The patent wars rage on. Eolas, a company that before won US$585 million from Microsoft in 2003 in a suit that challenged the use of ActiveX and AJAX, is now after twenty-three separate companies allegedly because their precious patent was spoiled by all of them.
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Member since:2006-01-25
This is all opinion of course, and opinions vary, but imo there are some concrete differences that imo should be taken into account:
1. Software is considered an artistic expression, and as such falls under copyright law. Copyright law already offers quite a bit of protection, some (including me) think the protection it offers is adequate enough in light of the nature of software.
2. Software IS NOT in and of itself an implementation of anything. Only a running program is an implementation, and to "run" it must ALSO instrument some form of hardware. Thus the actual implementation is a combination of the two. It is therefore impossible to create and then claim ownership of a complete software device unless you are the creator of the "complete" device, i.e. unless you also created the hardware. This point of view mirrors reality - to build a piece of hardware you must first design it (the software) and then implement it (implement the design - i.e. build it). If patent law had an actual implementation requirement the distinction would be quite clear - unfortunately it does not so we are left with this ambiguity...
3. Software IS in and of itself an idea, NOT an expression of an idea. It has no physical representation, it has no "hard" implementation cost, and most uniquely, it has no reproduction cost. It is simply an idea worded in the rigid fashion defined by the hardware it will run on. Patents are not meant to protect ideas, they are meant to offer a limited monopoly for an "expression" of an idea - and while this definition is coerced into fitting software by the law, I don't think it fits very well.
4. The VAST majority of software patents are extremely obvious - to people who write software... Problematically, software patents are not reviewed by people who write software. No need to go further into this one, suffice to say this particular interface skew causes the bulk of the real world problems.
Member since:2006-01-10
1. Copyright is one aspect. But it doesn't protect someone from copying your idea, which is the point of a patent. I wouldn't agree with the statement that software is artistic expression. It's design like any other field of engineering.
2/3 - You seem to be hung up on this notion of physical versus software. I just don't see the difference. Let us suppose a smart phone manufacturer comes up new keyboard design. The keys are triangular and they're arranged in a different manner. Does it matter if the keyboard is physical or implemented virtually? The innovation is the layout and design.
Now suppose Microsoft comes up with this new layout, does it matter if all they sell is the OS that contains this new layout?
The fact the the reproduction costs are 0 would actually support software patents. Since the costs are 0, the innovator doesn't have much protection from startup costs... things that typically delay other companies.
4. Yeah, most software patents are obvious to people in software... and most patents in mechanical or electrical or chemical engineering are obvious to those people in the same way.
The main difference is how accessible and new software is. If as many people played with chemistry as played with software, everyone would be infringing on chemical engineering patents and crying about it the same.
My brother works in chemical research... same problems... obvious overly broad patents that any competent person in the field thinks of, but first to get there gets the prize 
Which is why I say the problem is not software patents. The problem is patents in general. I don't know how to resolve the issue as you start of with complex technical terms then run that through legal obfuscation... and you expect patent examiners to sift through all that? It's not happening.
Member since:2005-07-06
So maybe the solution to the problem is for the patent office to employ a group of full time programmers to consult on matters of patent applications as for the validity of the application? Wouldn't that imply a degree of common sense. I doubt it'll happen though - you might end up having large numbers of patents being thrown out in a mass audit.
Member since:2008-10-30
The main difference is the scope of the patents. For hardware patents you have to be very specific if you want the patent granted in the first place and even more specific if you want to be able to defend it in court.
The software patents that has been granted under the US patent system are often grandiose general patents that can cause great problems for the software industry like:
- Patent for extracting data from a database and putting it into an excel spreadsheet.
- Patent for skinning an application.
- Patent for multiple desktops on a computer.
- etc etc.
This kind of patents are not granted in order to protect "inventions" but are rooted in US trade politics and exists to hinder free trade in the high tech sector.
Other high tech industries like bio and medical are in the same situation. The US is using patent system to block free trade by allowing US companies to patent highly suspect "inventions". Often causing more problems for other US companies than the original intended target (foreign companies).
It brings back memories of the way the Japanese patent system worked in the 1970's. (a Japanese company would buy a US or European product, patent everything about that product in Japan and hence block import of that specific product).
The EU found out that by accepting software patents but being late to the game they would be in more trouble than by rejecting the concept all together of these patents (however they do play the game in other high tech areas). Lately they have started to hit back in other ways (i.e. "Consumer Protection") to recover lost trade income. I.e. you hit our high tech company, we hit right back at your high tech company...
A key problem from a trade and political standpoint is that software patents are today being used to reduce interoperability between products, and therefore hinders innovation rather than fosters innovation. Patents on file formats and network protocols for example are obviously counter productive to competition and free trade, since the only use (there is no invention involved at all) for this kind of patents are to remove or reduce interoperability.
For Free software this poses problems on many levels:
First by increasing the cost of distribution (you have to do patent reviews of your own and others code).
Second by limiting the possibility of alternatives (file formats etc. etc.) and in most cases free software is the segment follower not the leader.
Third by introducing the possibility licensing costs (however small) into the equation it will reduce the possibility of exchanging and sharing software for "free".
In this case the Eolas patents are actually in the interest of the companies being sued, as long as these companies gets a settlement guarantee that their smaller competitors (without an established income vehicle) has to pay as well. This will remove competitive pressure from these incumbent players and enforce their established position, better than innovation or service development ever could.
Member since:
2006-01-10
I really don't get the great difference with software versus hardware patents.
I can definitely see people having problems with patents being granted too easily, or having problems with patents in general... but I cannot fathom why people single out software patents.
Have people looked at physical patents? They're not exactly mind blowing brilliant. I'm pretty sure if you looked the patents for electric cars, a lot of them are pretty dubious. The difference being that those industries are used to working with patents, licensing, going with other technologies... Because a lot of the high tech (software/web) is new, the development is very fast, so there's lots of patent issues and our culture is much more legal dominated.
Or we look at how Intel's hardware patents have essentially granted it a monopoly over its x86 instruction set... Could you imagine the outrage if Microsoft patented the windows API or C#, to make it impossible to make a binary compatible program?
This is not patenting an algorithm or anything. It's rather specific as to a web browser embedding content...
Obvious... yeah... But so are many patents in electrical or chemical engineering or mechanical engineering.
but not really an issue with respect to software patents. It's just an issue of how patents can be too general.
Edited 2009-10-07 00:03 UTC