WebMink
Simon Phipps's personal commentary

"While the progress of the software industry's know-how was only being advanced by corporations"
It never was. most early advances were made in universities, by people like Donald Knuth, C.A.R Hoare, and Edsger Dijkstra.
 

While I recognise the work they have done, most of the progress made since software patents have been a reality has sprung from business (although rarely from huge corporations).
 

I've always stuggled with how we allow one person to patent built on a device that often itself covered by one or more patents.

Company A creates general purpose machine and patents it..

Company B patents a set of special instructions for my machine that cover it's largest potential market...

Company B has built a moat and pay-bridge to use Company A's machine.

I don't get it.
 

I have a lot of trouble with patents in general and software patents in particular. I write software for a living, sometime for myself and sometime for corporations.

If a patent is to spur innovation, what is the mechanism that makes it work? I can see the traditional use of a patent. It motivates someone to invest a lot to bring a product to market and provides a temporary monopoly to recupe the cost and provide a profit. I get that.

I don't see how minor parts of the above deserve to be patented on their own. When you can patent any small idea it stifles innovation because nobody knows what is safe to use in their product.

I also don't see why patents should be licensed to 3rd parties. The patent protects you so you can use it to make money, not grants others a license to use it so they can make money. This just makes patents a way to control and stifle innovation.

On to software. I see absolutely no reason, whatever, to patent software, methods or concepts. First off, methods and concepts are the building blocks of software. There are books on this for solving virtually all programming problems. And yet a concept of clicking on a link in a web page has a patent. How obvious can you get? Really!

Software is not physical production. People don't buy software, they license the right to use the software and maybe pay for some physical media and manuals. This is not manufacturing, this is publishing. In fact virtually all software is protected by copyright. Where do patents fit in? How do patents spur innovation? They get in the way and stifle innovation. Look at the RIM mess. That is fundamentally wrong. The people that own the patent and have not done much to make money from it beyond suing RIM are making a lot of money at a cost to all users.

It is for practical purposes impossible to write a significant program that does not infringe some patent. Whether or not you get sued depends on the owner finding out and doing something about it. This is crazy. How can it help spur innovation?

I think when it comes to software, we should rely on copyright. Period. Even there we are fighting a losing battle. It is impossible to enforce your copyright in this age of the internet. You can damage a lot of peoples lives but you can't make people stop copying. Can't be done.
 

"This for me is the heart of the matter about software patents... today's software patents breach the social contract on which the concept of a patent is based."

The heart of the matter for me - the question of whether software inventions are justifiably patentable or not - is properly an economic question and the answer to that question is fairly clear. Exactly how the 4 or 5 component economic rationale breaks down in the case of software patents is important but for all I know they could all be written in Latin and still achieve their goal (the promotion of progress in science...). After all, who reads them anyway?

I do agree that the perceived dividing line between software and hardware is irrelevant: a software invention implemented in hardware is still a software invention and as Jonas Maebe of the FFII has explained, excluding from patentability those process claims which can be rewritten as program claims would rule out most software patents quite satisfactorily.
 

In particular for everyone following the policy debates that unfold in both the U.S. & Europe, OUP's International Journal of Law and Information Technology has just published two comprehensive articles on patent law by these authors.
 

A patent is designed to reward large investments. When it takes longer to write the patent than it takes after one has gotten into the proper frame of mind, to come up with the idea behind it and then produce a product which makes use of it, there's a serious problem.

It's true the divide between software and hardware is shrinking. In my opinion, that means there should be less that's patentable, not more.

Basically, hardware is tough. Or it used to be. Most of it still is.

Any genius with VLSI design software can produce a radical improvement in chip design - but it requires a billion dollar fab to make use of it. The independant chip designer would therefore depend on patent protection to make money.

Any genius with a compiler can produce an entire product in less time than it took the Wright Brothers to go from their first successful flight to a viable commercial product.

The preceeding assumes that all patentable ideas are of equal significance. However, anyone who follows software patents is well aware that they aren't. Most software patents are much smaller things - from Microsoft's attempt at patenting 'is not' to Amazon's 'one-click buy' patent, most software patents cover the bleeding obvious.

Note: I mention genius above, because that's my understanding of what patents were supposed to protect. They're not to protect the ideas of ordinary purveyors of a craft. There's an obviousness clause, despite the lack of regard it generally gets these days. This is not to say that an ordinary purveor of a craft cannot have an occasional genius idea, and patent it - but that should be very rare; someone who comes up with truly patent-worthy ideas frequently is not of merely ordinary intelligence. This doesn't mean, of course, that said individual's intelligence would be apparent to those around him.

Regarding webmink's comment - I can understand that view, but from my view as a proprietary developer who aspires to be an open source developer, I have to disagree. Most of the progress I've seen has been made by the open source community. They come up with an innovation, code it, show that it works. It's no big deal to them - they just fixed a minor problem in what they felt was the best way. Someone in the proprietary world sees it, copies it (not necessarily by stealing the code; possibly by reimplementing it) and makes a product out of it - which their company then markets and everyone sees how innovative their company is. Bah.
 

I've given this quite a bit of thought, and have sort of vacillated on the idea of software patents. There are certain algorithms that are truly brilliant and solve a problem in non-obvious way, such as public-key cryptography algorithms. On the other hand, too many patents are being granted to broad ideas covering an entire class of algorithms.

There is little doubt in my mind that an algorithm such as RSA public-key cryptography is deserving of a patent. Of course RSA is just one implementation of a PKI algorithm, and any patent covering this must not be generalized to include other "similar" algorithms, or else nobody would bother to look for a better way of achieving the same effect.

One way to measure the broadness of a patent would be to ask if the patent covers a problem or a particular solution. Does the patent attempt to cover the effect of the invention or how it produces that effect?

Let us assume that given a well-defined problem, two people skilled in the corresponding art work independently to develop inventions to solve that problem. Apart from the unlikely coincidence that the two people develop the same invention, any patent covering one invention must not cover the other. Otherwise, the possibility of accidentally infringing on another patent (existing or soon to be granted) becomes a deterrent to small inventors unable to risk the consequences of an accidental infringement.

The real purpose of the patent is to prevent the intentional copying of an invention, not an accidental coincidence. If, by chance, one does accidentally re-invent an existing solution to a problem, it should still be possible for the inventor, once realizing this, to find another solution with roughly equal effort.

If, on the other hand, another solution cannot be found or would require significantly greater effort or would require crippling of the effectiveness or efficiency of the invention in order to avoid infringement of an existing patent, then the patent is either too broad or too obvious to be patentable.
 

Erk! The RSA algorithm again. No it does not 'deserve' a patent. What is brilliant about it? The lemma itself? Absolutely not - it is a simple fact of elementary number theory: perhaps not immediately obvious but it is a pure mathematical discovery anyway, so hands off! Using the lemma to construct a computer program that encrypts messages? Hardly - it is both obvious that it can be so used - certainly in the context of its (re)discovery it was - and straightforward to do so. On the other hand, in the context of shopping website technology, Amazon's 1-click method seems pretty ingenious and 'deserving' of a patent to me.

It is unfortunate that the patent system is in the hands of apparently economically illiterate lawyers and bureaucrats but while everyone else also remains ignorant of what that system is all about: what it is for, how it works, what economic facts are known about it etc. there will be no progress. It will continue to be viewed from the wrong perspective, have the wrong questions asked about it and have ineffective and wrong-headed suggestions made for its improvement.

It doesn't matter (though I am quite serious) that I personally find the RSA patent far more outrageous and far less 'deserving' of a patent than the 1-click shopping method. What matters is that patents are not and never should be granted because they are 'deserved'. It simply doesn't make economic or even ethical sense to think about the patent system in that way. The patent examination process must be objective and fair and that means in practise that there is just no way to grant patents only to 'deserving' inventions. And why exactly does one inventor 'deserve' to be given the legal authority and power to curtail the rights of and restrict the freedom of other (re)inventors anyway? A better question to ask would be "was the invention and *cough* widespread adoption *cough* of RSA encryption facilitated by the availability of patents in that field?" but even that isn't a particularly useful question.
 

RSA algorithm "obvious" and not deserving patent protection ??????

My, aren't we humble today, Mr.Hayes ?

Who are you to judge ?

May I remind you that public key cryptography was one of the most brilliant achievements in computer science - the one that actually allowed widespread e-commerce.
RSA algorithm is one of the cornerstones of modern cryptography, and it took researchers decades to come up with the concept (non-withstanding the purported earlier invention of RSA algorithm by some secret British scientist - remember Bell and Gray story ? Of course, for guys like you anything is obvious in retrospect - telephone, laser, computer modem, RSA algorithm ...
Hindsight is always 20/20
 

"My, aren't we humble today, Mr.Hayes ?"

Humbled perhaps. To discover that one writes so poorly that others can completely fail to understand what one has written and miss every single point is quite a humbling experience.
 

I think the subject of software patents is multi-faceted and I am refreshed to see someone acknowledge the true rationale behind patents generally. The comment I would like to make relates to what I see as a rather simplistic view of just how software patents restrict innovation.

The common counter argument that is made against software patents is that large corporations are metaphorically "taking bread from the mouths of children" because the person running their small business theoretically can be stifled by the patent portfolios of these giants. I would argue that whilst in theory this may be possible, reality (not always considered of paramount importance in software related debate) suggests that this won't happen until such a point as the infringement starts to hit the pocket of the large corporation to a significant degree that it is worth persuing the copyright infringement Remember, it costs a fairly large amount of money (even to a large corporation) to persue a patent infringement (if it can be discovered at all).

I would argue that at the point where the "small company" is making a significant impact on the business of Microsoft, IBM, Apple, Oracle etc they are implicitly no longer a small company and it's a case of "welcome to the jungle". Within that field, those companies are merely exercising their right to protect their intellectual property.