Ask your average non-programmer:

“We have a decision to make: we can design this application as a minimal shell and implement the rest of the application as external modules. However, if we do that, we have to be careful because if any module, including a user-implemented module, wants to access certain functionality then the user-defined module has to be linked to the module containing said functionality.”

Or:

I’m not sure if we should implement this functionality in the base class or the sub-classes. If we implement this functionality in the base class, then we don’t have to copy and paste a bunch of code. If we implement this functionality in the sub class then we have to copy and paste a bunch of code. What seems like the more logical decision? Yet any programmer knows it’s not always that simple.

To me, there are similarities with the free speech argument, although I am not trying to connect two unrelated issues. You have the right to free speech as long as it doesn’t impinge on my rights. Thus you cannot yell “fire” in a crowded theater unless there is really a fire. Nor can you make false statements about others with the intent to damage someone’s reputation.

The patent system should consider the concepts outlined in our right to free speech. Fine if you get a valid patent. But no one should get a bull excrement patent and use it to limit the rights of anyone else. Yet that’s what happens and the problem is getting worse. Mr. Markham has pointed out the “emotional” aspect of those who oppose software patents. I think the emotional aspect is rooted in the correct belief that baseless or broad software patents limit the rights of others, while promoting the rights of the patent holders who received these “special rights” by abusing the system.

Ask your average non-programmer:

“We have a decision to make: we can design this application as a minimal shell and implement the rest of the application as external modules. However, if we do that, we have to be careful because if any module, including a user-implemented module, wants to access certain functionality then the user-defined module has to be linked to the module containing said functionality.”

Or:

I’m not sure if we should implement this functionality in the base class or the sub-classes. If we implement this functionality in the base class, then we don’t have to copy and paste a bunch of code. If we implement this functionality in the sub class then we have to copy and paste a bunch of code. What seems like the more logical decision? Yet any programmer knows it’s not always that simple.

To me, there are similarities with the free speech argument, although I am not trying to connect two unrelated issues. You have the right to free speech as long as it doesn’t impinge on my rights. Thus you cannot yell “fire” in a crowded theater unless there is really a fire. Nor can you make false statements about others with the intent to damage someone’s reputation.

The patent system should consider the concepts outlined in our right to free speech. Fine if you get a valid patent. But no one should get a bull excrement patent and use it to limit the rights of anyone else. Yet that’s what happens and the problem is getting worse. Mr. Markham has pointed out the “emotional” aspect of those who oppose software patents. I think the emotional aspect is rooted in the correct belief that baseless or broad software patents limit the rights of others, while promoting the rights of the patent holders who received these “special rights” by abusing the system.

Your concerns about the little guy are valid, but there is the problem of what happens if you are the little guy being sued? Sure, you might win a phyrric victory over your richer opponent, but what happens if you have to lay off most of your employees to cover legal fees and lose critical R&D; time?

Every software patent I have looked at has been a blatant attempt to patent an idea itself, such as the Hibernate example. I too have yet to see a single one that isn’t obvious on its face or would be the practical solution that would first come to mind to any developer needing to create that solution. It’s not a matter of hindsight is 20-20, it’s a matter of it being so obvious that if someone said “how would you do this,” that a typical developer with a few years of experience could rattle off essentially the text of the patent without even knowing the patent exists or having heard of the product(s) it’s based on.

Your concerns about the little guy are valid, but there is the problem of what happens if you are the little guy being sued? Sure, you might win a phyrric victory over your richer opponent, but what happens if you have to lay off most of your employees to cover legal fees and lose critical R&D time?

Every software patent I have looked at has been a blatant attempt to patent an idea itself, such as the Hibernate example. I too have yet to see a single one that isn’t obvious on its face or would be the practical solution that would first come to mind to any developer needing to create that solution. It’s not a matter of hindsight is 20-20, it’s a matter of it being so obvious that if someone said “how would you do this,” that a typical developer with a few years of experience could rattle off essentially the text of the patent without even knowing the patent exists or having heard of the product(s) it’s based on.

Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts.

In theory, yes. Practice however is a lot different. For example, Red Hat is being threatened at the moment over claims that I believe center around object db software (extracting from/sending to). I could be wrong, but I think that’s the gist of it. As was mentioned earlier, this is kind of like patenting “A drug ingested into the body, through being absorbed into the blood stream, which, when brought into contact with carcinogens, impedes their ability to grow in population, thus killing off the cancer.” Lame right? Because you haven’t really invented anything, and monopolized the mere idea of invention that could be. This kind of stuff fails obviousness and prior art, so it should be struck down in court.

However, getting back to RH, now they have to spend legal costs to fight this. And if the system keeps piling up, how many more companies will the same thing happen to? And that’s even if the court is sane. I admit, I haven’t really researched this, but isn’t the East Texas District infamous for upholding just about anything related to IP holders? It would nice if we could reform software and business method patents, but is there any pragmatic system that would be effective, given the situation?

Also, I’d like to take this chance to comment on something I read on this blog. Can’t remember who the author was, maybe Tim? He or she was saying that most classes of IP are protected by either copyright or patent. Art by copyright and invention by patent. Software is protected by both, however. Having software protected by copyright seems ok to me.

Tim, about your question about a good software patent, this is one I’ve thought about but never gotten around to really researching, and I’d like to get some others’ perspective on it: the RSA patent. Can we be sure it wouldn’t have been discovered without software patents? It seems like the nature of science and scientists to publish their findings. And isn’t science what RSA really is? Not invention, not even the “art” of programming, but science. Should we really be patenting science?

Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts.

In theory, yes. Practice however is a lot different. For example, Red Hat is being threatened at the moment over claims that I believe center around object db software (extracting from/sending to). I could be wrong, but I think that’s the gist of it. As was mentioned earlier, this is kind of like patenting “A drug ingested into the body, through being absorbed into the blood stream, which, when brought into contact with carcinogens, impedes their ability to grow in population, thus killing off the cancer.” Lame right? Because you haven’t really invented anything, and monopolized the mere idea of invention that could be. This kind of stuff fails obviousness and prior art, so it should be struck down in court.

However, getting back to RH, now they have to spend legal costs to fight this. And if the system keeps piling up, how many more companies will the same thing happen to? And that’s even if the court is sane. I admit, I haven’t really researched this, but isn’t the East Texas District infamous for upholding just about anything related to IP holders? It would nice if we could reform software and business method patents, but is there any pragmatic system that would be effective, given the situation?

Also, I’d like to take this chance to comment on something I read on this blog. Can’t remember who the author was, maybe Tim? He or she was saying that most classes of IP are protected by either copyright or patent. Art by copyright and invention by patent. Software is protected by both, however. Having software protected by copyright seems ok to me.

Tim, about your question about a good software patent, this is one I’ve thought about but never gotten around to really researching, and I’d like to get some others’ perspective on it: the RSA patent. Can we be sure it wouldn’t have been discovered without software patents? It seems like the nature of science and scientists to publish their findings. And isn’t science what RSA really is? Not invention, not even the “art” of programming, but science. Should we really be patenting science?

I think you just validated the anti-software-patents’ stance. It looks to me that the overhead of searching through existing patents (whether it’s to find something useful to license or simply to cover-your-posterior) has become more costly than simply building it yourself.

I have read several patents that seemed very ingenious to me. Patents that combined several old concepts in new ways to create products that did not exist before.

But you’re kind of making my point, Ted. If you are reading patents without a foundation to understand what you are reading, quite frankly you are part of the problem and not part of the solution. When I started reading patents I went beserko too. But it’s the enabling text. Read the enabling text.

The claims are crazy. I’ve read patents in the last couple of years that tried to claim database technology, for goodness sake.

You guys are all welcome to stop by my blog. I’m trying to keep it light, but serious posts are welcome.

Thanks for the good material over here! I’ve only been reading the RSS feed once a month, but I plan to bump it up some. I enjoyed the conversation.

You are correct. I have used this example on this board before. What your argument was, honestly, I did not check up on. I’ll try to do better.

“Pharmaceuticals deserve patents, but then again, a pharmaceutical company can’t patent the idea of an anti-inflammatory drug or the idea of an ant-cancer drug. Yet so very many software patents aim to patent the equivalent of an anti-inflammatory drug … heck lots of them basically try to patent the idea of a drug itself”

You are misreading the patents if you believe this. Yes, there are broad and bold claims. But the enabling text — the meat of the patent. Is about an instruction book for doing something. This instruction book must be specific — if it is generic the instructions have no value.

This is the thing you are missing. The claims for patents are all over the map and are a mess. But once you get to the litigation, you have to discover exactly what the patent enables — what it teaches that hasn’t been taught before.

Like I said, I think you’re confusing the nature of our litigious society, a misreading of the nature of the patents involved (due to a poor approval process and overly broad claims) and fears of “I can’t do anything” mainly coming from the big guys, not joe coder. (The big guys have deep pockets. Joe Coder does not) Basically the system is broken due to the fact that many patents are approved that shouldn’t be, and the claims are all over the place. These issues are all settled in litigation, and the truth will out. That’s not the way it is supposed to work, but it still works. The big companies end up paying for litigation that restricts the claims of bad patents granted by the government.

I’d like to ask a rhetorical question. How much have you guys studied exactly what patents are and how to get and use them? I know you know the horror stories, but do you really know how it all works? Before you announce the system broken beyond repair, it might be a good idea to really understand what you are talking about. Any patent attorneys here? I’ve read about a dozen books. I don’t know much, but I understand and agree that changes need to be made.

I’ll say it again, in the hopes it might sink in. The ability for anybody with a great idea and a few thousand bucks to stake an intellectual claim and ownership of an idea that improves society is a powerful force of innovation. This is true in all areas. Intellectual Property and intellectual solutions are where all of the societal value of the future is. That means that, as a society, we have to learn how to deal with abstract intellectual advancements. Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts. Let’s fix the problems we have, instead of over-generalizing. In my opinion, we have a great problem with lawsuits for a number of reasons: medical malpractice, smoking, selling fat foods, etc, that are also going way too far. If you think about it, as our society abstracts the value it has into intellectual concepts, we’re going to carry all the same old bad things we did before into the new age. It’s not just patents, it’s everything. We had some good models in the old paradigm. Perhaps they need tweaking a bit in the new one, but that’s okay.

I haven’t read a dozen books about the patent system, but I have read a lot of software patents, and I have yet to find one that struck me as meritorious. So I repeat my question: can you give me an example of a good software patent? If not, how can you be so sure they exist?

You are correct. I have used this example on this board before. What your argument was, honestly, I did not check up on. I’ll try to do better.

“Pharmaceuticals deserve patents, but then again, a pharmaceutical company can’t patent the idea of an anti-inflammatory drug or the idea of an ant-cancer drug. Yet so very many software patents aim to patent the equivalent of an anti-inflammatory drug … heck lots of them basically try to patent the idea of a drug itself”

You are misreading the patents if you believe this. Yes, there are broad and bold claims. But the enabling text — the meat of the patent. Is about an instruction book for doing something. This instruction book must be specific — if it is generic the instructions have no value.

This is the thing you are missing. The claims for patents are all over the map and are a mess. But once you get to the litigation, you have to discover exactly what the patent enables — what it teaches that hasn’t been taught before.

Like I said, I think you’re confusing the nature of our litigious society, a misreading of the nature of the patents involved (due to a poor approval process and overly broad claims) and fears of “I can’t do anything” mainly coming from the big guys, not joe coder. (The big guys have deep pockets. Joe Coder does not) Basically the system is broken due to the fact that many patents are approved that shouldn’t be, and the claims are all over the place. These issues are all settled in litigation, and the truth will out. That’s not the way it is supposed to work, but it still works. The big companies end up paying for litigation that restricts the claims of bad patents granted by the government.

I’d like to ask a rhetorical question. How much have you guys studied exactly what patents are and how to get and use them? I know you know the horror stories, but do you really know how it all works? Before you announce the system broken beyond repair, it might be a good idea to really understand what you are talking about. Any patent attorneys here? I’ve read about a dozen books. I don’t know much, but I understand and agree that changes need to be made.

I’ll say it again, in the hopes it might sink in. The ability for anybody with a great idea and a few thousand bucks to stake an intellectual claim and ownership of an idea that improves society is a powerful force of innovation. This is true in all areas. Intellectual Property and intellectual solutions are where all of the societal value of the future is. That means that, as a society, we have to learn how to deal with abstract intellectual advancements. Yes — currently everybody goes generic and the tests for obviousness and anticpation are poor. But these matters are corrected in the courts. Let’s fix the problems we have, instead of over-generalizing. In my opinion, we have a great problem with lawsuits for a number of reasons: medical malpractice, smoking, selling fat foods, etc, that are also going way too far. If you think about it, as our society abstracts the value it has into intellectual concepts, we’re going to carry all the same old bad things we did before into the new age. It’s not just patents, it’s everything. We had some good models in the old paradigm. Perhaps they need tweaking a bit in the new one, but that’s okay.

Tim,

I think you’re just asking the wrong question. Pharma appears to make one of the best cases for patents. The question should be:

What would a sui generis system for the pharmaceutical industry look like, consistent with the constitutional goal of advancing progress?

Daniel,

In my opinion, the American public would be better served by abolishing the entire patent system than by continuing on without serious patent reform. The current cost to American innovation and competitiveness from this out-of-control patent insanity is greater than the benefit.

Sorry.

First — do not confuse the free market and intellectual property. The open market rewards good businesspeople, not necessarily new ideas. The IP system we have is a trade between society at large and any individual or corporation. The trade is about encouraging innovation from the masses. A simple review of the history of IP can show how a lot of little guys were rewarded for teaching society something valuable. That principle, I believe, is not in question. Whether the trade is a good one is all about the application evaluation system, not the idea itself. You save the baby by draining the water! Not by throwing the whole thing out or forcing absolute decisions.

Anonymous — I must confess that I miss your point entirely. Are you trying to argue that business value is the same as intellectual value to a society? Sounds kind of short-sighted to me. The whole purpose is the decoupling of the two — the competitve forces are for the businessperson to wrestle, not the inventor. The guy who makes a collection of bottlecaps cure cancer doesn’t have to worry about any of those factors. He’s not supposed to.

It seems to me the whole “kill the software patents” movement is rather more emotional than intellectual, hence the absolutist positions, the horror stories, and the mis-reading of patent applications. One of those “read the book and join the movement!” kind of deals. Whatever floats your boat. I will add one example here for your consideration.

Let’s suppose that I just stepped off a time machine from the year 3400. I have, in my knowledge, the way to make computers truly sentient. So I sit down and write an instruction book on how to do it: how to assemble the various bits and bytes into a system that creates intelligence.

A couple of interesting things happen, almost immediately. First, whatever my instructions, they will involve re-assembly of obvious primitives: arrays, indexes, loops, CPUs, etc. So one group will immediately come out and say, “hey! There’s nothing new here! He’s just re-assembling old stuff and trying to pawn it off as something new! Patent troll!”

Likewise, whatever my approach, it will likely mirror other approaches that haven’t (and won’t for hundreds of years) be successful. But aside from that inconvenient point, those parties who were generally correct will be clamoring that their work “anticipated” my patent.

Still another group will read the patent, understand how it works (that’s the whole point) and claim that it’s really just a simple concept. Completely obvious. The best inventions always are — in retrospect.

At the end of the day, boys and girls, it’s all just ones and zeroes. The entire future advancement of our society will depend on ones and zeroes. Our economy, our military, our livlihoods, and our leisure. Simple stuff. Put together in more and more complex and useful ways. Now you can take the extreme, and rather anarchist, position and state that none of our intellectual future can be patented — that the social contract with inventors is over as far as software. Or you can try to find a better way to sort the BS from the good stuff.

Oddly enough, the argument I hear the most about letting the market decide it tends to reward huge businesses with business managers and market power. It’s a well known fact that large, resourceful entities can sell crap and stomp the little guy. If you really feel that mega-corporations can manage our future better, I’d like to hear that argument. I know, I know — the nimble, little, creative companies will innovate and survive. But let’s not kid ourselves: how many Pkzips do you think it takes to be a Microsoft? Do you really want the Microsofts of the world stealing whatever they want without any recourse at all?

Tim,

I think you’re just asking the wrong question. Pharma appears to make one of the best cases for patents. The question should be:

What would a sui generis system for the pharmaceutical industry look like, consistent with the constitutional goal of advancing progress?