Why It's Mathematically Impossible To Avoid Infringing On Software Patents
from the scalability-problems dept
In 2008 James Bessen and Michael Meurer came out with a truly excellent book, Patent Failure. It's chock full of excellent information and a pretty wide survey of the research showing just how much patents harm innovation. While I don't necessarily agree with the "solutions" proposed, the key thesis of the book makes a tremendous amount of sense: to have a functioning market, you need property with clear borders. If the borders aren't clear at all, the end result is that no one knows when they're trespassing or even what they're buying, and the benefits of a market collapse, and instead you get mired down in legal disputes. That's exactly what we're seeing with patents today. Of course, one of the key reasons for this -- as we've been explaining for years -- is that patents are not property -- and thus the attempt to force property-like rules on something that is naturally abundant is going to make it impossible to creates reasonable boundaries.Tim Lee wrote about the book, highlighting this very point right here on Techdirt soon after the book came out in 2008. Apparently, it's stuck with him. Lee, along with Christina Mulligan at Yale, have built on that idea to write an excellent research paper that explains how it's effectively impossible to actually avoid infringing on software patents. The key? It's a scalability problem.
Lee and Mulligan have written up a shorter summary of the piece at Ars Technica that makes the point clearly. Because software and software patents don't have "defined boundaries," you really have to go through every single software patent to make sure you don't infringe -- but that's a problem that's insurmountable:
we estimate it would take at least 2,000,000 patent attorneys, working full time, to consider whether all these software-producing firms have infringed any of the software patents issued in a typical year. Even if firms wanted to hire that many attorneys, they couldn't; there are only 40,000 registered patent attorneys and agents in the United States.This isn't surprising. While some people assume that patent infringement is all about one company "copying" another, in the vast, vast majority of cases it involves independent invention (often of the obvious next step in a process). The infringement couldn't be prevented, because the companies were just building what they needed to build to serve the market, and it's basically impossible to check to see if you actually infringe on another patent. Some patent system defenders pretend it's easy to find these patents, but that displays a lack of understanding about the true size of the problem.
As Lee and Mulligan note, companies infringing on software patents have nothing to do with companies trying to copy others or "get something for free", and everything to do with the fact that it's "mathematically impossible for them to do anything else."
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Filed Under: boundaries, christina mulligan, infringement, james bessen, michael meurer, patents, software patents, tim lee
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If you can come up with a better system, then perhaps we can solve both problems - and no, getting rid of patents and copyright isn't an answer, except in your fantasies.
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Response to: Anonymous Coward on Mar 12th, 2012 @ 12:46pm
Also Mike has presented the solution to this problem many times if you will care to go read. He's done you one better actually by coming up with a meta solution to the meta problem.
First, you pick something to try. Anything will do, let's not get mired in the details. You then enact legislation to try that thing. How you do this is up to somebody else, let's not get mired in details. Then after a year you see if it worked. How you do this is undefined but let's not get mired in details. Either way, everyone will agree on this "success yardstick" and how to interpret it, so you will be able to then clearly move forward based on your experimental results.
IT'S ALL SO SIMPLE! It's lucky we have such brilliant bloggers to come up with concise solutions like this one that no dumb legislator, politician, or economist could ever come up with in a million years!
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I don't think this line means what you want it to mean. In that you have failed in your attempt to rebut Mike's article.
Youtube is too big to check from Youtube's end. Why? Because everything under the sun that has been fixed in a medium since 1923 is automatically covered by copyright. It is mathematically impossible for Youtube to compare everything uploaded to every single thing created since 1923 and at the same time judge whether it is infringement or not.
On the other hand, it is perfectly acceptable for the owner of a copyright to do the policing for that owner's own copyrights.
Same thing here with software patents. It is mathematically impossible for a software developer to compare their software with every software patent for infringement. However, the owner of the software patent is free to police its own software patents.
As for a solution, I think some minor changes can be made for both areas of IP law. However, you and your ilk are not interested in any real solutions. You only want increase while logic, common sense and sanity call for rolling IP law back.
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AC claims straight up that patents being too big for anyone to avoid infringing on them is the best system. I detect no hints of sarcasm, nor any signs of the obvious cognitive dissonance that such a statement must bring (if it is impossible to know that they are infringing, how can they be said to be "stealing" someone's idea?). Furthermore, he claims to want ideas for a better system while immediately refusing to listen to any idea he has predetermined that he doesn't agree with. He's succinct, confrontational, and he obviously designed his post carefully to invoke anger in anyone with a functioning brain.
In light of the above, I award this AC 10/10. This is the high caliber of trolling I've come to expect from the TD comment section.
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We are (by Mike's own reckoning) at a time of great innovation. Yet he is shocked that we have many patents on new ideas. How truly odd! Does he expect all innovation to only be paint color or the addition of "30 END" on the end of basic programs?
Innovation, Mike is for and against it at the same time!
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I do not see any, yet I see you feebly attempting to make some sort of point.
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"YouTube being able to say they are "too big to check"" I don't recall them ever saying that and in fact it is what their content ID system does.
A FAIL at FAILING. Good work.
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They also are not generally enforced, which is why we can get any innovation at all today.
The entire concept of a "Software Patent" is flawed. Mathematics and algorithms are specifically excluded from patent law, and the idea that adding software to a computer creates a new machine makes about as much sense as putting a new record in your record player creates a new machine.
This entire situation is absurd.
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Really... how do you think having every software programmer liable for patent infringement, without them even looking at the patents, is good for innovation?
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Re: "(gimmie, gimmie, gimmie)"
One example that I will grant is when a patent is aquired with hope or intent for defense against other patent infringement claims.
I think it is useful to have protection against someone excluding you from the opportunity to utilize your inventions or ideas (for a LIMITED period of time.) But if you hold patents with NO intention of using them except to skim profit from others who actually produce economic benefits through goods and services then I don't see that you deserve the protection.
Maybe I just see the world differently but I consider "patent trolls" to be parasites on society that offer no benefit what so ever.
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Innovation type 1: Something new, unprecedented, or a clever re-working of something that already exists.
Innovation type 2: Something obvious, but worded in such a way that it gets jammed through an already clogged and faulty patent system.
I'd contend that Mike is all about type 1, and not so much about type 2. So... yes. I agree with you. Mike is both for and against innovation.
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You can cure the disease by abolishing intellectual property law now, or you can spend the rest of your life trying and failing to cure the symptoms (and ultimately end up having it abolished anyway when the economy collapses under it's own bloated weight).
I'm fine with either method, honestly. I'm to the point where I think I should let my political opponents have everything they want, just so I can watch the system grind to a complete halt under their batshit insane policies.
"You can't make and sell cupcakes in the shape of a star! That was my idea!"
"I was going to write a story about a cyborg ninja who goes on a journey of self-discovery! Award me damages!"
"My name is Anne! You can't use that name, it's mine!"
It will be glorious to behold, and people like you will be sitting around with your thumb up your ass, wondering why there are no new jobs, no new products, and every product that already exists costs twice as much due to licensing fees and legal costs.
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2nd, one is a set of rules and the other is a collection of videos
(The distinction between 1 and 2 are subtle, but relevant)
3rd, one is a system run by the government and the other is a collection of videos administered by a private corporation.
That is one hell of a bad analogy, dude.
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So - by your analogy - we should abolish both patents and copyrights!
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Also, why can't Mike fantasize? Not saying he fantasizes about a world without copyright and patents, he rather forcefully argues for them, but in a more controlled and sensible environment. If you are arguing against fantasizing at all, Disney has a big problem.
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If you can come up with a better system, then perhaps we can solve both problems - and no, getting rid of patents and copyright isn't an answer, except in your fantasies.
Yes, both are too big to check, and thus it's silly to have a system that requires checking either.
Thanks. I think this may be the first time we've ever agreed on anything, even if you seem to think you disagree with me. Congrats on being so wrong you're finally right.
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Some ACs are pretty obvious to spot by their use of language. This one in particular.
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Could it be he reached a so abyssal level of fail that he actually started doing it right? Could it be we'll be seeing valuable comments from him in the near future?
I'm waiting with anxiety for his next comments!
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Let's say you're a TV executive who wants to know if a particular show is illegally on YouTube. Yes, YouTube is too big for you to watch every show to see if it infringes on your work... but, luckily, you probably don't have to. You can search YouTube with your show's name as a keyword and get 99% of it. Maybe you can try searching for a few actor's names and such as well. Yes, it's possible that you won't find the video where someone has a TV on in the background, but hopefully you're sane enough to know that such a thing isn't hurting you.
Now, let's say you're a software executive. Exactly how are you going to figure out which patents your (as yet unwritten) software may violate? You can TRY a keyword search... but consider, for example, this excerpt from a patent labeled "System and method to develop health-care information systems" (Patent 8,000,977.)
"It will be apparent to the skilled artisan that the system of the invention described above in several embodiments is much more broadly applicable than to the narrow field of health care services. The examples of health care services are an important application, but serve as examples only. The characteristics of the invention can be applied in any area of human endeavor where distributed tasks must be planned and scheduled, and existing data must be sought and applied. Such areas include information management of all sorts, manufacturing systems, design systems for both hardware and software, and much more."
See where it says it applies to other fields? But how is anyone outside the health care software field going to find this patent, aside from going through every single software patent out there?
And ALSO keep in mind that the software is almost guaranteed to change during the development process. Technology becomes obsolete, you get more data on what users want, etc. So maybe the developer changes some little thing, like having something work in one click instead of two, and all of a sudden you run into an insane one-click patent that you wouldn't even THINK to search for even if you knew your developer changed that detail.
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The other solution
The patent system will not go away, because there is too much misguided economic interest in it. But what will go away is the western world as leader of the civilization. It will collapse in its patent wars, it will stop inventing, and become a bunch of third world countries.
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Please underlie your assumptions with hard data and statistics why a patent system is needed.
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Re: getting rid of patents
I suppose you are one of the people that think irrigation is impossible because patents did not exist back then?
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Re: Re: getting rid of patents
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The trolls have found this weakness, and exploited it
It's all a numbers game, and the trolls are exploiting it. They know you can't throw a dead cat without infringing on a patent, so they pull out their shotgun and use a spray and pray method to fire at anyone who writes software for anything. And as the burden of proof is on the patent holder, they usually win by default if they hold a patent that's anywhere near close to what the defendant is using.
This is why Article One and RPX (are they in talks yet? dating? seriously, those two ought to be at least courting one another...) are so profitable. They solve the problem where it starts: the patents themselves. Article One "prior arts" them out of usefulness, and RPX buys them on behalf of subscribers before anyone else can.
Seeing the numbers is truly staggering, and it exposes the problem really well. Numbers usually do that.
Cheers,
Steph
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Re: The trolls have found this weakness, and exploited it
The problem is that so many "innovators" are simply copycats and then they cry foul when they KNOW they are copying existing and popular software.
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Re: Re: The trolls have found this weakness, and exploited it
pot meet kettle
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Re: Re: The trolls have found this weakness, and exploited it
Holy shit man, you just proved with your post that you have no business talking about programming or software. Good job joining the club of the ignorant. I'm sure the other idiots will lend you their cigars.
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Re: Re: Re: The trolls have found this weakness, and exploited it
Furthermore, why would you be purposely writing software that does the same thing as other software. What is innovative about that? This site is constantly using that word, and yet the "innovation" is obviously missing.
Even something as simple as an incremented loop can be accomplished many many different ways.
FOR Number = 1 to 100
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NEXT Number
DOW Number <= 100
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ENDDO
IF Number++ <= 100
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ENDIF
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Re: Re: Re: Re: The trolls have found this weakness, and exploited it
Wow, you just infringed on two existing ways to make a loop! Bad programmer, bad! You have to come up with your own completely unique way!
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Re: Re: The trolls have found this weakness, and exploited it
We don't care if other companies use the same techniques as us. It's not our business model to sue someone who uses the same techniques. All we care about is serving our customers and building solid software. In fact, it would make no difference if they copied our entire codebase. Good luck with that as just having the same code doesn't mean you can run it, support it, or maintain/enhance it. For that, you need the people that built it. It's not monkey code that flips photos on your desktop. The patent system provides no incentive to us, nor most software companies when they focus on serving their customers and not suing their competitors.
Having sat in on a couple of patent submissions and watching the patent lawyer make the language as ambiguous as possible so as to cover the widest range of interpretations, it's an absolute fools game, unless you're looking to sue someone or build up a war chest of patents to use in the event that you are sued...
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Re: Re: The trolls have found this weakness, and exploited it
Basically, even those intrepid few who manage to not only create an entirely new use for software, but does so by using processes and platforms that are not yet known to exist, are merely "most likely" non-infringing. Who, exactly, would these uber-l33t programers be? They would have to be some group that is completely disconnected from any form of modern human society, least their minds become infected with anyone else's IP. Cave-dwellers or some remote tribe of the Serengeti might have the prerequisite disconnectedness, but are unlikely to have electricity, not alone a C## cross not-yet-invented-platorm compiler. And I believe the abacus is already entangled in a patent ticket. Well, that leaves space aliens. Yet even they, by your standard, don't have a 100% probability of being non-infringing!
So please, explain how your vision of software patents is remotely functional, or even sane.
And yes, I am a Software Engineer.
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Re: Re: The trolls have found this weakness, and exploited it
Every single Operating System must:
A) be capable of running on architectures from a major distributor.
B) provide programmers with something at least incredibly similar to the interface that they are used to working with.
Should every operating system be exclusive to certain computers? Should every program need to be completely redesigned in order to run on a different OS?
How should we handle code embedded into web pages that could potentially be read by computers using different operating systems? What about implementing web standards?
This problem is not limited to operating systems. The same themes run throughout the industry.
Only at the highest levels of design could a program ever mesh with the patent system, which is not at all what we are seeing with software patents. But even there, there is no need for patents. Our industry moves at such a pace as to demand constant innovation. No extra motivation is required.
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A process flow would consist of the following:
Accept input of new process to be checked.
Flash random patterns on screen
Reply "Yes"
The difficult thing is writing a program to tells you which one(s) is/are infringed.
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Re: A working TARDIS
Can you imagine how ugly it would get just trying to patent the mechanisms of a TARDIS? Can you file patent lawsuits across the entirety of time? Then, oh, the software. How many patents would be infringed on software that has to produce results before the program is started, let alone given data? Is there a patent on progression testing software that runs backwards? How do you even describe a program that may have to end, then start, and come to the middle where it's done with its job? East Texas might collapse into a black hole trying to sort that one out.
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"...it would take at least 2,000,000 patent attorneys..."
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It's not a bug, it's a FEATURE
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What music is it that I hear playing in the background?
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So what you're saying Mike is that you're against job creation!
/s
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See they DO create jobs. /s
Would be nice to have that money for other projects.
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Do you even know the first thing about software development? No? Then maybe you shouldn't be commenting on this subject.
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Legal Definition of Property
In the physical world this makes sense. If you build a house on my land, then I can't build a house. If you mine the gold, then there is less gold for me to mine. It has also traditionally been very easy to recognize the limits of these exclusions, or rather the boundaries of the property; just look at a map. This concept easily transfers to other forms of physical property - "dude that's my car" not your car.
But with "Intellectual Property" all of these concepts fail. Instead of limited and bounded resources that are scarce and well defined, we have infinite "ideas" - and yes all patents are really ideas, just ones that are supposed to be very, very specific and well documented.
Let's say I patent a mechanical means of separating cotton fibers from their seeds. Can I exclude all other mechanical means from doing the same thing, or just means similar to my machine? How similar is too similar? Can I just exclude other sales of those machines and not the manufacture? Why stop at just sales? What if I add steam power to the machine? Do I have to patent that? What about electric power? The questions (i.e. the limits or bounds) are in fact limitless.
So any expansion of intellectual property rights, actually is an expansion of exclusions placed upon others. Such expansion doesn't "create" more property as we would think of creating more land to farm. This expansion limits what others are allowed to do.
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Re: Legal Definition of Property
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Re: Legal Definition of Property
Real property: a house in the real world. There is only one of that specific house. Only one people can use it fully at a time.
Imaginary property: a house in a single-player computer game. Every one playing the game has a fully independent copy of that house. An infinite number of people can use it fully at a time.
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well - I'll tell ya.
said system is:
1) completely devoid of legitimate benefit
2) corrupt
3) wasting valuable resources
4) the butt of many jokes
5) .... profit ???
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Impossible?
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Independent Invention Defense
But in practice, patent disclosures are a joke. And with software, practically no one is actually looking up the disclosures. It's faster to figure out a patented piece of code on your own than it is to make sense out of the intentionally ambiguous software patents out there.
An independent invention defense would solve this. It provides an incentive for inventors to make their disclosures actually useful, and protects software developers when the disclosures are useless.
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Re: Independent Invention Defense
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It's an Agrandizing Land-Grab
To explain. You have a defined piece of property that overlooks the ocean. The view of the ocean contributes to the value of that property. The neighbor allows trees to grow, which blocks your view of the ocean thereby depressing the value of your property. You then assert that you have a right to trespass on the neighbors property to cut down the trees on his property. The fact that you are diminishing his property values and violating his property rights is considered irrelevant.
All that these lawsuits are is a claim that you can "steal" someone else's property and to prohibit competition.
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How small can fight the big ones?
If I use a string without knowing what has already been patented to use at different program, so I do not break any patent! After all, if the programs have different purposes, compete in different market niches. Am I wrong?
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Re: J N Gross
Let me give you an real example. I happen to hold a patent on a new way to do a certain kind of Inverse FFT Filter. This is used in music, and visualization (particularly of microscopic, and telescopic data sets). This method is a 1000 times faster then the previous method in software. Both methods use FFTs, both methods permit filtering of the FFTs and visualization (or tone generation) of the inverse. These tend to be just feature components in a range of features in a visualization suite. YOU CANNOT DISTINGUISH THEM BY BROCHURE, OR LITERATURE. You must inspect the object code at work and the source code for this functional area.
Of course no one will publicly provide their source and functional object they would soon be out of business. Let me state though that even if they did but called it something obscure enough the patent owner still might not ken to its existence, thus still would not have been put on notice, and had an obligation to notify the potential licensee.
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Mathematical Impossibility
How dare you!
Furthermore I have a patent on an algorithm process to file a tort here in Alameda County against any scoflaw from the south bay who fails to pay the license fees to use copyrights.
I just put your work address into the process and you can expect to be served any day now.
I've already given my friend Leroy your picture and asked him to make sure to give you the full welcome when you get in line at the Courthouse on 14th street in Oakland. I paid him extra for the FULL cavity search- I know you of all people will enjoy getting your head out of there if only for a little while.
Naturally the patent and copyright suit will be in federal Court in San Francisco. Fernanado does the searches there and he says he LOVES your style.
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another biased article
Masnick and his monkeys have an unreported conflict of interest-
https://www.insightcommunity.com/cases.php?n=10&pg=1
They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world�s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are patent system saboteurs receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don�t have any.
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patent system is just leg pulling
yahoo a company
that abandoned its own search
closes geocities and
purchasing Broadcast.com for 5.7$ billion and making nothing out of it talk about patents they don't even use
their problem is that they didn�t has a mentor like like Eric Schmidt
and face-book suing every company that starts with face of ends with book
is crap MZ should also patent the sue mashable as both have a blue color scheme
patents should not be software based hardware makes sense
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No two softwares are the same.
What we have today, is companies patenting things like "mouse traps". Not only that, but they're literally patenting mathematics, numbers, equations (the base of all computer software).
The exact problem is that doesn't matter if you apply your code differently and build a better mouse trap; someone already has "mousetrap" pattented.
Imagine if Ford was able to patent "cars" or Terminex was able to patent "poison". Imagine what that would do to innovation.
Did you even understand the article? It says that if you bring software to the market that you can/will be sued into poverty.
I just read a story the other day that one troll was suing people for "validating authenticity of purchases". Really, they've literally have a patent on using a computer to enforce your patent.
LOL
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I have no idea...
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