Linked by Thom Holwerda on Tue 19th Jul 2011 17:09 UTC
Google For the first time, Google has opened its mouth against the patent trolling by Apple (and by proxy, Microsoft) against Android manufacturers. By way of Eric Schmidt, Google's chairman, the company took stand against the legal actions, and stated they aren't too worried. If need be, Google will ensure HTC doesn't lose the patent case against Apple.
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RE[2]: How can this be fixed?
by cranfordio on Tue 19th Jul 2011 20:13 UTC in reply to "RE: How can this be fixed?"
cranfordio
Member since:
2005-11-10

I guess this is where I get confused. If software is only covered under copyright than how does it protect the investment made into developing the software? One could easily reverse engineer the software then change the code (variable names, language, interface, etc.) and then just release the software as their own. It seems that it would be hard to prove that they reverse engineered your software and then rewrote it, and since the code would then visually be different it wouldn't violate copyright.

Lets say I developed software that could take the genome of two people and determine any health issues their offspring could potentially encounter. Lets say I spent 100,000 man hours developing this software at a cost of $50/hour. So now I have spent $5 million on this software and believe I could sell 100,000 copies. So I charge $100/copy for the software. Someone else comes along and reverse engineers my software and rewrites some of the code. They spend about 500 man hours doing so at the same cost so they are out only $25,000. They sell the software for $25/copy and 80,000 potential customers buy from them because it is cheaper and I am out $3 million and they have made $1.975 million.

How does copyright protect me? I can't prove they copied the software unless they outright admit it. This is a situation where I feel patents would protect my investment. So I do feel that just saying there should be no software patents is a lazy excuse.

Of course I do feel the system is broken and what I would like to see is a real solution to fixing it, I am sure someone out there has put some real thought into this.

Reply Parent Score: 1

RE[3]: How can this be fixed?
by Gunderwo on Tue 19th Jul 2011 20:46 in reply to "RE[2]: How can this be fixed?"
Gunderwo Member since:
2006-01-03

I'm guessing you haven't done a lot of software development. How exactly are you planning to get the source code from a compiled binary.

You can try and decompile it, but any non trivial software has internal documentation, variable, procedure and function names that make sense, design patterns are followed, often unit tests are an important part that isn't even included. All these things are integral to be able to understand how a piece of software works, to maintain it and improve it.

Any piece of software that doesn't include the above listed things becomes incredibly difficult to do anything with. It's the lack of these sort of things that causes real developers to want to rewrite working code because of the maintenance nightmare that crappy code, lack of documentation and no test plan causes.

Not only that, even if you did what you're suggesting one could likely prove that it actually is a copy of your software when weird bugs popup that are exactly the same. What you're suggesting would also take a lot of time to do, possibly as much as actually writing it from scratch so even then the original product would be first to market thus would be improved on any copy simply by continuing to improve their own software.

So maybe you should try developing more than a couple crappy websites and a few fart apps before you comment on how real software works.

Reply Parent Score: 6

cranfordio Member since:
2005-11-10

I am not a developer, not even a website or fart app developer. But I am a mature adult that is trying to find a real solution to a real problem.

This is the biggest problem I see with trying to find answers, is that as soon as someone doesn't like what you have to say, or thinks you are stupid, instead of trying to educate someone in a mature fashion, you insult them instead.

Reply Parent Score: 2

organgtool Member since:
2010-02-25

If software is only covered under copyright

Just to be clear, software is currently covered under copyright and patents. I am suggesting that copyright protection alone is more than adequate protection.
One could easily reverse engineer the software then change the code (variable names, language, interface, etc.) and then just release the software as their own.

This has happened numerous times before, especially with companies infringing on code from open source projects. There are several ways to prove your case against these companies. One way is to use analytical software that compares the compiled binaries of your software and the alleged infringing software. For the amount of work it would take to fool the analysis software, it would take less effort to write your own software. Another way to prove their code was copied is to demonstrate obscure bugs in your software that also occur in the infringing software. While this is circumstantial evidence, several common bugs would be all it takes to convince a judge that the code infringes. At that point, you are entitled up to $150,000 per copy that the infringing party distributed.
This is a situation where I feel patents would protect my investment. So I do feel that just saying there should be no software patents is a lazy excuse.

In your scenario, someone else who attempted to write the same kind of software from scratch, using none of your code and incurring all of their own development costs, would be found to infringe on your patent. That is not fair to other developers who are not in the game of copying code. They should be free to spend their own time and money developing a competing product. The trick is to protect the implementation without granting a monopoly on the concept itself and that is what copyright protection does.

Reply Parent Score: 6

cranfordio Member since:
2005-11-10

Thank you for this answer. It definitely helps me understand this better.

Reply Parent Score: 1

RE[4]: How can this be fixed?
by Not2Sure on Tue 19th Jul 2011 22:05 in reply to "RE[3]: How can this be fixed?"
Not2Sure Member since:
2009-12-07

Copyright protection of source code affords you absolutely no protection in actual litigation scenarios.

If you believe the construction of software is just the creation of source code artifacts and that is the only value, then you are correct. Copyright is all you would need.

But it seems to me you have so seriously devalued your own contribution that you are expendable. Not every absurd social network website or web 2.0 (no wait 3.0!) deserves patent protection. They all deserve copyright protection.

Then again, just about anyone can produce an absurd social network website too.

There is a class of software deserving of patent protection in order to recoup the costs of its construction. All of the costs not just the cost of you typing it down.

Reply Parent Score: 1

RE[4]: How can this be fixed?
by galvanash on Wed 20th Jul 2011 06:24 in reply to "RE[3]: How can this be fixed?"
galvanash Member since:
2006-01-25

Good answer ;) I'd mod you up but I can't (already posted).

Reply Parent Score: 2

RE[3]: How can this be fixed?
by JAlexoid on Tue 19th Jul 2011 20:58 in reply to "RE[2]: How can this be fixed?"
JAlexoid Member since:
2009-05-19

With closed source software it's as hard to prove that someone infringes on your patent (With the exception of UI patents and patents that relate to data formats)

Next your example is quite ridiculous. Only the medical data linking DNA segments to genetic disorders would run you into the millions. Try a better example.
Otherwise, how will you be sure that someone didn't come up with the same algorithm at identifying the same genetic disorder issues?

How long did it take you to implement a feature is irrelevant to patentability. Why? It's the invention of something new that counts. And because some things are trivial and obvious while being exceptionally complicated in implementation.(Otherwise every developer would have their own OS for their own software)


In any case your example just tells me one of three things:
- you didn't think though you example
- you don't know what you are talking about
- you're an a****e that wants to write a piece of software and so no one else can write anything remotely similar to it... and get rich. (entitlement of compensation)

Reply Parent Score: 4

RE[3]: How can this be fixed?
by MollyC on Wed 20th Jul 2011 01:17 in reply to "RE[2]: How can this be fixed?"
MollyC Member since:
2006-07-04

In the scenario you describe, you didn't really create anything. All you did was spend $5 million discovering a math equation that already existed, so you deserve no protection. Well, that's the absurd position of the "there should be no software patents because software is math" proponents would have folks believe.

------------------------------
As for a solution to fix the system, how about:
Have a panel of experts (software experts, not a clueless jury or clueless judge) determine the worth of a software patent (and they could very well decide that the worth is zero), and based on their decision, the patent holder would license the patent for a corresponding fee. No patent holder could deny licensing the patent to anyone that was willing to pay the fee. And every 2 years, the patent can be reevaluated by the panel of experts to determine if the assigned worth of the patent should be raised or lowered, and the resulting licensing fee would be adjusted accordingly. All decisions by the panel of experts would be binding; there would be no involvement of juries, judges, or lawyers.

Now, in the case that some small time (or even big time) developer happens to run afoul of a patent by accident (i.e. the developer creates some software, not realizing that an existing patent covers a subset of said software's functionality), ... well, I have to think on that! lol I just wrote all of the above from the top of my head, so I don't have a fully thought out solution that addresses all of the current system's problems. :p

Reply Parent Score: 2

RE[4]: How can this be fixed?
by Alfman on Wed 20th Jul 2011 02:12 in reply to "RE[3]: How can this be fixed?"
Alfman Member since:
2011-01-28

MollyC,

"Well, that's the absurd position of the 'there should be no software patents because software is math' proponents would have folks believe."

Why exactly is that position absurd if it's true?

I argue it's not just math which shouldn't be patentable, but philosophy, logic, etc. Computer science is all of those.

Hypothetically, are you ok with patent monopolies on math?

Reply Parent Score: 2

RE[4]: How can this be fixed?
by molnarcs on Wed 20th Jul 2011 06:11 in reply to "RE[3]: How can this be fixed?"
molnarcs Member since:
2005-09-10


As for a solution to fix the system, how about:
Have a panel of experts (software experts, not a clueless jury or clueless judge) determine the worth of a software patent (and they could very well decide that the worth is zero), and based on their decision, the patent holder would license the patent for a corresponding fee. No patent holder could deny licensing the patent to anyone that was willing to pay the fee. And every 2 years, the patent can be reevaluated by the panel of experts to determine if the assigned worth of the patent should be raised or lowered, and the resulting licensing fee would be adjusted accordingly. All decisions by the panel of experts would be binding; there would be no involvement of juries, judges, or lawyers.


You realize that it would be a nightmare setting up such a panel, right? Who would be your "software experts?" I assume programmers. Why would any talented software developer sit in a bureaucratic panel instead of doing what he was trained to do... writing software. You underestimate the sheer number of ideas/software patents that UPSTO approves on a daily basis. Not only that, but you would double the work for each patent. Who would pay for the menpower to do that? And where would all those "software experts" come from? For one, nobody would accept their authority if they had any affiliation with (big or small) patent holders.


Now, in the case that some small time (or even big time) developer happens to run afoul of a patent by accident (i.e. the developer creates some software, not realizing that an existing patent covers a subset of said software's functionality), ... well, I have to think on that! lol I just wrote all of the above from the top of my head, so I don't have a fully thought out solution that addresses all of the current system's problems. :p


That's is at the heart of the problem. I'm not surprised that you have to think about that, since now we have a situation where in the US every piece of software written would fall under a patent or two (or a hundred perhaps). Linux is a good example - Linus explicitly discourages programmers from looking at software patents, but you can bet (and MS is rather keen on communicating this) that Linux violates several hundred software patents. There you have an example for a Big Player. As to small ones, you have the Lodsys lawsuits.

Now I respect that you are trying to be helpful here - but if you're not lazy, read up on some of the software patents MS, Apple and Oracle are waving in these lawsuits. You'll realize that there is simply no way around them. Furthermore, you just need to think about the massive profits companies like Apple and Microsoft. They didn't earn those profits because of software patents. They earned those profits because they sold products that people bought.

Apple is sitting on more than 50 billion right now. If there were no software patents whatsoever, they would still have that 50 billion. I think that kind of money is incentive enough for any company to invest in software development. In IT, being first to market is incredibly important. It's also the fastest moving industry. People don't buy software that is 2 years old (except when they don't have any choice - see long development cycle after Windows XP was released). The only solution I can see is either 1) abolish software patents, for not a single shred of evidence supports that they are beneficial (on the contrary!) 2) limit software patents to a time period no longer than 6-9 months. Anything longer does not make sense, considering the quick ROI ratio of successful products.

Edited 2011-07-20 06:12 UTC

Reply Parent Score: 3