Michael Risch wrote a longer piece on software patents and why we should try to make software patents work: Curing the Problem of Software Patents
Here is my answer:
I think the main problem with the patent system isn’t the ideas behind but that some people have started to abuse it. And those who didn’t are being driven to join the brawl for no other reason than protect themselves.
You quoted “Software is hardware in every sense that matters for patents.” Let’s have a deeper look at that. Software is a formalized way to write recipes (as in cooking). Software development is a translation process (as in language interpreter). We take ideas from customers and turn them into detailed instructions to be executed by a moron. A human could do it but since it would be boring, we use a computer. Note that software isn’t mathematics – it’s language (as in English). It’s very limited (because the computer is so very dumb) but we’re more authors than mathematicians.
Now, my questions are:
- Can you patent the work of an online interpreter?
- How about the words that come out of her/his mouth?
- What about the words that she/he hears and translates?
My answers:
#1: No. The process of translating something is a craft. Crafts as such are not patentable.
#2: Since the interpreter doesn’t add anything of value to the input (they should stay true to what is given them), the output can’t be more or less than the input. It’s the input in another form but by itself, it doesn’t make the input more or less patentable.
#3 This leads to the question: Can you patent a recipe?
And the answer here is, sadly, yes. Which leads to the question: Can you patent any recipe?
No: The recipe has to be, well, “outstanding” in some way. Unfortunately, there is no universal standard what “outstanding” means. When I teach a newbie, they will think my methods are outstanding but they are just by relative comparison of what they know and what I know.
Since “outstanding” doesn’t seem to be a good tool to make a decision, what else do we have?
Damage. One of the roots of patent law is the idea to bring more justice to the world. It was invented for the specific purpose to protect the work of “helpless” inventors so they wouldn’t be ripped off all the time.
This makes sense if you, say, develop a new medicine. As of today, you need to spend around one billion dollars for a new medicine. Without patent law, it simply wouldn’t make sense for corporations to take the involved risks, so it makes sense to apply it here.
But software patents are in a completely different league. They cost $20’000 or less to produce and they can cause hundreds of billions of damage when they are used as a weapon – which is the sole and main purpose of software patents.
Since software patents are used solely to damage society as a whole (forcing companies to invest in them, costs of defending yourself against a lawsuit no matter if it’s justified or not, costs of canceling abusive patents, costs in lost revenue when you can’t sell your product because a competitor wants more market share), they need to be outlawed.
If you fail in this task, then no new computer related products will be sold in the USA by … well … 2013 because everyone will be suing everyone and all money will flow into courts and to patent lawyers. No more software development will happen because it’s just too expensive/dangerous. Maybe someone will find a patent to “display text remotely” and take down Google or the whole Internet (at least the part that runs in the USA).
The lawsuits between Apple and Samsung should be a warning shot. These only exist to give one company a bigger market share in a saturated market. Better product doesn’t count nor how “inventive” it is. It’s just the logical, inevitable conclusion what happens when all players follow the rules that we made.
Or Oracle vs. Google. Oracle came in demanding several billion dollars and got nothing. But if they had a different judge, the outcome could have been completely different. Is that what we want?
This seems to damage companies like Swype (see “An Example” in his post). But does it really?
First of all, someone could copy their idea. But customers would only buy the copy when it was better for most of them. Do we really want to protect something that most people think worse?
Copying an idea usually leads to a new, very similar but still different idea. The “thief” adds his own wisdom to it. We call that process “learning”. Isn’t that something that we should support?
If Swype can’t patent their idea, they can still make a product and sell it. If they fail, some money will be lost. But if they succeed, no other company can sue them for billions of dollars for no other reason than to slow them down. Isn’t that better than the other way around?
We say that the Internet Year is only three months. New ideas spring up so quickly by now that the old, sluggish patent system can never keep up. Do we want to slow down progress (might be a good idea) *and* feed the trolls? How much is an idea worth protecting if it’s outdated in 9 months?
How much more money will we make/safe if software patents are outlawed and all this money goes back into R&D?
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How to Fix the Patent System. Really. I’d prefer to abolish all business process and software patents. However, if we can’t, lets tax patents like “real” property (patent lawyers often claim IP is “real” property). Just as taxes on “real” property encourage owners to develop their land, the tax would encourage individuals to develop their ideas. Let’s say the patent office charges patent holders $1,000 per year to maintain a patent. If the patent holder doesn’t like the fee, they could sell the patent, or release it to the public domain. Oh, and that tax would be a nice boost for our nation’s tax revenue. For real innovators, it’s no big deal. Its a small sum for a for a feature from which they are certainly betting a whole lot more to gain profit. For the trolls and squatters, it provides a carrying cost that will cause them to trim their portfolios significantly. And it doesn’t rely on patent inspectors to have cognitive capabilities because the market would correct itself. This would profoundly improve the patent situation, derail Intellectual Ventures and other trolls, and realign the skills of thousand of patent lawyers to valuable contributions to society. A perfect trifecta!
There is already a “maintenance” fee; but it’s relatively low, especially compared to the amount of money you can win by forcing a big company into court.
So $1,000 is probably too low for big companies and trolls. OTOH, it’s too much for small time inventors.
I often feel that all the simple problems have been solved which, by definition, leaves us with the complex ones.
Hi – I discovered your blog through your Stack Overflow account (and the amazingly high reputation score on there – WOW).
I literally just finished going over the results of a patent search for a software patent I’m working on, so this post was timely.
In spirit, I agree wholeheartedly. The Google/Apple fight is sickening, and a system that was designed to foster innovation has clearly been mutated into an obstruction.
The solution that I’ve pined for would be the following: limit damages for cases of infringement by a factor of the amount required to develop a working prototype of the invention (or relevant claim). Let’s say 10x the amount required to develop.
This would do two things. (1) Get rid of patents like “Slide to Unlock” which don’t serve anyone, are far from “non-obvious” given the conditions of a touch interface, and probably took about 2 days max to think up. And (2) Require much better bookkeeping by inventors to both show their process of development and the degree of work required to patent, including actually developing a prototype, which would hopefully reduce or hamper the work of patent trolls, and ultimately lead to more specific patents (because I’d want to show more work going into it).
The problem with total eradication is that then it becomes a matter of “who can raise more money” for startups. If I’m creating something neat, and someone else sees that, has better VC connections, and raises a bunch of money doing the same exact thing, it’s very difficult to compete. If I’ve created something novel and unique, that took a good amount of time to get working, I should be somewhat protected.
I feel like the absence of that protection, specifically for software, would result in a much harsher stance toward open source by companies in competitive markets. If I can’t protect the core of WHAT I’m doing, it necessitates keeping secret HOW I’m doing it. And that would suck, as the rate of our industry’s development has largely been fueled by the openness around “how” and the tools to do so.
I’d also love to see some sort of limitation in awarding damages to non-competitive uses of the patent. If someone is using your invention to do something you never even thought of doing yourself, it’s really lame that you’d be able to shut them down.
Most of my thinking exists in the actual lawsuit portion of the issue though. Reduce the profitability of broad, cheap, and generalized patents, reduce the target surface of potential victims, and you might just end up with a system working as intended.
Hi Josh,
I like the concept of “took a good amount of time to get working”. But then comes the usual question: Is there really no way to abuse that? At first glance, it should be pretty good.
Especially when we add “… the guy who currently owns the patent.” That would make patents worthless to sell and make the original inventors much more valuable.
What I don’t agree is “no protection at all would make it harsher for open source”. Currently, any company can shut down any OSS project because they all violate one patent or another. And as someone hurt by that, I know how painful it is to work around some braindead patent just because you can’t shoot it down.
Keeping secrets is fine with me – companies don’t tell me how their software works anyway. And since so many new, great ideas appear all over the globe in the OSS community, I don’t see how that can possibly hurt anyone but legal departments and lawyers. Also companies can’t stop inventing new ideas just because they can’t “protect” them with patents anymore – that would be suicide.
On top of that, software patents don’t tell anything either – specialists work really hard to turn them into mindbogging gibberish for fear that someone might “steal” the idea by understanding what the patent is all about. Doesn’t sound healthy to me.
I guess my point is this: A lot of lawyers and companies try to sell me the idea that software patents can have some value but I really don’t see it. Sure, they pay your bills. And they have to be used as weapons in economic warfare against competitors that simply make better products than you. But what other value do they have?