It's time for Congress to do their bit and suspend assumed patent validity for this broad class of patents. Its clear the review process was yielding vast quantities of invalid patents. Making the courts invalidate them one-by-one is crazy. Classifying them all as assumed-invalid would send a very clear message to the patent office that it seriously fouled up and needs to straighten up in evaluations, and also let patent trolls know that their payday is over. Proving validity puts the technical burden on the patent troll, which in almost all cases would be nearly insurmountable, since virtually all these patents would likely be recognized by juries as obvious and invalid.
I'm not so optimistic as the article. The CAFC has lots of judges that came up as patent attorneys, and who are true believers in the patent system. The June decision by SCOTUS wasn't the first time the Court slapped down abstract patents. The CAFC always finds new ways to get around what SCOTUS has tried to be clear about.
On top of that, people underestimate the amount of shenanigans that patent prosecutors pull during patent drafting and prosecution.
I don't think we will see an improvement to the trolling situation until Congress steps in and changes some of the burdens and fee-shifting standards for patent litigation.
Trolls need to have less weapons they can deploy to raise litigation cost, and they need to be made to suffer for bringing BS cases against innocent companies. Only Congress can make that happen.
Intellectual Ventures and its ilk are not going to sit idly while entrepreneurs and tech companies go to Congress to get reform laws passed. They will bring out the big cash piles, just like Comcast does for Net Neutrality.
And patents isn't even as cut and dry as Net Neutrality. The minute you start talking about patent reform, some well meaning person, who has no idea what they are talking about, will bring up that movie about that inventor, who was cheated by that big company, out of his hard earned inventions.
It's worth noting that the ubiquity of these "on a computer" type patents and similarly questionable other software patents is directly a result of the poor handling of the entire patenting process as well as general incompetence Ex: http://arstechnica.com/science/2014/02/uspto-issues-patent-f...
Is "on a computer" the real problem here? The problem I'm seeing is that we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system."
I just don't think its possible to have software patents that make sense. Abolishment of software patents seems to be the only sane move here.
> we have things like displaying a linked list, which is trivial, being awarded patents by appending "on a mobile device" or "on a web page" or "On a payment system."
Most of these are district court cases. The USA has a patent appeals court, the Court of Appeals for the Federal Circuit [0], that takes all patent appeals nationally. The doctrine about "do it on a computer" patents will be formed by three judge panels chosen randomly from that appeals court, not by the districts.
But the very good sign from these cases is most were decided on the pleadings. That means there was no expensive discovery or claim construction procedure, much less a jury trial. A decision on the pleadings means that even in the best possible light, the patent holder doesn't have a case at all according to the judge. There is no cheaper way to dispose of an expensive and lengthy lawsuit. And a rule that can be disposed of on pleadings is exactly what reformers wanted from the Supreme Court.
The CAFC has seen a few of these and so far Taranto and Hughes, two of the newest Obama judges, have acquitted themselves superbly. We have well written and conclusive decisions from them calling the whole "do it on a computer" mess ineligible.
We'll have to wait and see how the more enthusiastic radicals for patenting everything influence the outcomes. Three judges that wanted to hand a monopoly on the centuries old, trillion dollar financial settlement industry to Alice even when no technological procedures were disclosed in their patent are still on the court: Moore, O'Malley, and Newman. Lourie was the swing vote in that decision and also says that Ultramercial [1] should have a monopoly on interstitial internet advertising because they wrote the century old idea up with 'on the internet' tacked onto the end. There are eleven judges and one empty slot on the CAFC so those four make up a large minority that will likely press for "on a computer" patents to come back.
Chief Judge Prost, Judge Dyk, and the three new Obama appointees seem much more rational and good for our industry. We should hope they are the ones who shape the interpretation of Alice in the future.
And remember that while "on a computer" patents -- the ones that describe a conventional business and add "on a computer" or "on the internet" without anything added to known technology -- are falling, lots of damaging software patents are still out there and apparently unharmed. The h.264 and mp3 patents that block open and free media players and browsers are still functioning. The ZFS and JFS patents that make BTRFS illegal are still out there. The compiler and VM patents from IBM, Sun, and others that hang over the head of anyone who writes either still exist. The long filename patents and others that Microsoft uses to tax Android are still taxing. The UI patents on smartphones that drive the smartphone wars are still driving them. New patents on computer vision, deep neural nets, machine learning, GPU computation, multithreading techniques, and more are being granted every tuesday.
Lucky for us, software patents that are on actual software are a lot less lucrative than the ones on business "on a computer." Even in smartphone litigation, most of the money verdicts depend on the shape of the box a smartphone comes in; don't steal the idea of a rounded rectangle and your lawsuit will be for tens of millions instead of billions. Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go.
"The compiler and VM patents from IBM, Sun, and others that hang over the head of anyone who writes either still exist. "
I'm not sure IBM belongs on this list. When I worked at IBM, they were generally fine with pledging a ton of patents to open source, including any compiler patents that were interesting.
For example, we got the graph coloring register allocation patents pledged.
Algorithm patents do not patent math, they patent processes that are describable with math. It is the difference between patenting the concept of "sorting" and patenting a specific sorting algorithm; only the latter is allowed. The conceptual test for patentability of an algorithm in most countries is that it is directly reducible to practice as a novel electronic circuit design.
All patentable subject matters are directly describable with math in exactly the same way as proper algorithm patents, and chemical process patents have an identical abstract structure (just change "bits" to "atoms"), so any specific argument against algorithm patents would consistently apply to most or all patentable subject matters.
> Algorithm patents do not patent math, they patent processes that are describable with math. It is the difference between patenting the concept of "sorting" and patenting a specific sorting algorithm; only the latter is allowed.
The problem with this logic is that algorithms and math are the same thing.
F=ma describes what happens when you hit a golf ball with a club. You can't patent F=ma, you can patent a novel golf club. A golf club is not an equation.
An algorithm is not described by math, it is math.
Thought experiment: Suppose that you were allowed to patent math. Name some product that would infringe the math patent that would not infringe the corresponding algorithm patent.
> The conceptual test for patentability of an algorithm in most countries is that it is directly reducible to practice as a novel electronic circuit design.
That is no test. All novel algorithms (or, equivalently, mathematical formulas) are directly reducible to novel electronic circuit designs. Deterministically by a machine. It's like saying you can't patent math unless you write it down. You're attempting to distinguish two things using a test that identifies them as equivalent.
> All patentable subject matters are directly describable with math in exactly the same way as proper algorithm patents, and chemical process patents have an identical abstract structure (just change "bits" to "atoms"), so any specific argument against algorithm patents would consistently apply to most or all patentable subject matters.
The difference is that with "atoms" the description is distinct from the implementation. A computer simulation of the atoms in Tylenol wouldn't infringe a patent on Tylenol. The simulation is math. The simulation doesn't treat aches and pains.
One of the fundamental concepts in algorithmic information theory is that the physical design and construction of your "novel golf club" is completely and perfectly equivalent to a mathematical equation in exactly the same way the RSA algorithm is. The argument generalizes to all patentable subject matters. And as fabrication technology is becoming more sophisticated this fact is starting to become more obvious in practice.
No one patented modular exponentiation, they patented an encryption algorithm that employs modular exponentiation. That is a distinction with a real difference. All patents have this type of construction. The same argument could be used to assert that all chemical process patents are patenting common chemistry or facts of nature.
The deeper issue with both copyrights and patents is that they are based on legal distinctions that don't exist mathematically. The law must therefore necessarily be inconsistent and ambiguous in its treatment of such things. Piling yet another mathematically unsupportable fiction on top of the existing ones won't mitigate the problem.
I can live just fine without algorithm patents but as a matter of principle I also object to the obviously selective and inconsistent application of standards for what is and is not patentable.
> One of the fundamental concepts in algorithmic information theory is that the physical design and construction of your "novel golf club" is completely and perfectly equivalent to a mathematical equation in exactly the same way the RSA algorithm is.
Equations and algorithms can't generate force or protect metal from corrosion or convert chemical reagents into medicine. They have no corporeal existence. There is no computation you can do that will get the golf ball into the hole.
> And as fabrication technology is becoming more sophisticated this fact is starting to become more obvious in practice.
Using a 3D printer to make a patented golf club is clearly patent infringement. Widespread availability of fabrication technology is certainly going to make enforcing certain patents much more difficult in the same way that it has for copyright but what does that have to do with patentability?
> No one patented modular exponentiation, they patented an encryption algorithm that employs modular exponentiation. That is a distinction with a real difference.
It's the same piece of code. Math has no particular intent.
> All patents have this type of construction. The same argument could be used to assert that all chemical process patents are patenting common chemistry or facts of nature.
No one is disputing that anything can be described by math. The point is that the math is different from the thing it describes. A chemical process is not itself math. An algorithm is.
A good way to understand it is to realize that a physical thing can be used as a "computer" to execute the mathematical algorithm describing its behavior but the reverse is not the case. You can calculate 'E' in "E=mc^2" by setting up a nuclear reaction that will convert a mass 'm' into energy 'E' and measuring the energy that is produced. You can perform the same calculation using a general purpose computer. So the algorithm/formula "E=mc^2" can be executed on a nuclear reactor or on a smartphone. But doing the calculation without the nuclear reaction will not actually produce 'E' joules of energy that could be used to e.g. drive a steam turbine. That's the difference.
Your E=mc^2 example actually highlights one difference between patentable and non-patentable math. Calculating E does nothing useful by itself. But calculating the DCT of a series of numbers representing an image, arranging it in a matrix, traversing it in a zigzag pattern and applying run-length encoding does do something undeniably useful: it allows compression, which can conserve bandwidth and disk-space.
Yet you seem unwilling to accept the difference between mathematics and applications of mathematics, of which the latter is being patented.
Let me try a different analogy. Mathematics cannot be copyrighted. Yet software can be. If you can resolve this conflict, you may find a hint to explain how software can also be patented.
> Calculating E does nothing useful by itself. But calculating the DCT of a series of numbers representing an image, arranging it in a matrix, traversing it in a zigzag pattern and applying run-length encoding does do something undeniably useful: it allows compression, which can conserve bandwidth and disk-space.
All math is useful for something. How is calculating 'E' not useful? I need to know how many turbines to build.
> Mathematics cannot be copyrighted. Yet software can be. If you can resolve this conflict, you may find a hint to explain how software can also be patented.
There are multiple equivalent encodings to represent any mathematical operation. Since the encodings are equivalent, choosing one is a creative act having no mathematical consequences. Copyrighting that work of authorship provides no monopoly over the math because the same math remains available to anyone else using any of the infinitely many other possible equivalent encodings. Even in the unlikely event that someone else independently comes up with exactly the same encoding (more likely for extremely simple algorithms), independent creation means no copyright infringement. By contrast, a patent would cover all of the equivalents and make no exception for independent creation, which would make it a patent on the math itself rather than any particular encoding.
And that is a patent-eligible application* of the abstract equation :-) You could potentially get a patent on that application but that would not preempt the equation itself. Somebody else could potentially get a patent on the use of that exact same equation to calculate the number of atoms to feed into an anti-matter space drive.
> There are multiple equivalent encodings to represent any mathematical operation...
And similarly there are potentially infinite applications of a mathematical operation. Patenting one application does not provide a monopoly over the mathematical operation itself. Now you may again try to conflate "algorithm" and "abstract mathematics" and "computation" again, but you cannot change the fact that the algorithm without its practical application is meaningless.
But even algorithms are too specific a word for most software patents. Consider a patent on a mobile app (valued at, say, $10 billion) that claims sending photos over a network that are auto-erased at the receiver after a time period expires. What is the algorithmic complexity of that?
> And that is a patent-eligible application* of the abstract equation
I think we've come to the heart of it here. The heat output of a particular reaction is a law of nature. Its calculation is a mathematical operation. The discovery of that mathematical formula E=mc^2 is non-obvious. It took centuries of scientific minds before Einstein. But given that law of nature and its mathematical description, the decision of how many steam turbines to build for a given energy output is preposterously obvious.
So the problem is they're granting patents on obvious applications of computations just because the computation itself is non-obvious.
Which makes it a simple rule to clarify things: a) Computations are not patentable and b) obvious applications of unpatentable computations are not patentable.
> And similarly there are potentially infinite applications of a mathematical operation. Patenting one application does not provide a monopoly over the mathematical operation itself.
The problem is they aren't issuing patents on applications, they're issuing patents on algorithms. It doesn't matter what application you use the software for because the software itself infringes the patent. The so-called application devolves to "run this algorithm on a computer."
> But even algorithms are too specific a word for most software patents. Consider a patent on a mobile app (valued at, say, $10 billion) that claims sending photos over a network that are auto-erased at the receiver after a time period expires. What is the algorithmic complexity of that?
That's about it. Obviously each function has its own rabbit hole to go down, but so do all mathematical operations, even the seemingly fundamental ones that programmers treat as intrinsic. You can make any mathematical operation arbitrarily complex; it's turtles all the way down. And each of the individual functions above exists in the prior art.
Calculating the DCT of a series of numbers representing an image, arranging it in a matrix, traversing it in a zigzag pattern and applying run-length encoding does something undeniably mundane, in the eyes of a typical computer programmer. We call this transformation. It's useful, but it's MATH.
"Equations and algorithms can't generate force or protect metal from corrosion or convert chemical reagents into medicine. They have no corporeal existence. There is no computation you can do that will get the golf ball into the hole."
Algorithms can; they can create a decision to apply a paint or to move an actuator in a particular way, or to remove access to a file or to remove a file completely. This is the way that algorithms can be materialized in the same way that a chemical process described as a series of instructions for building machines and using them to process base materials can be materialized.
Only if the machine is doing something in excess of computation. Then you have a machine that applies paint in a particular way. The algorithm itself isn't the thing you're patenting anymore.
Whereas "removing access to a file" is still nothing but computation. The machine in that context is fully abstract. Any general purpose computer of any design can do it. So the algorithm itself should be unpatentable and the machine is a general purpose computer that exists in the prior art, which leaves nothing to patent.
Allowing patent on even 'math' should not be an issue as long as the math technique is sufficiently complex that the probablity of someone else independently arriving at that math within the patent term seems to be very low
> Allowing patent on even 'math' should not be an issue as long as the math technique is sufficiently complex that the probablity of someone else independently arriving at that math within the patent term seems to be very low
Your criteria would exclude in excess of 99% of issued software patents. Keep in mind that 20 years is the period of time between the introduction of DNS and the introduction of the iPhone. Twenty years ago Google did not exist and Windows 3.11 was the latest version. Twenty years before that the IBM PC did not exist, Microsoft did not exist, TCP/IP did not exist, AT&T would be The Phone Company (singular) for another decade, the Cold War was in full swing, people were wearing Disco Suits and many of the parents of this year's crop of college graduates had not yet been born.
Unless you meant that the term of a software patent should be on the order of six months to a year, which hardly seems worth the candle.
> No one patented modular exponentiation, they patented an encryption algorithm that employs modular exponentiation.
Then I must ask: What invention is needed to invent the algorithm, once you know the math?
Is this a novel invention (no prior art about the same algorithmic idea being applied elsewhere)?
Is it non-obvious (a professional computer programmer couldn't be expected to come up with the algorithm, when presented with the math)?
I'm no expert, but I suspect that if you teach me the math behind a particular encryption scheme, then I could program the algorithm without too much difficulty.
>What invention is needed to invent the algorithm, once you know the math?
Math and algorithm are overloaded terms that often mean the same thing, so it's not possible to answer that question. However, to clarify what jandrewrogers meant: at the time modular exponentiation was a known mathematical construct; what was invented and patented was a new, previously unknown algorithm that used that mathematical construct as part of an encryption technique.
Now both can be seen as "math" or "algorithm", but the key difference is that the encryption algorithm has practical utility (i.e. providing security) whereas modular exponentiation by itself has none.
The problem with patenting a specific algorithm is that a human sitting at a desk with a piece of paper and a pencil can perform pretty much any algorithm. It might be hard for a human to do, or a group of humans to do, but it's still conceivable. A great many algorithms we use and enjoy today were developed with nothing more than a blackboard and a piece of chalk after all...well before being committed to code or circuit.
Doing it "on a computer" just means it's faster and less error prone, but in theory, just about any algorithm can be done without a specific software or hardware implementation.
But algorithms, can be described as math, but nonobvious and useful processes can also be patented. So can improvements to existing processes.
A simple example, the Fast Inverse Square Root is nonobvious and useful, even if it's simple in execution.
Novel algorithm design can also be the result of years of work. And in theory patents would have allowed the inventor of the algorithm to recoup that development cost through a short term monopoly. And I think that's fine. But that short term is turning into long term and I think that's a problem.
The irony is that attempts to lengthen the term of monopoly granted by a patent might in the end undo the whole system.
It's happening in pharma and medicine right now. [1] To justify the cost of R&D, there's a significant lobbying effort to increase patent term to longer periods.
What if I write a compiler which is able to produce automatically the mp3 compression scheme through a more generic description of lossy stream processing, along with the ad-hoc math notions (fourrier transform, etc)?
Does it mean every person using that compiler will potentially have to pay? We already have software framework able to automatically (dis)prove theorems and generate code, so we're not very far practically from the above hypothesis, what will happen then?
Senior (semi-retired) Judge Bryson was taking district level cases by designation in East Texas ... because that's where abusive patent cases get filed. Bryson doesn't have as much impact as a full time CAFC judge, and can't vote in essential en banc cases.
And two of the CAFC cases were rump panels with Taranto and Hughes. Rader's retirement left the panels short.
"Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go."
I don't agree.
If a genuine invention is made which contributes to the state of the art and is significant then there are two options for monetizing it. It can be patented, or it can be kept secret.
DanBC just gave one example, but independent invention tend to be the norm. Strike out patents, and inventions will likely flow anyway —if one keeps it secret, others will publish it. It doesn't really matter that inventors "deserve" a reward: the cost monopoly is just too high for society at large.
Besides, you forgot a third option: "first to market".
1. Independent invention may be common, but simultaneous independent invention is very rare. Look at the few dozen examples on wikipedia and compare that to the millions of inventions throughout history. In fact the USPTO moved to a first-to-file regime precisely for that reason -- less than a fraction of a percent of patents were involved in interferences. (An interference is a case of simultaneous independent invention at the PTO.) Reinventing something years after somebody already has is no great feat.
2. There is no empirical evidence that the "cost of monopoly to society is too large". In fact there are tons of economic and historical studies that clearly show the benefits of patents by comparing metrics before and after patent systems were introduced. There are also studies that show the costs these systems impose. It is, however, impossible to say if the costs outweigh the benefits because the metrics used are largely orthogonal.
1. Okay, then, let's do a study about how much time does independent invention need. Then patent durations must be tuned to that. For instance, if most independent re-inventions takes 2 years, then we shouldn't grant patents for more than 3 of 4 years. I suspect that according to this criterion, current durations are much, much too high.
2. I just take for granted that all other things being equal, having a monopoly is much worse than not having it: the (diffuse) cost to society at large is much higher than the (concentrated, visible) benefit to the monopolist.
I take it for granted that it is not defensible to have the society pay a significant cost just to reward a lone entity, no matter how much he "deserves a reward". Global costs must be balanced by global benefits. The very existence of an invention is such a global benefit. But unless the patent helped get the invention out sooner, that benefit is void, and the patent, unjustified.
Also, apparently, we haven't read the same "tons of studies". The arguments againts patents I have read so far (Against Intellectual Monopoly was a good read), sounded very compelling —not to mention grounded in evidence. Could you give me some pointers to the studies you speak of?
The term of a patent has nothing to do with independent invention, it is meant to allow an inventor an opportunity to capture the rewards of their invention. Both licensing and product development (even for software) can take many years to happen, and 4 or 5 years is laughably inadequate. Not to mention, of course, that patent offices take a few years for a patent to grant in the first place. What advantage is a patent if it expires just in time for others to start ripping you off?
In any case, I am not aware of any quantitative study of independent invention. But using patents as a sample, considering only 0.1% being involved in interferences and that only 0.1% of issued patents ever being asserted, one rough guess could be that most patentable ideas are never independently re-invented. On the other hand, given how narrow patents usually are, this is not surprising. Then again, most patents are licensed without litigation, and these deals are confidential, so this is a really rough guess.
> … Against Intellectual Monopoly …
Heh, I guessed that would come up. Unfortunately, that book contains many fabrications and mischaracterizations of other work, which calls into question anything they say. I've already pointed it out once:
It's unfortunate that many people believe their work without critical thought because it confirms their biases. The second comment linked above links a few studies showing the beneficial effects of patents and ends with a reference to a more balanced and honest overview of the current state of patent economics. I'd encourage you to read those instead.
> The term of a patent […] is meant to allow an inventor an opportunity to capture the rewards of their invention.
This is not a valid justification. Granting the inventor a monopoly costs more to society than it benefits the inventor himself. As such , the inventor doesn't matter. His invention does.
What would be a good enough justification, is if granting the patent hastened the creation of the invention. To me, it is not clear this is generally the case. First, there is this "independent invention" thing. Second, there are other ways besides monopoly. Being first to market can be a pretty good incentive for innovation. Third, patents can slow down incremental inventions —improvements to patented ideas. Fourth, granting a monopoly to the inventor could encourage him to get lazy, and stop or slow down his output. Fifth, inventors could seek out monopoly-friendly innovations, instead of more useful ones —rent-seeking behaviour. Sixth, in practice, many patents are filled after the invention has been completed for other reasons.
Finally, there's the sheer bookkeeping costs of the whole patent system. 0.1% of patents only are being asserted? Does that include licensing deals as well as litigations? Anyway, there's the patent office, the effort of writing the patent in the first place, patent lawyers, the judges and juries that take time to rule litigations, and of course any effort directed at patent circumvention (compression algorithms have several good examples). Such overhead is not trivial.
Innovation fostering has to be significant enough to compensate for the various costs (monopolies and overheads). This sets the bar rather high in my opinion.
> Granting the inventor a monopoly costs more to society than it benefits the inventor himself.
You cannot make that assertion without empirical evidence. You bring up good points about the costs of patents, but note that your language ("can", "could") is all in terms of potential.
The studies I've read consider all those points and then try to quantify them, even going as far as seeing how they play out in different industries. Other studies raise points which show the benefits of patent systems (increased R&D spending, increased diversity in the areas of innovation, increased probability of securing VC funding) and quantify those too. Other studies actually find counter-intuitive results about monopolies in general (e.g. monopolies can be more innovative than startups by some metrics -- think Bell Labs, Xerox, MS Research -- which casts doubt on the "monopolist gets lazy" argument). There are tons of studies presenting interesting results, and of course, there are studies that point out flaws in these.
The problem is, it is impossible to compare these results quantitatively because the data, methods, assumptions, interpretations, shortcomings and metrics are wide, varied and often orthogonal. How can you meaningfully compare a lower rate of stitch / minute improvements (that was used as a proxy for the cost of sewing machine patents) with the increased diversity of industries participating in a technical convention (which was used as a proxy to measure the beneficial effects of introducing a patent system)? And to top it off, both studies were by the same author (Petra Moser)! This is just one example -- there are as many metrics as there are academics researching this area.
If someone makes such an invention, there is no incentive to keep it perfectly secret (i.e. hide it in a filing cabinet and make no use of it that might hint towards its existence) -- other than sheer paranoia or vanity.
Instead they will either sell it like any other trade secret or make use of it. If they make use of it and it gives them a notable advantage over competitors, the competitors will seek to either reverse engineer the invention or invest in finding something that works equally well or even better. If the competitors succeed, the original invention becomes obsolete (rendering knowledge of it less valuable) or common knowledge.
What's more, a competitor or a non-commercial organization might decide to publish their findings for various reasons ranging from harming the original inventor by eliminating their advantage to benevolence / publicity / "fostering innovation".
In the current situation a lot of patents are flat-out useless to anyone but the holder. They either describe something that is blindingly obvious ("X on a computer"), something that is already common knowledge (but nobody bothered patenting before) or that is so vague the description itself is worthless to anyone seeking to copy the idea when the patent has expired.
Patents are supposed to be a fair deal between the public and the applicant: the applicant is offered legal protection to maintain a monopoly in a technology they created for a limited amount of time but in return they have to disclose their technology so anyone can copy it once the protection expires.
If you take away that benefit to the public, it's just a blessed monopoly that can be used to extort anyone who independently comes up with the same idea (or shares the same common knowledge on which it is based). Even with that benefit to the public most software patents would still be harmful because of their insane longevity -- the software industry is disrupted on a monthly, weekly or even daily basis, but patents can be maintained for more than a decade.
What's so bad if software patents were abolished? Copyright would still exist. Trade secrets would still exist. Trademarks and trade dress would still exist. NDAs and other legally binding agreements would still exist. At this point the benefits of software patents are theoretical at best -- every single tech company out there could potentially be sued into oblivion if they were to pop up on the radar of a patent troll. Patent infringement has become SOP for software companies -- not because they don't care about other people's IP but because it's simply impossible to license every single "invention" your company uses (and let's not get started on what the situation looks like for contractors).
1. It's not vanity or paranoia, ideas do get stolen, bringing down startups and setting back careers. I personally know of startups get ripped off by the big guys as well as entire research papers being ripped off from professors.
2. Reverse engineer Google's or Facebook's infrastructure, if it's that easy. Conversely, I've seen people reverse engineer a product from its wireless signals. It probably took years to build that product, but was reversed inside a week. Similarly, it took Apple years to create and refine the iPhone UI, and it took Android only a year to copy it. How is that fair? Secrecy works only if your advantage is never exposed to the outside world, like when it's hidden away in datacenters. And when it does work, how is that good for advancing the industry?
3. Your view assumes that every inventor can bring the invention to market. Look around you - you are surrounded by technology that requires thousands of different components and suppliers to make (of which of software is just one) and one could invent an improvement to any of them. Example: you thought of a more efficient way to transmit AC over power lines. How do you make, use or sell it? Do not assume you work for a power company.
The original (written, at least) intent of the patent laws was "to advance the state of the art". Fairness to the inventor never enters into it, except to the degree that such a thing is necessary to motivate inventions; if you agree with that, then the patent laws should probably be mostly dismantled.
"Advancing the state of the art" like all things in patent law, was deliberately broadly written because there are thousands of ways to do so and infinite multitudes of nuances to consider. Fairness absolutely was, and always has been, one of the main points. In fact, all property rights concern fairness, and intellectual property rights are no different.
It's debatable that H.264 and MP3 patents are bad. These were non-trivial to invent and are worlds apart from slide to unlock or hold-the-shutter-button-to-record-video. They don't patent the general process of compressing video and audio.
The question is not whether they are non trivial, and useful. The question is whether they (or something like they), would have existed at all.
Once granted, a patent give a benefit to the inventor, as well as a cost to society at large: monopoly. I think it is fair to say that the costs of monopoly always exceeds the benefits: you can't justify having the society as a whole pay such a cost for the benefit of a lone entity.
The only way to justify such a cost to society, is an equivalent benefit to society. If it turns out an invention would not have existed without the patent then the patent may not be that bad. But if would have existed anyway, then the patent is a net cost —bad.
Reading my sibling comments, it seems H.264 and MP3 patents were not instrumental in the coming of those technologies (efficient audio and video compression). Those technologies would have been invented anyway. Which means these patents didn't serve any real purpose, and their costs (monopolies) are therefore unjustified.
That's a pretty myopic view of how h.264, etc, were developed. A lot of work goes into developing standards like h264, LTE, etc. It doesn't just happen by magic. Its expensive to pay experts to research each new iteration of the technology. At the same time, the fact that they must be released as a standard undermines most of the other monetization opportunities, such as trade secrets. Patent licensing creates a unique and very effective regime allowing many companies to work together to develop these open standards, while ensuring that freeloaders can't just use the final specs without contributing either monetarily or in terms of research investment. Without patents I think you'd see a lot more proprietary technologies, with companies keeping new developments secret to try and monetize R&D investment.
They don't patent the general process of compressing video and audio.
I get the impression from reading about Daala, VP8/VP9, and x264 that there are fundamental building blocks that are patented and used in threats. We have open source researchers who are just as willing to make high quality codecs as the MPEGLA members, but their time is wasted by fear of lawsuits and working around obvious patents.
I'd suggest that anything that becomes an international standard should have FRAND licensing for all patents, enforced by treaty.
Nice development for trivial patents, but it makes me wonder if this could lead to people having to defend their (e.g., algorithm) patents by appeal to computational complexity or the physical constraints of human vs. computer memory, etc.
Well, I'm glad SCOTUS seems to be doing something right. So much of their decisions seem to be on the side of entrenched/powered/moneyed interests, whether its the dismantling of the Voting Rights Act and campaign finance reform, or the granting of increasing rights to corporations (like Hobby Lobby).
Its a conservative Supreme Court that had come down strongly in favor of free expression and religious freedom. E.g. Brown v. EMA, the video game free speech case. Different sides of the same coin.
What is insane to me are people who agree with Brown but disagree with Citizens United. A political movie isn't free speech, but Grand Theft Auto is?!
To me, the common thread is that they all come down on the side of greater freedom of expression and freedom to take actions consistent with beliefs. But both the Citizens United and Hobby Lobby decisions are anathema in circles such as many tech communities. I suspect a lot has to do with personal disagreement with the beliefs of the organizations involved even though the discussion often gets reframed. Around catchphrases like "corporate personhood" in the case of Citizens United.
As a soundbite, it's such a red herring anyway. Of course corporations act like individuals in some ways (and not in others). Corporate entities can enter into contracts that aren't tied to a particular employee. They generally have freedom of speech. But they can't be put into prison (except metaphorically.)
The issue was who made the political speech and whether it was electioneering (promoting a candidate). Before CU, corporations, associations, and unions could not spend their money on buying ads or air time to do electioneering.
I think the point of this law was to control the effect of money on politics. If these independent expenditures (IEs) were restricted, then campaign spending would be done through the campaign.
Campaign donation limits would further decrease the influence of the wealthy and organizations on elections. Again, these limits exist specifically for this purpose.
These laws just dealt with the obvious: money has a huge influence on how much speech you have, and the only way to make speech more equal is to put restrictions on how much money you're allowed to spend on speech. The laws were limited to political speech during elections.
Furthermore, there is a distinction between personal and commercial speech and election speech, and election speech is more tightly regulated, and always has been. Our system is supposed to be one-person-one-vote, and likewise, the restrictions on speech are used to try and achieve one-person-one-voice in elections.
Citizens United was a bad decision because it extended the general personal free speech rights to election-related speech by corporations, associations, and unions.
It's led to the creation of associations that accept donations, and then produced electioneering materials and buy media as IEs.
I work for the AFL-CIO union, and the leaders at the national level happen to think that Citizens United was a bad decision, as well. They've issued statements about it.
Nobody was stopping them from making or distributing the movie. The case concerned restrictions on the airing of ads in a narrow window of time to prevent unlimited use of money for electioneering purposes.
The District Court determined that the movie itself was "electioneering communication":
> After viewing The Movie and examining the 73-page script at length, the court finds Mr. Morris's description to be accurate. The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.[12] The 280*280 Movie is thus the functional equivalent of express advocacy. See WRTL, 127 S.Ct. at 2667 (setting out the "functional equivalent" standard). As such, it falls within the holding of McConnell sustaining, as against the First Amendment, § 203 insofar as it bars corporations from funding electioneering communications that constitute the functional equivalent of express advocacy.
This essentially prevented the group from airing the movie on television within 30 days of the Democratic Primary (i.e. the very period during which one might want to air a movie advocating for or against a candidate!) The group would have faced civil and criminal penalties for airing the movie.
And you've just gotten to the heart of why it's different from Brown. Money corrupts politics and threatens democracy. There is no such problem with violent video games.
If you think it's "insane" that we make this distinction, all I can say is that I think you're insane for not making it.
There was nothing about that movie that was related to "Money" per se. This wasn't the Koch brothers conspiring with George Soros. This was a couple of goofballs editing together some news footage and dubbing over some scary narration. That is, shit that happens on youtube every day. You know, speech. After the FEC has silenced all the little guys who dare criticize a candidate, do you really think the Kochs will be reduced to normal private citizens?
> After the FEC has silenced all the little guys who dare criticize a candidate, do you really think the Kochs will be reduced to normal private citizens?
Exactly. People vastly misunderstand Citizens United.
Fox News is Rupert Murdoch buying airtime in bulk for his political speech. Unless you propose to shut it down along with every other privately owned media company, money is speech.
If laws were made with the philosophy that they must perfectly solve all aspects of a problem, there would either be no laws, or there would be complete totalitarianism. Thankfully, people rarely subscribe to absolutist philosophies once you actually get them to think about a topic.
So what practical solution are you proposing? Rupert Murdoch gets as much speech as he can afford to buy but some smaller entity can't buy more than some arbitrarily set small amount of airtime preceding an election?
The rules were limited to corporations, associations and unions. Individuals were not restricted in this type of speech. Citizens United was a nonprofit corporation.
Yes, which was the heart of the CU decision: if individual are unlimited, and corporations, associations, and unions are collections of individuals, then how can those be limited?
Put another way, the CU decision argued that individuals do not give up their right to free expressions just because they decided to pool their money in a particular way.
Remind us again, what's the problem with money and politics? Is the problem really that some people make money by commenting on politics? I guess you're thinking of like, Rush Limbaugh? Maybe Jon Stewart? Really? Please think more carefully.
If money is like cooties, in that it ruins everything it touches, no matter what actual role it plays in the situation, then everything in this world is screwed up forever. But, that's not the case. The real problem with money in politics is the corruption of political, regulatory, administrative, and legislative decisions. When you fixate on stupid shit like some movie some dudes made, that idiocy is quite useful for those who benefit by that corruption.
The irony of your statement is that Rockstar Games almost certainly has a ton more money than Citizens United, and is a for-profit corporation on top of all that. Citizens United is just an advocacy organization, no different than Sierra Club, etc. Who exactly is the "moneyed interest" here?
I must have missed the part where Rockstar Games is engaged in electioneering at all, much less with Grand Theft Auto. Could you point me to some sources on that? As it stands, your comment has absolutely nothing to do with my statement.
My point is that Rockstar Games is a wealthy for-profit corporation, while Citizens United is a political organization funded by individuals. The latter seems for more worthy of having free speech rights than the former.
Your point, which I think is a fundamentally flawed and even dangerous view of speech rights, is not actually relevant to the philosophy you don't understand but claim is insane.
The speech CU engaged in implicates practical problems violent video games do not. The question has never been one of worth. If it were, I'd have a long list of people I'd like locked up, starting with all politicians and lawyers.
No, the interest in remedying those problems overcomes the protection to which all speech is entitled. Why do you find this surprising? It's the same way any speech restriction is upheld.
(I'm very confused as to how you came to this conclusion, by the way, and would appreciate an explanation. That it's a matter of what "deserves" protection is exactly the idea the comment you replied to sought to dismiss, so somehow you've interpreted my statements exactly backwards.)
From what I understand, speech restrictions are upheld in very narrow ways:
- "time, place, and manner" restrictions such as not yelling at 4 AM in a residential area (these must withstand what's called "immediate scrutiny", which basically says that the restrictions must be content neutral, narrowly tailored to serve a specific government interest, and leave ample opportunity to share outside of the specific circumstances)
- "content" restrictions, such as restrictions on direct threats or child porn. These must pass strict scrutiny (narrowly tailored, serve a specific government interest, and be the least restrictive means to serve that interest.)
The government's interest has never been in "remedying" the problem of people speaking about politics, regardless of money (it does have an interest in stopping bribery, but that's a different issue.) Indeed, Kennedy's majority opinion in Citizens United is quite direct about wanting to allow more people to speak about politics -- specifically, allowing associations of people (ie, corporations, unions, etc.) the same ability to speak that single wealthy individuals have. The alternative to CU is frightening -- the only people whose political messages could be heard would be the few with the money to own media companies, or the few with the social networking apparatus to create faux-viral content.
This parallels older supreme court decisions such as:
Dartmouth College v. Woodward, 17 U.S. 518 (1819)
Providence Bank v. Billings, 29 U.S. 514 (1830)
Santa Clara County v Southern Pacific Railroad Company, 118 U.S. 394 (1886)
United States v. United Auto Workers, 352 U.S. 567 (1957)
In my opinion, restrictions on electioneering spending do pass strict scrutiny.
> The government's interest has never been in "remedying" the problem of people speaking about politics, regardless of money
Money is all that is at issue here. Like many others, I categorically reject the notion that money is speech, and have done so for a very long time in the face of far more detailed and principled arguments to the contrary than have been presented in this thread.
> (it does have an interest in stopping bribery, but that's a different issue.)
Bribery is not a different issue -- campaign contributions, direct or not, are bribery.
> allowing associations of people
I will never consider "associations" that shield their members/owners from personal liability to be entitled to speak or do anything else without the permission of society.
The alternative to CU is not frightening. The alternative to CU is recognition of the obvious: Limited liability entities are not entitled to any rights, political campaigns should be publicly funded, and individual spending on electioneering should be strictly limited.
Notice I keep saying "electioneering", not "politics", because the conduct at issue is expenditure of money on electioneering, not speaking about or spending money on politics in general. This is just one example of the vast disconnect in evidence here.
If a single wealthy person is, non-anonmously, going to be allowed to electioneer, that's actually the price that should be paid for restrictions on associations.
People can judge the message by the speaker. When billionaiare Meg Whitman ran for office, her ads were on every single commercial break. She still lost. People saw through her.
When you have a multitude of associations, you can't tell who is saying what, and it creates confusion.
Whatever they bias is, invalidating software patents is an action that favours entrenched/moneyed interests. It favours them almost as much as it favours small inovative firms and sole professionals.
> invalidating software patents is an action that favours entrenched/moneyed interests
Not true. Large firms & patent trolls hold the patents and have the resources to deal with the legal expenses. Small innovative firms & sole professionals tend to not have legal departments, large amounts of capital (& time) to spend on legal "non-innovative" matters, nor do they have patent troves.
Invalidating the software patents increases freedom to create & innovate and reduces centralization of power, legal trifling, and bureaucracy.
I think it is true. Ending software patents is great for startups, but it's good for Google, Apple, and Microsoft, too.
The big companies aren't getting much value for what they spend on the patent system and their valuations depend on growth of the software ecosystem that requires startups.
The ones that will lose out when software patents aren't lucrative are the entrepreneurial lawyers who found a loophole in the system and mercilessly exploited it. Several of the "inventors" in the patents in op were patent attorneys with no experience in computer networks and software. They saw a chance to cheat and they took it; no technology was required.
Well, Intellectual Ventures will lose out, too. They're large in the sense that they're winning more than the tens of millions that small time trolls do, but not compared to IBM or Amazon.
It's true that large firms and NPEs hold the patents and can better enforce their patents, but "patent trolls" (aka patent license companies that specialize in holding and enforcing patent rights as a business model) can be in some ways a benefit to smaller firms for a couple of reasons:
1) The smaller firms don't have the ability to aggressively defend their patents against larger competitors (and would simply have their invention used by the big players without a patent). Instead, the smaller firm can essentially outsource this to a patent licensing firm that specializes in it (standard division of labor), for example selling the patent while maintaining a license to use it themselves (or any other of a multitude of arrangements that essentially let them fight the big players).
2) If the smaller firm doesn't have the resources to actually introduce and sell their invention in the marketplace, they can sell it to a patent licensing firm that can use the patent within their portfolio to license to the main players in the market. This could arise when, for example, the small company comes up with an important new innovation in smartphones, but the small company lacks the resources to actually create a viable physical product on its own.
Software patents exist, in part, because the programmers writing the software are helping to patent their "inventions". Often the programmer's employer offers a juicy cash bonus for each patent filed or granted. If you want to help end software patents, put your money where your mouth is and refuse to participate when your employer waves a $1,000 check at you to help them patent your linked list visualizer.
