Linked by Thom Holwerda on Mon 8th Oct 2012 09:24 UTC
Legal The failing US patent system is getting ever more mainstream - The New York Times is running a long and details piece on the failings of the system, especially in relation to the technology industry most of us hold so dearly. Most of the stuff in there isn't new to us - but there's two things in the article I want to highlight.
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silix
Member since:
2006-03-01

There's a lot of different suggestions out there, most better than what we have now. Here's mine:

http://www.osnews.com/story/26157/How_to_fix_the_patent_mess

in the previous piece you're advocating for the interim abolition of sw patents, thus for engineers in the sw field to become 2nd class citizens when it comes to intellectual property protection...

but suppose that you are intent on developing a product that you hope to sell, based on novel techniques and the application of interesting "new" mathematical theory - and that investigating the involved maths (eg, wavelets) and coming up with a working algorithm (ie inventing the solution for your chosen problem domain) takes you much more time and effort than making a prototype implementation..
now, think you'll agree it would be fair to get a bit of advantage for having done research and design on your own and for being the first to do so...
but copyright protects only the implementation's form and does nothing to stop anyone with a primer in the same maths from reimplementing the same techniques in another product (saving on research time, since you've done most of the job for him)

saying that copyright is enough for sw, you basically say that all research and design effort that goes into a sw product is worth nothing from an IP protection perspective, that it doesnt deserve protection being essentially a "free for everyone" thing, like maths, and that people working for sw houses on innovative solutions (notice, not innovative products) are wasting their time...
this has an interesting implication... now, if i'm working on something i deem innovative and that would be qualified for a patent (dont make the mistake to believe that all patenst are trivial ... there's VERY advanced stuff inside, just it's not newsworthy enough) but i know that what i'm working on won't gain me a competitive lead and won't allow me to control (at least to a certain extent) what my competitor put in their products...
what incentive do i have to come up with it first? what incentive do i have to come up with it at all?
to make significant design effort that my competitors can (and will) exploit to undercut my very product?
why dont i (say) ally with my competitor and agree to each sell owr own version of the same, uninnovative, commoditized algorithms?

Reply Parent Score: 0

benir0 Member since:
2006-07-26

I can understand your objections to the abolition of software patents. The rest of the suggestions he makes about patents in general could be applied to software patents, meaning: no software patents on trivial things and they only last a couple/few years. This as opposed to granting a patent on "selecting elements from a dynamically generated array" that lasts for 20 years. WTF? (The previous example is just that, not an actual case, though it is similar to patents I've seen referenced)

Reply Parent Score: 2

stimut Member since:
2012-10-08

I'm going to guess you aren't a software engineer.

Software innovation generally comes down to one thing: algorithms. The thing is, when you release a product, the algorithms are hidden. It's not like an engine, or a drug, where it can (fairly easily) be broken into its component parts to see how it's made.

Think of Google. When it came out, it was successful because of the algorithm development they did. It isn't protected by patents though. It's protected because only Google employees know the exact parameters (despite the overall idea of the algorithm being common knowledge).

What people call software patents have always been either trivial and obvious (such as forwarding packets in a router), or really design patents. That is, the outcome of the program and the way it works and interacts with the user. Think of the example of using a mapping program on a smartphone. Apple has patented the idea of searching for a contact within the mapping program so that the contact's address is shown. That's design and interaction. It's not an innovative algorithm that someone can develop a competing algorithm for. Now, no other company is allowed to search for users in their mapping program. At all. Ever. Or at least until the patent expires in a few decades.

I suppose what I'm trying to say is that genuine software innovation is already protected by the fact that it is secret, and all the other "software patents" that exist today, should probably fall into a different area (like design patents) and the idea of software patents be thrown out.

Reply Parent Score: 6

silix Member since:
2006-03-01

I'm going to guess you aren't a software engineer.

bad guess then, because i'm actually a sw engineer
just, one who doesnt believe in security by obscurity but OTOH believes that sw development methods (see later) and the possbility to protect IP are orthogonal matters...

Software innovation generally comes down to one thing: algorithms. The thing is, when you release a product, the algorithms are hidden.

the thing is, not always, not forever:
there's reverse engineering;
there are code leaks;
and there's open source
let's say i develop a product using a (more or less) public source tree to suit a business model that i may chosen (based on expertise and customisation rather than initial license fees) and to involve and allow other parties to cooperate
this doesnt mean i alienate any rights to patent the techniques that i use for the internals of the product, or that anyone who happens to have a look at the code and learn about them, is ok with reusing them in his own product...

Think of Google. When it came out, it was successful because of the algorithm development they did. It isn't protected by patents though. It's protected because only Google employees know the exact parameters (despite the overall idea of the algorithm being common knowledge).

google's ip has been protected by obscurity, shall we assume it's the only possible way for anyone else?

What people call software patents have always been either trivial and obvious (such as forwarding packets in a router)

there's no such thing as obvious stuff, otherwise it would have existed since the dawn of time - but actually it hasnt, and took some guy (who most likely didnt think he was doing something obvious at the time) to materialize
but, there exist millions of sw patents, and though many are about stuff that by today's standard we dismiss as trivial or appear as a mere application of an everyday "something" to the IT field, most of them trivial are not

or really design patents. That is, the outcome of the program and the way it works and interacts with the user.

design patents are mostly about the aesthetics of a product, technical solutions (inventions), which also are fit for protection, fall under a different category...
more or less like about cars... the bodywork shape is one thing, the way the chassis is made is another(or you think hydroforming, or more recently, aluminum/steel welding processes are not patented with all the research that has gone into them?)

It's not an innovative algorithm that someone can develop a competing algorithm for.

as frivolous or useful as it may be (like all *inventions* in any product field) it's a sw *invention* that noone else had before (then it's not obvious) anyway, and deserves protection as such...

Now, no other company is allowed to search for users in their mapping program. At all. Ever.

unless the patent is negotiated for licensing and royalties are paid, usually... why does nobody ever take this option into consideration?

Or at least until the patent expires in a few decades.

so if the several-decades protection time window is (rightly) too long for the sw field, the patent system shall be abolished altogether instead of thinking about a shorter patent lifetime?

I suppose what I'm trying to say is that genuine software innovation is already protected by the fact that it is secret

except when it's not..

and all the other "software patents" that exist today, should probably fall into a different area (like design patents) and the idea of software patents be thrown out.

but since the interaction model accounts for only a part of a program's development effort, you'd be leaving behind those working on the rest...

Edited 2012-10-08 17:04 UTC

Reply Parent Score: 2

JAlexoid Member since:
2009-05-19

in the previous piece you're advocating for the interim abolition of sw patents, thus for engineers in the sw field to become 2nd class citizens when it comes to intellectual property protection...

So are all artists, singers, writers and performers. You know... the people that have copyright protection and not patent protection.

Oh wait... but they're not second class citizens!!!

investigating the involved maths

Yep. Patenting the application of maths... What's next? Patents on using the plus sign to add two values of cash deposit value and account value in the bank? Brillant! You should become a patent lawyer.

what incentive do i have to come up with it first? what incentive do i have to come up with it at all?

Being first to market?
On the other hand, what incentive does an artist have creating a new genre? I meran, someone will take it an just copy it!!! Oh the horror!!!

Reply Parent Score: 3