The Coming Software Patent Apocalypse

Allow Software-Patents without any great constritions, but limit their lifetime to 5 years in the normal case, with up to 10 years for extraordinarily patents (like mpeg or other more complicated inventions).
5 years would be enough to have an first-mover-advantage, but on the other hand, 5 years are over fast.
I could live easily with such short software-patent-periods.

I think the crux of the matter is that software patents inhibit creativity. All arguments for them seem to be focused on revenue, and maintaining current forms and standards of business.

I think best case scenario (never going to happen) would indeed be to retract all software patents, and no longer grant new ones. If cares if some companies would go bust (as some CEOs seem to claim); adapt or be eaten.

Changes to IP protection for the fashion industry have been considered very recently: http://www.copyright.gov/docs/regstat072706.html

originally, patent was invented to allow the inventor to receive money for his idea because there’s a cost to invent = research cost

just because research cost to justify patent is high, just a few big companies (even the government, but mostly huge companies) are those ones that can spend money researching

so patents are not only about the concept of freedom to share ideas and knowledge, but about killing or not the chicken that lays the golden eggs

I think that some aspects of software should be patentable, under one of two conditions - a user interface (design patent) or a hardware/software system. Software by itself should not be patentable, IMO.

The core problem is the patent office is giving out protection when there is no true innovation. Create a better sort routine and I can see giving you protection. But allowing a patent on an idea that has been in use for decades is stupid!

Good post Jeff. It will be even worse if they create a “first filed first served” rule which they’re currently discussing.

Well, there are a couple of efforts to combat this trend:
a href="http://www.patent-commons.org/"http://www.patent-commons.org//a
a href="http://www.openinventionnetwork.com/"http://www.openinventionnetwork.com//a

I don’t know how much impact they are having, but if all of the individual developers had a simple, low-cost way to patent anything they were working on and contribute it to an organization that licenses it for free to open source and non-commercial projects, then over time it would build it’s own war chest of patents that could be used to challenge any other company’s portfolio.

If you can’t beat 'em, join 'em (and then beat 'em).

So what do you feel is the ultimate solution to this, Jeff?

A crazy idea that might solve the problem (if it works): an automated system for generating prior art. If it works, it would be a sort of a “denial of service” attack on the patent system.

A patent is only valid if the invention has not been previously described to the public (“prior art”). If a description of an invention has been published before the date claimed by the patent, the patent becomes worthless.

What if an automated system were to create (and publish over the web) such a huge amount of “prior art” that only really really good inventions would not exist in that database? The algorithms could be “designed” randomly. They could be random changes to known algorithms. It doesn’t even matter if most of them don’t really work or do anything useful, as long as some of the randomly generated “inventions” would deny patentability of other inventions.

I agree with toettoe. Allow patents, but give them a short lifespan. This would give people a chance to recover research costs and have time to make money of there products before competition arrives.

The other advantage of this scheme is that it would force more innovation and advancement of current products. If you patent expires every 5 years, you would have to keep making your product better or someone could come along and make a better product from the same concept.

Hopefully the situation will work itself. In any new field there are always big players trying to monopolize the money that pours in. Software is an amazing technology where the building blocks are practically free, so there are naturally going to be huge battles fought between the masses and the few old retainers who feel that they should be the only ones to profit. Legislation will catch up. Unfortunately the US government moves at about 1/1000 of the speed of the software industry.

Wouldn’t it be funny if as a result of the prevalence of software patents, companies had to stop selling software for profit for fear of being sued?

It that happened, the only way a company that sold products that required software to work could operate would be to fund open source projects. So if you make a digital camcorder, for example, and you are afraid of being sued for software patent infringement, you could make it very easy (by publishing full specs, say) for outsiders to write the software that ran on your camcorder. Then, when someone bought the camcorder in a store, it would come with no software. The user would take it home, plug it into their network, download the camcorder platform of their choice on it, and then be ready to use it.

I think the current software patent situation is much more threatening to proprietary software companies than to companies that make money indirectly from open source.

Perhaps software patents aren’t such a bad thing after all!

The net result is that both companies often cross license each others’ patents at little or no out-of-pocket expense for either party.

And a big pay check for the lawyers.

Do while true
echo "Patents = bad, copyrights = good"
done

How about the following:
the patent (and govt in general) moves slowly
The industry moves quickly

Either make software patents last only 3 years, in which case there would be little reason for getting one, or just remove the software patents altogether by a law.

Besides, how is the patent office supposed to know whether a software patent has no prior art or not? Who has such a uge amount of information on software ideas to date?

Greg

I think software patents will end up sparking more innovation than they stifle. Companies are moving away from litigation and into cross-licensing and cooperation; it’s better for everyone. Valuable as IP is, we could see a global economy where the chief currency is pure human ingenuity. But the fact is that a patent is simply a grant offered by the state, not a right, and nobody should be bothered by lawsuits. Public policy should address this to foster the IP market by taking it out of the hands of lawyers.

Jeff, all well and good. But how do you address the issue of some guy in a garage who spends a year building a website app to feed his family, and then 1 month after he releases it some weasel clones it by bank rolling some cheap offshore labor?

I’m not saying that a patent is the right way to protect the guy, but do you have any answers?

Quoting ronp001: “What if an automated system were to create (and publish over the web) such a huge amount of “prior art” that only really really good inventions would not exist in that database?”

This actually is an excellent idea. On the one hand, it would starkly highlight the absurdity of patenting software. On the other, while this absurd situation exists, it would provide protection for us little guys who do, indeed, exercise a great deal of creativity – or, at least, problem-solving – when we write code.

Patents, in their current form, will not change. The problem is you have enormous industries competing for completely different goals in Patents. Software rightfully should NOT even be in this mess at all. Besides having contract law on their side (EULA?) they also have copyright (a crime unto itself) as you cannot copy the disks – the binaries are considered a creative work? and now you have patents.

The pharma industry, evil that it is, is an enormous player and has a huge stake in maintaining the status quo. Software and their patents have a huge interest in changing the status quo. So, you have two mega-giant industries tugging on patent law with opposing needs.

There are only 2 solutions as I see it: 1) Explicitly dissolve software as patentable. After all, it isn’t actually law, just something a judge decided to allow years ago. or 2) Split the patent law into categories: Tangible patents, non-tangible (for example). This would allow the competiting parties to march forward to their own beat.

The downside to this is exactly what’s wrong with copyright. With no other party competing against your interests you get run-away legislation. That is in fact what copyright is. I mean, Def Leopard doesn’t try to stop copyright extension to block Guns-n-roses. There is no competition in this space. Long ago copyrights were allowed for 14 years + 1 14 year extension. Now they are life of author + 75