "disclosure" is absolutely bogus? Cool."
Nice spin, if you invent something and apply for a patent on that discovery, you ARE DISCLOSING you're invention to the only group that matters. The patent office.
There is no requirement for you or a company to 'publish' or disclose their patents to any joe public or some 'reporter'.
It's YOU"RE responsibility to check if you think you invented something to check with the patent office to see if someone else has allready lodged a patent.
The reason you cannot 'independently invent' something is the definition of an invention is something that can be patented, therefore you have not invented anything until the patent office approves it as a new invention, you enter the patent office 5 minutes after the first guy and you lose.
It's therefore not when you invent something, it when you register and have approved the patent. And the only 'disclosure' you need to do is to the patent office.
The same place you go to find out what other patents are issued. It's not up to the company to announce and list every patent they have, they have allready done that to those that count, and it's not you... it's the patent office.
Who are you, and why should anyone feel the need to disclose to you everything they do. It's none of you're business.
>So where are all the examples of patents holding back >innovation, in any field ?
>Where to start? We've pointed to plenty of examples, from >the steam engine to airplanes to pharmaceuticals to smart >phones. Pretty much you name it.
So where are those examples again, and explain to me and you're readers who the steam engine held back innovation for example, did it stop the development of other types of engines? like the steam turbine, or the internal combustion engine ?
Where has innovation been held back again, by you're logic we should all still be using steam enginess, and guess what we are not.
Again, where is the holding back of innovation ?
Drug industry, many drugs would not have even been developed or evaluated by the pharm companies unless there is clear legal/patent protection on those compounds.
Again, where is the lack of modern drugs and treatments due to patents ? please explain.
It's easy to rattle off a few things you think may have been held up by patents, but unless you can state specific examples and give a bit more than "steam engines" then you're argument seems very weak indeed.
Lets talk software, so MPEG many have patents, did that stop the development of others standards and methods like OGG?
Would OGG have been developed if FOSS could just use MPEG ?
I dont think so, so that is an example where patents PROMOTE INNOVATION, now I can think of many examples where patents have prompted smart people from doing something different and better.
Thats why we dont use steam engines very much these days, because even with patents lots on innovation in the field of enginess have been developed through histoy INSPITE of patents.
So unless you can support you're claim with actual, tangable examples that can be confirmed by logic, you're just spinning FUD.
So ive given you several examples where patents have promoted innovation, but I still cannot see any examples where it has not. And so far you have failed to provide any.
All you appear to do is fear monger, and throw out weak examples that you clearly cant support with facts.
But it's you're blog, and reputation at stake..
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So that they are able to disclose it to the public. Here is a good explanation of how the system is supposed to work.
"So where are those examples again, and explain to me and you're readers who the steam engine held back innovation for example, did it stop the development of other types of engines? like the steam turbine, or the internal combustion engine ?"
Did someone fail to mention to you that the search function doesn't require a fee to use?
"Lets talk software, so MPEG many have patents, did that stop the development of others standards and methods like OGG?"
MPEG and OGG are completely different things. I think you mean MPEG and Theora, which would be a poor example considering the ongoing argument that MPEG is technically more mature yet incompatible with free software due to the patents. Potentially much money is going to be wasted bringing Theora up to the level of MPEG, when the two technologies could just be allowed to complement each other. If having to do something again but differently just to preserve free software is 'promoting innovation' then it sucks.
"All you appear to do is fear monger, and throw out weak examples that you clearly cant support with facts."
As opposed to you, who is calling all his examples fact-less without providing any credible ones of your own, or clearly explaining why his aren't.
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I don't think that statement is accurate; however, we can assume it's true, in which case, the law is horrible and should be fixed.
Really, if we were going to be stupid and keep patents around, at least we should be a bit more fair and make them automatic and $0, just as is the case for copyright. We would likely then want to accept independent invention since it would be even more difficult to know if someone already invented something. As things are, those without a lot of money are at a great disadvantage. People with money can simply watch what "I" do and patent around it, leveraging everything I did, or they can spend their time writing patents while I spend my time writing software. In any case, they use without any restrictions what I created while I cannot, for 20 years, use anything that falls under the description of whatever they described (and this despite that they studied my work).
In fact, your definition of "invention" suggests that you are willing to exploit people that have come up with great ideas and are working on them publicly (eg, open source), copy the ideas and draw up a patent application for it, and then claim you are the inventor and the invention is yours.
The patent system doesn't just allow this unfair copying and abuse by those with a lot of money and greed, but it actually encourages it because it accepts very broad invention descriptions and grants exclusively to the very first filer of the patent application a monopoly subsidy consisting of super duper powerful injunctive powers for a super duper long time of 20 full years.
I could go on and on and on about how broken the patent system is, but I'll take a pass right now. [If you want to read some, I commented recently at the bottom of this page http://www.techdirt.com/articles/20100330/0331488784.shtml .]
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20 year monopoly subsidy for "not obvious", eh?
Who is the judge of what is not obvious?
How do you know 10 or 1000 other geniuses or even the top 10,000 nongeniuses in the field don't find that invention relatively straightforward even if 100,000 average others do find it impressive?
Did you interview? Honestly, do you think that every single thing that someone considers straightforward, they go and patent? That is impossible, assuming they even wanted and had the money and time to leverage the crooked patent system.
And let's say absolutely no one else finds the invention obvious? This simply means they won't come up with the invention in a day or week. Surely, many things that are not obvious can be resolved within a month or a few years.
Actually, I think it's **extremely** unlikely that any given patent was 20 years ahead of its time in the sense that no one else would have seen that for 20 more years. Even revolutionary scientific achievements (which surely don't happen thousands per year as say Microsoft just by themselves pull out patents yearly) usually do not happen except with collaboration and leveraging off the work of others in the past. [Eg, Einstein leveraged the work of his contemporaries and even was exposed, through the patent office where he worked, to a great many ideas from top minds in many fields]. And in these cases, you frequently had several people far removed from each other advancing towards the solution. Surely, even in these breakthrough cases, if the "first" to arrive at some point had bailed out early or kept secrets, others would have reached or surpassed that point within much less than 20 years. But most importantly, without the help from peers and everything else from society, almost no one would have made the breakthrough.
Further, in many of these cases, these people gained a lot and did not need or did not get a patent in order to march forward creatively or in order to collaborate. Surely much prestige and cash followed such breakthroughs. Not even a 1 year patent was needed as motivation.
So if for rarely occurring breakthroughs in science we don't find individuals 20 years ahead of everyone else, then I don't think we should ever expect that to be the case in most other places, and surely not in a field like computer science/engineering that is loaded with creators/inventors as the barrier to entry (development, (re)design, distribution, leveraging of others' work, etc) is so low and collaboration among almost anyone around the world is so cheap and easy.
BTW, what is the cost to experiment in computer science? It's very low. And part of the reason is thanks to open source. Patents are incompatible with open source whenever they are used to hamper any open source (developer or user).
Anyway, are we seeing the patent office granting a few patents per year or per decade? And are these patents narrow? Not at all. Not at all. The system is based on mythology. Life doesn't work where a unique individual comes up with a 20 year contribution that others in that same society did not and could not foresee the result.. especially not where you have many people competing already.
Hey, guess what. The "first" gets first mover advantages. The government can give tax breaks and awards. You might even win a Nobel prize. People will want to pay $100 per plate or more to hear you speak. Everyone will want you to be on their team and will find decent money to pay you should you chose to accept. If no patenting was good enough for Einstein and a great many others that made great contributions, then surely it is good enough for the rest of us in society. In fact, if patenting had been done and used to bar others from interesting parts of the field, development would not have occurred except at very slow speeds. [This much is obvious and recognized even by many of those that love patenting, as they frequently prefer to cross-license rather than to enforce injunctions.]
In particular, every single monopoly comes with an opportunity cost to society based on all the people that otherwise would have developed (or already have!) the invention and added to it over the upcoming 20 years. For software, we are talking about a huge huge cost because there are so many inventors. Also for software, there would be a further huge cost is open source was negatively impacted or denied. [I'm not even looking at fairness, decency, or liberty issues here but merely looking at costs to society.] Open source lowers costs for society and other developers.
Also, software can be built efficiently without huge capital expenditures. [In fact, in most areas where the first patent might be used to cover costs, additional patents are still granted with full power even if these other patents relate to the first one and already had the investments covered!]
Anyway, the tens of thousands of mistake patents being granted annually could end up taking a huge toll on society if those receiving it decide to enforce injunctions or cash in later on down the line. The system is wholly unfair, stifling, unethical, and based on mythology.
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Rob from the unwealthy and/or generous to give to the greedy rich by the bucketfull
By the standards used by the USPTO, open source is reeking with innovation since a great many lines of code added to almost every project creates something completely new and that may certainly not have been obvious to the average software developer based on what exist before those lines were added.
Almost all of this innovation (along with added documentation) is being created without leveraging patents at all (eg, extension patents to the base invention). This means that complete openness to the public is being achieved (in much higher detail than patent claims expose) AND the usage terms are extremely generous over the same 20 year period.
This is awesome, but we find out that patent authors are allowed to leverage all of this innovation given freely and then take out patents and enforce those patents on absolutely everyone for 20 years. These patents can be enforced not just on the rest of the world but even on those who produced the original open source innovation leveraged by the patents.
We are talking about a very large number of very unneeded weapons of mass destruction being created to potentially inflict untold damage on the progress of society.
I did not realize capitalism was about creating unnecessary monopolies by the truck load (based on lies) and generally handing these out to the wealthier portion of citizens who (a) frequently are below average in respect for peers, social progress, and social costs, and who (b) are allowed to enforce the monopolies against those much more generous who perhaps even served as inspiration. Capitalism?
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Predictability
"It's always fun talking to big time patent system supporters, because it's easy to predict their arguments."
I hear people say this a lot about others that they disagree with, as if being predictable is somehow a bad thing. But it's not a bad thing. Your arguments are easy to predict as well, Mike, because (by and large) you are consistent. And that actually *adds* to your credibility.
Of course, it *is* bad to stubbornly hold on to viewpoints that go squarely against the available evidence. Which is perhaps really what you intended by that (and which is the real failing of patent supporters). But predictability in itself is not bad at all.
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What patents have stifled innovation ?????? examples pls
As opposed to you, who is calling all his examples fact-less without providing any credible ones of your own, or clearly explaining why his aren't.""
What examples has he given to indicate that patents stifle innovation.
I read alot of smoke and mirrors here, but facts, and actual examples where patents stifle innovation I have yet to see.
BTW: I did not expect to see any either. Mabey the fact you guys cant think of any real examples to confirm you're argument shows the problems you have with fighting for patent reform.
Where is you're 'prior art', or obviousness of you're claims.
If you were right you would be able to list many many many examples where patents stifle innovation, stating EXACTLY HOW this has occured.
But what do I get, resorting to attacks on me, or my statements. All i asked that you provide facts and examples.
And you failed !...
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the eu,
the uk,
no one makes any software ,
there s no programmers,at all
as theres no software patents to incentivise them.
i,m being sarcastic,
patents are only good for trolls or patent lawyers or big companys .
seo can look at google s search rankings,
but they dont,know the exact weighting google gives to
different parameters,eg
No of links on a site,
is the site a blog, a tumblr, a magazine ,A site with millions of users,
a video website , A dot.com ,dot.net etc
does the site have ads on it.
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