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?
#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?
7 Ways To Ruin A Technological Revolution24. July, 2011
“7 Ways To Ruin A Technological Revolution” is a Google Tech Talk by James Boyle in which he shows honest and sincere ways to stifle technological progress. And unlike him, I’m not ironic. A lot of stifling happens because we deem some things too dangerous. His 7 ways are:
Some thoughts on #4 (after 0:18:00): Our society is built on sharing. Or did you pay back the $200’000 which your parents invested in raising you? Countless hours wasted playing with you as toddler which they could have spent at work instead. All the money spent on clothes that you didn’t want to wear anyway. The water polluted washing them which could have been used to grow food for more money.
“It’s commercial use if you get for free what you otherwise would have to pay for.” (0:20:16) If companies and IP policy makers had their say, you’d have to pay your girlfriend for a date just like for a prostitute. What else is date than a perfect business opportunity wasted because of “anti-capitalistic” hormones – or so some people seem to think. While we’re at it, let’s ask money for Christmas presents, too! Talk to a friend? It’s Cheap Friday, so it’s only $25 instead of $50/hr.
Such a view of the world ignores the benefits of these actions. When an author writes a new book, how much money goes back to the people who invented the written word? The printing press or the Internet? Who taught the author to write? Who sparked new ideas in his mind? So we have to be unjust somewhere but are we unjust in the right place?
Or maybe I’m wrong. At the end of his speech around 0:35:50 he says something interesting: “It is scary to me that the technologies that would enable the Google equivalent in the next technological cycle are being developed under the conditions that I have described. Because you would have to be an insane optimist to think that none of that is going to get screwed up by the processes that I described and I’m far from being an optimist.”
It’s interesting because we don’t know what will work and what will fail. Maybe this kind of resistance is necessary to separate good ideas from bad ones: Only a really good idea can overcome these obstacles. It has to be overwhelming enough to change the world. Since we can’t tell which idea should win, this might be the only way to weed the bad ones out.
Scary thought: Maybe superior technology like the Amiga didn’t change the world because it didn’t have what it takes – whatever that might be. All I can say from this point in time: We don’t have an Amiga on every desk, we have a PC on every desk. Steve Jobs knows his stuff but there is no Apple computer on every desk either. But there is an iPhone on (almost) every desk. Not a Windows phone. So the formula is Windows + PC == success, not Microsoft == success.
That said, not all is lost. I haven’t put my hands on an Amiga computer for more than a decade but I use the skills every day that I acquired with its beautiful OS. Amiga is dead, today’s hackers have Linux.
I think the good news is that the bad guys eventually fail because there is no limit to their greed. Eventually, they manage to upset even their most die hard supporters. Sony harassed Georg Hotz. Nothing happened. Sony lost 300 million customer records. The US government shows up to ask some serious questions. And the Zurich insurance refuses to cover the damages. Hm…
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