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:2006-01-10
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:2006-01-25
Thats the problem with your point of view on this. Patents do not and are not supposed to protect ideas. Patently law specifically _disallows_ patenting of an idea. You can only patent inventions. The issue boils down to whether you consider software an idea or an invention. That gets fuzzy - there is a legal definition of invention and its applicability to software is debatable imo.
Regardless, I agree there is a problem with patents overall, not just software. But software particularly seems to amplify the problem.
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:
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.