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.
Schmidt spoke at Google’s Mobile Revolution conference in Tokyo as a keynote speaker, Among addressing several other issues, he also responded to questions about the legal actions undertaken by companies like Apple and Microsoft. Schmidt stated that the patent lawsuits, or “legal fun” as he calls it, are the result of Apple and Microsoft being unable to compete on merit.
“We have seen an explosion of Android devices entering the market and, because of our successes, competitors are responding with lawsuits as they cannot respond through innovations,” Schmidt responded to questions, “I’m not too worried about this.”
Furthermore, when asked if Google would pay HTC’s legal bill should the Taiwanese phone maker lose the court case, he noted that “[Google] will make sure they don’t lose, then”. He pledged to support HTC through all this, but how, exactly, he didn’t say.
This is a relatively harsh response – the part about not being able to compete on merit – which is unusual since Schmidt and Google continued praising Apple as if the relationship hadn’t soured up until now. My position on this matter is clear – this is clearly not about copying or stealing ideas, but all about Android posing a major threat to Apple (and Microsoft). If it truly was about stealing and copying ideas – where are the court cases about the PlayBook or other similarly not-so-successful devices?
I don’t know what Schmidt and Google are cooking up behind the scenes, but I hope any counterattack they’re planning will be swift and decisive. Apple’s patent trolling and Microsoft’s protection money schemes must be stopped, because they pose a major threat to innovation and competition – quite possibly the biggest threat the technology industry has ever faced. The paralysing effect of this patent trolling could be enormous.
And I had thought you’d had enough of that Apple innovation argument. Decided to take it to round 2, huh?
You do realise I’m not Eric Schmidt, right?
Your not fooling me Mr. Schmidt.
I am protected against your manipulations by the tin foil hat I am wearing.
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Wow, all the way down to -1. For the record, I wasn’t picking on Thom. Was just kidding, folks. Little bit of levity amidst all the harsh debates.
Apple does innovate, it’s just that they don’t want anyone else to.
Please list Apple’s innovations.
Please list googles innovations… Or HTCs, or *
“Innovation” is a fairly loose term open to peoples interpretations.
I wouldn’t start this, its just a haven for trolls.
I don’t know anything about Google or HTC. That’s not the point.
The point is that the fan girlies are incessantly hitting everyone over the head with the notion that Apple invented/innovated everything. If so, why don’t we list these contributions for orderly review, and settle this controversy once-and-for-all?
For our purposes, shall we agree to define innovation as: “unique and original technological contributions?” This definition is straightforward and makes sense.
To paraphrase: an innovator is the first one to demonstrate a non-obvious technological advancement.
Let’s list the instances in which Apple was the first to demonstrate a non-obvious technological advancement.
Or, perhaps, the notion that Apple is innovative cannot withstand an orderly and logical examination.
Edited 2011-07-19 19:22 UTC
No, it doesn’t make sense. What is “unique”? That’s really the issue here the tablet covers.
Is it unique to apply a folding cover to a tablet?
If so then thats an incase innovation.
Is it unique to add an extra fold in a cover to a tablet while adding magnets and software response to the cover’s position?
If so then the ipad cover is innovative.
IN any case, I think its a stupid debate. There may have been a gazillion “innovations” in windows 95’s first release, but I still didn’t like it. It was slow, crash prone and worse than many alternatives. What matters to most consumers is the sum of the parts, rather than the parts themselves. Apple may or may not be more innovate than others, but they do excel at putting together thoughtful collections of technology and selling them.
This is what Mr Schmidt/ Thom really means, apple is suing because they aren’t able to compete on the whole of their products. So responding to it by saying that it hasn’t been very original in some of the parts is a non-sequitor and flame bait.
I would guess that the more disputable question would be: “What is ‘obvious?'”
In this discussion, unique means “first” and/or “only.” Fairly straightforward.
At any rate, I paraphrased the definition later in my post to make it a little clearer: “an innovator is the first one to demonstrate a non-obvious technological advancement.”
Did you actually intend to post in this thread?: http://www.osnews.com/comments/24964
If the Incase cover is the first demonstration of that folding method propping something up, then, yes, it is unique.
I am unfamiliar with the “extra fold” so I cannot comment on it, but the magnets might be unique, if the Ipad cover is the first instance of such.
Well, one is certainly entitled to one’s opinion.
We are not discussing Windows, nor are we seeking an opinion poll on what folks like, nor are we discussing what matters to consumers.
The idea here is to determine *exactly* which computer/electronic inventions originated with Apple.
I maintain that Apple is decidedly *less* innovative than others.
Furthermore, Apple’s collections of technology are inferior and thoughtless in many ways (but this assertion is a topic for another thread).
I think that Mr. Schmidt and Thom say exactly what they mean: Apple is not innovative.
I have repeatedly stated and supported that Apple is not original in over 90% “of the parts.”
One can easily call such assertions “flame bait,” but can one make a logical and convincing argument to the contrary?
Edited 2011-07-19 21:59 UTC
Quick reply:
Yes meant to post here, just used the tablet cover as an example because it was fresh and easy for anyone to research.
My point is fairly simple and obvious: innovations are not relevant to “competition” this discussion.
Its all about sales. Sales are determined by consumers. Consumers care about the whole product. Thom is saying that Apple is afraid they can’t sell their products at the rate they would like so they have to sue.
Edit: Its a quick reply because several points you argue have nothing to do with my previous post and are not interesting to discuss.
Edited 2011-07-19 22:30 UTC
It is obvious that Apple considers innovation significantly less important than sales. There is no need to keep berating that point.
Now, let us determine exactly what Apple innovated.
Please list the instances in which was Apple the first to demonstrate technological advancements that were not obvious?
It should be a simple and quick exercise, if Apple is truly innovative.
Why not argue the correct colour of grass in July? It makes as much sense to the relevant question of why apple is suing handset makers of Android. Apple believes it can’t continue to make and sell IOS devices at the rate and price it wants to without intervention of the courts.
Weather they innovate more than Xerox park or less than copy paper manufacturers doesn’t really matter.
I dont like Apple because they are closed and proprietary. Even more than MS.
But we must admit that Apple innovates. For instance, compare mobile phones before iPhone: small screen, a small keyboard. iPhone changed everything.
Apples innovation is not in the technical plane, but Apple piece together a new thing, that modernizes the entire genre. And changes the genre.
For instance, the App Store, now everybody does it.
If we talk about technical innovation, then Sun/Oracle is technically innovative with DTrace, ZFS, SMF, Crossbow, etc.
The Reality Distortion Field^a"c
So that you know… innovate does not mean invent…. it means to make changes and improve something established.
No, you define iterate there.
Noun: A quantity arrived at by iteration.
This is a definition that is somewhat unique to software industry in which what appears to outsiders as trivial and obvious iteration is identified as creative innovation. Not entirely unique but nowhere else is it so much the norm. Kind of a differentiating aspect of software patents imho.
You might be interested in the FTC 2003 report and especially the section on software patents in particular [pdf]http://www.ftc.gov/os/2003/10/innovationrpt.pdf from 2003
They invented computers and the cell phone, duh!
And the color white! And also starship-themed corporate headquarters!
I have to admit though it would probably be cool to work in that building.
What do you mean? There are a zillion of ideas behind a real product. Some are old, some new, some are common knowledge.
Apple “innovation factor” is reflected in a cash flow, as people purchase the Apple products that differs from competitors in a novel ways, thus innovative.
Also you can count a number of copycats, who dump a lot of similar products after fresh Apples’s stuff?
This list includes all serious companies, not just obscure chinese basement factories.
Anyway, I wish that someone wiped the ass with Apple and Microsoft in these dirty patent deals.
Edited 2011-07-20 01:42 UTC
I mean, in which instances was Apple the first to demonstrate technological advancements that were not obvious? Please list them for review.
Shouldn’t be too difficult, if Apple is so incredibly innovative.
I see. So that must mean that Microsoft is significantly more innovative than Apple, since Microsoft has amassed more cash.
We can’t count anything until the fanboys step up and start listing Apple’s innovations.
Please list them individually.
Thank you.
Edited 2011-07-20 06:39 UTC
Nobody can/will do it for you. One need to spend a life digging in patent mess. Usually, a human persons in their right mind will dig themselves for information they are interested in.
iPhone/iPad/iTunes/AppStore was obvious? It is far stretched. Any obvious thing should be everywhere, otherwise it is not. Nothing of that stuff existed in usable form.
Almost everything we use now is predicted/designed in 60s-70s.
Ok, can you show a product with these features and DONE RIGHT? The mass hysteria around Apple products indicate that people finally got a long awated USABLE stuff.
All smart/feature phones before iPhone was an idiotic crap for complete retards. I did programming for them at that time. On a good day I wish at least 25% of symbian developers will dissappear from the face of earth because they should not be allowed to produce any code in their lives.
And I’m not an Apple fanboy. I look from the side of reality that Apple bashers ignore.
MS is incredibly innovative too. But in a lesser degree than Apple. MS doesn’t grow since 2000. And they failed lot of their recent products. Kin/Zune/Xbox(1st gen)/WP7. They can’t create/expand markets. Apple did explosive growth in less than 5 years. And they make much more money than MS now. Much more than anyone except petrol companies, but it is just a matter of time. In two Apple will outdo Exxon mobil. Look, Apple was nothing 5 years ago.
LOL. Seems in perverted troll reality, Apple did nothing and only copying everyone else =)
You’re free to dig through patents.
Edited 2011-07-20 14:04 UTC
Stop avoiding the issue.
This has nothing to do with patents.
In which instances was Apple the first to demonstrate technological advancements that were not obvious?
Please list them individually.
The Beatles haven’t done anything since the partial reunion in 1994. Miley Cyrus has grown tremendously in the last few years.
So, Miley Cyrus is more innovative than the Beatles?
Isn’t that amazing?! But that is precisely what happened.
It’s very difficult to discern the truth from within the RDF.
I completely agree with most of the points you made so far, but there are two ways to look at your question (what has Apple innovated?).
In absolute terms, you’d probably find a good number of features they introduced FIRST, but probably you’d find very few that were not a better implementation of something that already existed.
From the point of view of consumers, APPLE does seem to be more innovative then most other companies. Actually, they are. The only company I can think of that is as innovative as Apple is probably Google. Almost all major product revisions will have something nobody else has. Yet. It doesn’t matter where the technology comes from. What matters is that looking at some of their products, you will see the future. Moreover, they not only sell excellent products, they create entirely new trends.
This is significant, because their corporate message is this: we are special. We are magic. And their are very effective at communicating this to their customers. This is what helps create the kind of emotional bond – extreme form of brand loyalty that no other company can do! Not to the extend Apple can anyway. I can’t imagine anyone selling a kidney for a Google product, for example. Or just witness our local Apple fanboys and their relentless attacks on anyone who dare criticize Apple in any form.
In some ways, this is Apple’s biggest invention: unprecedented brand loyalty. But you asked about technological inventions, right? We all know that almost nothing is invented in a vacuum. In one form or another, they build and improve upon other’s work.
Apple’s core message and communication strategies (see Simon Sinek’s video about this) explains neatly why Apple is perceived at being so special. Part of this image is false, of course (yeah yeah the RDF) – but part of it is real for the vast majority, ie non-geeks.
That makes their latest patent litigation all the more sad – or alarming… depending on what you make of it. The enthusiasm for Apple comes from the fact that 1) actually, they make good products (this is obvious) 2) they are very good at communicating an image that speaks directly to your emotions and does not require any rational thought or self-reflection: You are Special. Think Different. Etc.
Patents have nothing to do with their market share or revenues. Time and again, since Jobs’ return, they proved their ability to do something special. I wouldn’t go as far as “magical”, but you got to admit that even today, you’ll be hard pressed to find a tablet comparable to Apple’s offerings. Question is, would they be able to keep this up?
One way of reading their relentless attacks on their competition (waving ridiculous software patents) is that they may have lost faith in their ability to innovate at the pace they used to. Lets face it – what else is there to be done in the mobile computing space (software and hardware)? Meanwhile, competition is churning out wicked devices like the new LG tablet with 3d video recording capabilities and the likes. Don’t forget, patents have nothing to do with their success – they would still sit on that 50 billion even if they chose note to litigate. What made them successful was being first. We geeks know that technically, they were hardly first with anything, but that doesn’t really matter. They were first with products with something special that made people want to buy them.
Another reading, and this is what I believe in, is that their patent litigation serves one purpose – communicating the message that we were FIRST. This is extremely important to Apple’s core believers. The same believers that helped Apple’s survival during the years Jobs was not there. The same believers that are camping outside mac stores, waiting 6-8 ours to buy the new iGadget. The same believers that make it to the BBC and all major news channels (I recall seeing the picture of a crowd of Japanese on BBC, some with iPhone4 painted on their faces acting completely hysteric on the day of its launch). Each patent lawsuit has a lot of “collateral” marketing value for them, whether they succeed or not. Getting an injunction against one of their rivals is just icing on the cake.
Edited 2011-07-20 20:51 UTC
Apple do innovate … they don’t however invent.
Innovation isn’t about advancing tech or anything else … it is taking an already existing concept that should work but doesn’t.
iPod, and iPhone are good examples …
Smart phones were a bit rubbish before the iPhone came out … MP3 players were a bit rubbish before the iPod came out.
The only reason my desire is as good as it is … is because HTC had to compete with the better iPhone.
Edited 2011-07-20 08:42 UTC
Will correct that for you.
Smartphones were a lot rubbish before the iPhone came out.
Mp3 players were a lot rubbish before the iPod came out.
Love or hate Apple, their maniacal obsession with making things simple for users, at the expense of “functionality” meant that their products were able to look simple, be simple and not be intimidating for users.
I liken Apple to the invention of the automatic transmission. Yes, you can choose a car with a manual gearbox (and I love them, wouldn’t buy an auto, at least not just yet). However, an automatic transmission car is demonstrably better for everyday driving, is simpler and less intimidating, and there is a lot less to go wrong. Frankly, even in motor racing, an auto gearbox is so superior that they had to ban them in F1 because they were removing one of the key differentiators between more and less talented drivers. Just like the iPod meant you didn’t need a geek card to operate an mp3 player, and the iPhone meant you didn’t need to be a computer wiz to be able to find a smartphone useful.
So you corrected that by paraphrasing me then and saying exactly the same again??? ERR …
Also BTW please understand the concept of a paragraph.
Edited 2011-07-20 21:31 UTC
You didn’t finish:
Apple does innovate, it’s just that they don’t want anyone else to… copy their innovations.
Edited 2011-07-19 18:18 UTC
Since Apple holds some of the most basic patents in computing, I would say that they don’t want anyone else to innovate.
You probably heard of “If I have seen a little further it is by standing on the shoulders of Giants”.
Apple’s unwillingness to license out those patents* just makes it impossible for people that want to truly innovate (the most striking example is the 5,946,647 patent). Thankfully those patents haven’t actually stopped innovators from doing their “jobs”.
* – The are not really known to license out the patents, but they do cross-licensing deals. Exceptions being patents in standards that require FRAND patent rules.
That brings up a good point. Many people (me included) describe patents as government granted monopolies on a method or invention. That is technically not true. A patent is more or less a government granted right to deny others access to something.
You can in fact patent something you yourself do not even have rights to make. It is perfectly legal to file a patent which requires another patented method that you do not have license to use. Unless you negotiate a license to said other patent, you cannot actually productize your own patent – but you would still hold the patent, and a 3rd party would have to seek licensing from both the underlying patent holder and you.
I’m only bringing this up because to many people the fact that Apple “hogs” many of their patents seems unfair, but to be fair to Apple that is exactly how patent holders who also productize their inventions are generally expected to behave. Again, not saying I like it or that it is a good thing, but it is exactly how you should expect a company like Apple to behave.
Apple doesn’t even release a Darwin CD anymore or support Open-Gnu Darwins. Xorg+Gnome could not harm Apple.
and all innovations are either blatantly transparent, dumb or stolen.
one example of apple inventing something is this article
http://gettys.wordpress.com/2011/07/18/apple-patents-portrait-lands…
where author describes prior art damn well
This is claim one from that patent (7,978,176). The bold parts are the interesting bits.
His prior art does not apply… at all (he updated his post and admitted as much). Lets break this down:
1. Does this patent claim apply to the use of accelerometers to determine screen orientation? No
2. Does this patent claim apply to automatic orientation changes in and of themselves? No
3. Does this patent claim apply to a non-touch screen device? No
4. Does this patent apply to a touch screen device with automatic screen orientation detection based on accelerometers that uses a gesture system to both override the current screen orientation and lock the new orientation based on the use of a specific gesture and do the reverse process? YES
As far as I am aware there is no prior art for this at all (nothing I have ever seen anyway). It isn’t even implemented in iOS yet. There is nothing infringing on it either (unless someone has seen this implemented before).
Is this innovative? I personally don’t think so. There is nothing new here except the gesture bit, and that is kind of obvious in my opinion. Again, this points out the problems with the patent system, you can add one obvious thing to something everyone is already doing and you get to claim it as your own. Why should Apple “own” the idea of a gesture that switches/locks orientation? Is this not extremely obvious? Its probably something that most iOS or Android users have thought of at one time or another…
I take a difference stance from most on this – I want to see patent law reformed, I don’t have a pet company. I don’t take Apple or Microsoft or Google or whoever using patents as baseball bats a sign of bad behavior – it is a sign of a bad system. Blaming companies with power, money, and talent for taking advantage of the patent system is exactly like blaming people (rich or poor) for taking advantage of the tax system to save themselves money…
As long as the system is setup to let them do so they will take advantage of it. You can’t setup a system like this and expect good behavior… Its like the government saying “Hey look guys, if you do this and this and this you get this shiny gold carrot over here – it perfectly legal, the rules are even setup to encourage it.. But it might be unpopular with those pesky people hung up over morality since it doesn’t jive with what most people consider good behavior, so do whatever you makes you sleep better at night.” How do you expect things to turn out?
To be fair, the actual idea is quite novel. Useful? Maybe to some.
However, does it contain the inventive step? I don’t think so. There is nothing novel about how that is achieved.
Exactly. I’m not sure, but I wouldn’t be surprised at all if parts of this method (automatic screen orientation use accelerometors or some other part) does have patents on it – I don’t feel like digging to find out. Apple may not hold it, or it just may be something that really does have prior art – either way THIS patent is just stupid…
When you strip away all the important stuff (or really, the unimportant stuff as far as the patent goes), this is a patent on a finger gesture… Really? Yes. Really. That is all it is.
The rest of it is fair game as far as Apple is concerned, but incorporate the finger gesture part and boom, lawsuit. There are probably hundreds of trolls over in Cupertino doing nothing more than finding prior art that they can combine with a finger gesture (or something similar) so they can patent it… Everyone else does it too, it’s not just Apple. It’s ridiculous.
Edited 2011-07-20 12:38 UTC
The thing is that something legal doesn’t make it “right”. At least morally/ethically.
There is no perfect system as there will always be ways to overcome or cheat it. Therefore the problem is not the system itself(because any system is,by definition, imperfect) but the society using it. Some might argue that society isn’t perfect either but… isn’t that the whole point? that us, as a society, become “better”?
Just my two cents…
Definitely. I completely agree.
That’s the part that bothers me the most though. Not one is overcoming the patent system, or cheating it. It is structured to allow (actually encourage) all the things most people fall at odds with:
1. Patent Trolling: Completely supported by the system – in fact parts of patent law are more or less constructed to encourage the practice.
2. Iterative Patents: Patents that add a single (usually small) element to an existing one, offering nothing remotely innovative. Again, encouraged.
3. Using Patents to Stifle Competitors: If you read up on patent law, it becomes plainly obvious this is EXACTLY what patents are FOR – that is essentially their purpose. The benign use of patents for “defense” is mostly a modern phenomena that cropped up in response to the surge in lawsuits between big companies – the game of “who has the bigger patent portfolio” was certainly not a preconceived practice.
And on top of that, most of the “good” parts (i.e. disclosing novel ideas for the good of society) don’t really apply to software patents at all – ideas are mostly worthless – it is implementations (code) that would be valuable to society.
If there were some kind of provision that said the code of patented software methods would revert to the public domain after the patent expired I might see some point to it – but that isn’t how it works.
You are making alot of false statements here. “Patent trolling” is understood as purchasing patents with no intent to create products and exploiting a corrupt judiciary solely as a means to gain licensing revenue. This is a fairly new problem but is not widespread or even noteworthy. Reform the funding problem for the USPTO and this problem greatly diminishes in scope.
Iterative patents are not valid. Valid patent applications are required by definition to be non-trivial and non-obvious improvements in order to be valid grants. We may perhaps have a differing understanding of “rapid iterative advancement”.
Your reading of the aims of patent law as expressly for the purpose to stifle competition is just not accurate. That is your interpretation and it may or may not be valid but it certainly is not historically accurate. It is true that aggregation of portfolios for defense, as well as for negotation is new but that is the way cvil law works in many areas. It is a living thing.
Still, arguing that the potential, immoral use of patent grants to stifle competition means that we should abolish them is akin to arguing for abolishing guns, nuclear weapons, etc because their use is predicated on harm. Really don’t plan on discussing this line of argument with you, just pointing it out for your own consideration.
The reality in both cases in the US is that they are not going away. Now proper enforcement and regulation of both is in the public interest and can always be improved by reasoned debate and public policy.
This has been proposed and is an interesting idea to me as well. However then the term of of the patent grant really becomes important and must be flexible to ensure return on investment, and there would be alot of headache involved in managing this. Some owners of grants will not exist (death/bankruptcy) when patents expire and source code is lost. Someone would have to be charged with collecting and making available this source. Penalties for noncompliance and adjudication, etc.
An escrow system of sorts seems like a good idea in my book but in my experience most developers hate it when they are forced into these situations by contractual obligations. They see it as onerous and burdonsome. And what do you do about software this is machine-specific, the depository requirements become extreme.
Would be cool to see such a giant database of source with metadata available for machine learning and an a great resource for advancement of our field.
I personally don’t distinguish between those that buy patents and those that file themselves but do not productize (pure IP companies), at least when it comes to software patents. And I don’t see how it relies on a corrupt judiciary – I’ve seen many bad decisions on patents come from reputable higher courts.
I don’t see a rationale in “pure IP” companies at all when it comes to software – a software method without an implementation is imho just an abstract idea… Something that was never meant to be patented. But if the practice should be allowed to continue some restrictions should be setup. If you do not provide a concrete implementation to the PTO to be linked to the patent in a certain amount of time after filing the patent would become null and void. This would not be terribly hard for a serious IP company to do imo – they don’t have to sell the implementation, but they would have to provide code that can be reviewed publicly for validity. I just don’t see anyone talking about these kind of hard reforms so I lean towards just doing away with software patents entirely.
I define an iterative patent as any patent where the primary independent claims are made up predominantly on components that exist as prior art or in existing patents. They simply add a new element (usually something obvious and trivial). The problem I see is most (yes most) software patents fall into this category. I rarely see any other type. If you have an examples of what you consider a quality software method patent that honestly deserve patent status I would like to see them. I’m not claiming they don’t exist, I’m sure some do, I just rarely if ever see one.
I know that is not the intent of patent law, but the reality of patent law (as applied to software) is that it stifles competition – and that is it’s primary use in corporate America. To properly reform it, terms would need to be MUCH shorter (18 months seems reasonable) and the requirements to get one in the first place would need to be MUCH more stringent. I don’t have much faith in the PTO ever being able to get a handle on that last part, hence why I would rather have no system than the one we have now.
I have problems with the moral use of them most of the time. The fact is a valid patent is one that the PTO approves – whether it should have gotten approved or not is mostly immaterial, it is VERY difficult to invalidate a patent after the fact… With so many bad patents morality has little to do with it anymore. It is companies using bad patents to attack competitors. Its a patent, its PTO granted, suing over it is not immoral, it’s just a inefficient way to make lawyers rich and suck the life out of the software industry.
Simple. Code must be provided to the PTO within 6 months of grant and is linked publicly to the patent (just like the claims are). I would rather see an example implementation required in order to even file the patent, but I could live with a 6 month window. If the filer dies or goes bankrupt no problem, the code is already there. Any grant over 6 months old without a reviewed implementation are automatically null and void. The implementation does not have to reflect a productized implementation, but it does have to fully exercise the claims.
This would accomplish two things. If you cannot express your claims as a pure software method (i.e. things involving UI, finger gestures, other trivial, obvious, concept type things that have no place in a patent) you can’t get one. If software patents are to exist they should apply to actual methods that actually do something, psuedo-design patents (the typical Apple patent) are almost all invalid in my opinion.
But that is mostly a pipe dream i admit – can’t see it ever happening… So I’m back to my original idea, just do away with them.
Again, I really don’t see these rogue “patent troll” companies devastating our industry. Clearly some exist, but I just don’t see their widespread effect. It just propaganda and rhetoric from people pushing their own agendas. However just as credit default swaps were disgusting and bogus, you don’t make selling insurance illegal. You regulate it. If they are making that much money and causing such obvious harm then they will soon be regulated because it is in everyone’s interest that it happen and especially in the interest of some large players with political clout.
The situations that people usually refer to involve patents that are hopeless and obviously invalid on their face. Only a corrupt judiciary (either through negligence or malfeasance) validates them.
You and I are talking about it. There is current patent reform in the House and Senate. I don’t understand why you would not get involved if this is your primary occupation and you have ideas you think are valid. I fail to see the reasoning behind your apathy when the system would be better reformed.
You are making an empirical claim (a rather sweeping, grand one) with no evidence. That’s fine for OSAlert I suppose (after all they post sweeping uninformed generalization as news items!) but there are patent surveys that don’t match your conclusions about how patents are viewed and used by both startups and larger corporate entities. It’s controversial and worthy of further social study.
Also, your conclusion that software patents necessarily stifle competition does not match reality as the US software industry represents one of if not perhaps the most hypercompetitive and innovative case studies in the history of economics especially with respect to scale.
So, just to help me understand. The USPTO will never be able to examine a software patent application and deny it correctly, but you yourself somehow have the magical ability to do it because you admit there are worthy patents and unworthy ones. And the USPTO will never be able to hire someone as gifted as yourself and therefore the entire system should be scrapped (with no alternative that makes any sense).
You will not get my vote in this matter but you should let the Tea Party know about this, they think every facet of the government is incompetent too and are looking very hard to drown the baby in the bathwater.
That is not correct. Acceptance alone does not constitue validity. I could be wrong but hasn’t at least a few of the Oracle patents in Oracle v Google aleady been declared invalid which is one of those OMG THE SKY IS FALLING THE SYSTEM IS BROKEN cases?
It is not that difficult to have a patent declared invalid especially in the first year. Costs less than getting one actually because you can do it for free. Now disputing a reviewed patent application, that’s harder obviously.
Why is it a pipe dream? Sounds reasonable to me but I’m sure the time frame would have to be flexible based on the category of the application. People pursuing a patent grant are engaged in a transaction, you’re not altering the essence of the bargain (the limited monopoly), just the price.
Not2Sure,
“Also, your conclusion that software patents necessarily stifle competition does not match reality as the US software industry represents one of if not perhaps the most hypercompetitive and innovative case studies in the history of economics especially with respect to scale.”
1. The reality today is that most of us developers simply ignore software patents and get along ok until we’re sued. As such, it’s not really evidence that a strong software patent system is workable.
2. A strictly enforced patent system (even one with reforms) where everyone is forced to participate will result in much more overhead for all software developers (Time/resources/lawyers/fees/etc).
3. On the whole, a strictly enforced patent system will shift resources away from project development and into patent compliance/licensing funds.
Some of the developers will be able to exploit their monopoly to become rich, but can this really justify imposing such heavy burdens across the rest of the industry?
Edited 2011-07-20 22:02 UTC
The judge can still make them valid. And it took Google a lot of manhours of people that cost a lot of $$$ per hours to get them through.
Note2Sure,
“‘Patent trolling’ is understood as purchasing patents with no intent to create products and exploiting a corrupt judiciary solely as a means to gain licensing revenue.”
Define it however you want, but the essential problem remains, patent holder A who took zero part in the R&D efforts of company B are never the less encouraged by patent system to sue company B for infringement. This happens all the time in the majority of software patent lawsuits. None of the patent reforms I’ve read acknowledge independent implementations. I believe patents are fundamentally unworkable because of this, but maybe you have suggestions as to how reforms might help?
“Iterative patents are not valid. Valid patent applications are required by definition to be non-trivial and non-obvious improvements in order to be valid grants. We may perhaps have a differing understanding of ‘rapid iterative advancement’.”
Patents are certainly allowed on top of other patents…which is exactly how I interpret “iterative patents”. You said patents can be improvements instead of new inventions, so I’m not really sure what you mean when you say “iterative patents are not valid”.
“Your reading of the aims of patent law as expressly for the purpose to stifle competition is just not accurate. That is your interpretation and it may or may not be valid but it certainly is not historically accurate. ”
We all have differing views on historical intent. I put emphasis on the utility of encouraging the dissemination of information into the public domain. But even if one of us is right, it wouldn’t matter because they were invented for a different time. Had they had the benefit of knowing what we know today, and the extent to which their words would be minced apart and deliberately misinterpreted by scores of lawyers, the whole constitution would be much different and possibly subject to less abuse.
“Still, arguing that the potential, immoral use of patent grants to stifle competition means that we should abolish them is akin to arguing for abolishing guns, nuclear weapons, etc because their use is predicated on harm.”
But it does depend on how they’re being used. With patents (or weapons per your example), the degree of actual manifested harm depends on the ratio of self defense versus offensive attacks.
With regards to weapons, they will exist for criminals whether or not government permits them. It can be logical to allow weapons to sold for defense.
With regards to patents, they do not exist if the government says they don’t, there cannot be software patent trolling if we agree not to adopt software patents. Patent trolling is an invention of the patent system itself. If the system is found to benefit trolls more than honest developers, we are completely justified in asking for it’s elimination.
“This has been proposed and is an interesting idea to me as well. However then the term of of the patent grant really becomes important and must be flexible to ensure return on investment,”
I bring this up over and over again, but why is it only those who are first and can afford to go through the patent process that should get a return on investment?
In a marathon, only one runner gets to be “first”. In the case of the marathon, the winner gets recognition and bragging rights. But even second place and third place get a prize and recognition. In the case of patents, the winner gets recognition and bragging rights as well as a monopoly, but the patent system completely shoves all others to the curb. How do you intend to fix that with patent reform?
Edited 2011-07-20 19:29 UTC
Original intent of the patent system, was so that the guilds that held trade secrets would share their knowledge in return for monopoly over their methods. Otherwise their knowledge was transferred via apprenticeship.
In the middle ages, the secrets of Venetian glassmaking were closely guarded guild secrets that were shared only with the guild members. And same was with other trade guilds…
A) That may not be a purchased patent an inventor may be the troll there. A patent troll is otherwise known as a Non-Practising Entity. NPE – a company that does not produce any products, so other patents cannot be leveraged against it to gain a cross-licensing agreement or ensure MAD. And according to Bloomberg news they are on the rise.
B) Problem is that there is nothing corrupt in the judiciary system, that enforces the law.
It seems that USPTO is only the result of a problem in the system. Maybe you should start advocating a reform of the system, since system reforms result in longer term solutions. Just fixing USPTO will only heal some of the consequences of problems in the whole system.
You may be a developer and may know that making patches upon patches to a systematic problem will only result in problems arising later.
I would argue that the right of exclusive patent licensing should be revoked in more cases than just monopoly.
For example, if a technology proliferates* in the industry to a certain degree that it becomes essential for a new company to be able to compete(something like an expected feature), then the company that has that patent should be forced to license it on an non discriminatory basis.
So that, as long as the company keeps a certain feature exclusive to their products, they are free to discriminate who to license it to. When that feature becomes essential for competing products, then the patent is stifling competition.
* – Due to licensing or cross-licensing agreements
Floated that idea already:
http://www.osnews.com/permalink?481660
Edited 2011-07-22 03:58 UTC
Where is the trolling?
I assume it’s “innovation” / patents actually used in Apple products they sue about? And if so I don’t see the trolling. If they just patented for the sake of patenting then maybe. Now they are just using the patent system for what it’s supposed to be used for. Even though it suck.
Blame the patent system and not Apple.
Blame Apple for everything else.
They should have held this public vouch of support sooner.
These types of things can affect companies share prices.
But they probably have been in communication with their hardware partners from the start.
Edited 2011-07-19 17:49 UTC
The entire industry needs something like this, but on a larger scale:
http://www.openinventionnetwork.com/
All the members would have to pay fees to make use of patents, and there would be no litigating against other members. There would be an incentive program worked into it for companies that come up with worthwhile patents for the group or adding existing ones to the portfolio.
Keep in mind, the price of admission for something like this could potentially be used as a barrier to keep smaller companies from entering the game. All of the current members could simply vote to raise up the prices to stop new members. At some point in time, the value of everyone sharing the same pot of technical tools will become less with each increasing member (from the point of view of the companies) because that’s just one more area that won’t be available to use as a selling point to differentiate between companies who’re offering competing services. What’s good for a company isn’t always what’s good for the consumers & vice versa.
Google won’t stand up and indemnify their OEMs they don’t stand up for their developers or anyone! Google didn’t think this though at all! How you gonna be on the board of directors of a company like Apple while the company you are CEO of is about to put out a directly competing product?? Duh! And you didn’t sign a single license agreement with anyone?? All the while MS is claiming 255 patent infringments on Linux? Even if they have not been proving you should of known that would be trouble!
If I was companies like HTC and I lost, I would sue the hell out of Google for bait and switch!!
Why all the emotion? Are you an ODM? Or a developer? If you’re an ODM, then you’ll be no less angry at Apple for hogging all of the quality mobile component supplies. And Microsoft for unreasonable demands for patent licenses.
If you’re a developer, you’re pretty much screwed not matter what mobile platform you develop for. Apple has done not much more that Google in defence of their developers. That letter that Apple sent was quite useless to developers.
Because you aren’t, you are not really in the know what were the terms and conditions when adopting Android for HTC.
Other mobile vendors such as RIM have long paid j2me licenses for example and are put at competitive disadvantage by cheaper handsets alledgedly infringing on that intellectual property that do not pay the same licenses. An extra few dollars on a BOM for a handset is no small item. So it is easy to see how say a RIM developer with an app competing against an Android app could have a justifiably angry response. Not sure how many real mobile app developers put all their eggs in one basket anymore however.
This is true and it is really disheartening how many people invest so many hours of their productive lives into endeavors that they don’t take the time to understand or account for the actual risks/profitability involved. People herald the extremely low barrier for entry of software startups, but it is not really that low when you take into accout the actual costs. Still much easier to get started than most ventures though.
It is also depressing to see the failure of Bada, Meego, Symbian which were to differing degrees attempting to become open platforms for developers. Bada is still an intersting niche shipping more units than WP7 without the fanboi posturing.
You can’t really blame the major mobile platform vendors like Apple, RIM, Nokia, etc for not affording indemnfication to developers. In their view, they are providing the lucrative sandbox and investing alot of money to produce it after all. As a developer I take extreme affront at the amount that Apple/RIM/etc deem appropriate to take from my pocket to play in that sandbox however. That huge percentage they take far exceeds the actual costs and a reasonable profit margin involved in providing the App Store(tm) infrastructure: its usurious.
What makes the criticism appropriate to Google wrt Android and the lack of indemnfication however is they are not providing any sandbox for developers. They are just providing software to hardware partners under the rubric of openness with none of the protections usually afforded to developers by actual openness if you believe the allegations of willful wrongdoing that have been levied against them.
With RIM, Nokia, Apple etc at the very least you can conduct business and develop apps for their platforms as an independent developer knowing that if they infringe in the software they provide to you, their revenue is also at risk probably moreso than yours. Google doesn’t have to care, they have no skin in the game at least until Oracle v Google is decided and I can see how it could feel like a violation of trust.
What the hell is “sandbox for developers”?
I will defend Apple here, the cut that they take isn’t actually too big. Remember they have a review process to pay for.
I would imagine it consists by now largely of automated compliance testing. Followed by extremely brief Amazon turk style user installation and UI walkthrough and the “not actually too big” percentage is justified by the wide deployment scenario and managmenet of carrier billing. Grass is always greener effect I’m sure, but I can’t imagine that costing a fraction of the revenue.
Would love to learn more if you have any actual information to offer about either AppStore or some of the Android marketplaces do what you imply is human testing. Would be kind of interesting. I know pretty well how Ovi and RIM do it and not alot of person hours involved.
How can this be fixed? I think not allowing for software patents is the wrong answer for many reasons, including just a lazy answer. But how could this be fixed to allow for proper innovation and competition, but also protect a company or individuals time, money and effort into developing new software?
I am no expert, but I think a start (just a start not the ultimate solution) would be for the patent office to have a review committee made up of software engineers that have to approve patents. Also, if there is a dispute, it has to go to arbitration between the companies with the arbitration panel made up of a representative from the patent review committee and other software engineers. Then if the arbitration panel makes a decision and one company chooses not to follow it then a lawsuit is filed and a complaint made to the ITC. I think this arbitration panel should have the right to invalidate patents if they feel thy are to vague, or covered by prior art, and the patent office has to respect that decision.
It’s not a lazy answer – it’s the only correct answer. Patents were created to grant a limited monopoly for an invention. Software design is an abstract concept and does not become an invention until the code has been written, compiled, and tested. But the code itself can’t be patented since it falls under the umbrella of copyright. When we allow software to be patented, we allow the idea itself to be patented rather than the invention.
That is exactly what is supposed to happen while a patent is under review. However, it is much more lucrative for the patent office to collect the submitter’s $1500, rubber stamp the patent application, and let the courts sort out the mess.
This is not entirely accurate RE: Bilski and is a common misconception spread by people like Thom Holwerda in support of an agenda. Only software specific to a “machine” or that is a transformative process is patentable. It is murky but that is not the fault of the intellectual property theorists or jurists. There have been much reasoned debate and with industry feedback that have generated real proposals to update and reform this area while maintaining protection from “free riders”.
You are impugning the motives of extremely overworked and underfunded people. The primary issue (imho) in patent reform is that the fees collected are not utilized by the regulatory agency to fulfill its mandate. The revenue is “diverted” by Acts of Congress to other pet projects leaving the AJP of the USPTO extremely overwhelmed. And yes, some unscrupulous people and corporations have abused this system in the all-encompassing quest in the United States for short-term economic gain, long-term effects be damned. It is corruption at a high level and has several times tried to be corrected by legislation that has been killed.
It is also part of the current patent reform legislation stalled in the Senate and House by the absurd “debt ceiling” crisis that has basically frozen any legislative debate on any topic.
How many cases do we have to present to you people on a platter that that is not the actual reality. Maybe the fact that even EPO, with it’s much saner policy, does issue software patents. Or maybe any number of actual court cases, even outside of TX, in favour of software patents.
How about you start with one? And for every one questionable patent, how many do you think there are that are valid?
Oh, thats right, in your worldview there are no valid patents and anyone should be able freeload.
In case you haven’t realized it, and I’m sure you haven’t because I’d wager with your view that you have never launched a startup or shipped a commercial software product, software patents are a solid way to gain VC in the US. Find your favorite successful startup. Now go look and you will find software patents in their name.
And startup culture in the US is uniquely successful. You would expect with the EU “freedom” from such burdens, worries, and risks that software innovation would just be flowing like water.
How is that working out btw?
Reality bites.
PS: Since software patent trolling is now apparently the greatest danger ever! to independent sofware development how do you account for the huge jump in revenues, number of small ISVs during this “crisis”?
The issue is reform of the patent office not patents themselves.
Not2Sure,
“In case you haven’t realized it, and I’m sure you haven’t because I’d wager with your view that you have never launched a startup or shipped a commercial software product, software patents are a solid way to gain VC in the US. Find your favorite successful startup. Now go look and you will find software patents in their name.”
I must object to your opinion that legitimate businesses can’t function without software patents.
Software patents increase, not decrease, the barriers to market. Seriously, the vast majority of small and medium sized IT businesses don’t have a single patent to their name. They rely on good old fashioned customer service and skill to sell their services. They should be entitled to try without worrying about what others may have done.
I presume validated by courts is a valid patent for you? Because legally valid is legally valid.
http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supreme-cou…
http://news.swpat.org/2010/05/german-court-ruling-upholding-siemens…
http://news.swpat.org/2010/05/german-court-ruling-upholding-siemens…
http://fosspatents.blogspot.com/2011/04/texas-jury-finds-against-go…
6 startups to this date. Working on 3 more ideas.
As for products? 3 consumer oriented and numerous business oriented.
I like Rovio. 0 patents. Thanks for playing…
You think that’s due to software patents?
It would take me a few days just listing out issues with VC funding and startup culture in Europe. And NONE of them are patents.
Yeah, doesn’t it? When you look at it, you think you’re talking to just another idiot on the boards, while in reality you just may be talking to someone who’s actually smart.
Maybe because most ISVs don’t care about patents at all?
Cool, give me a link to one of your startups. I’d love to learn more about the serious software products you are creating that you think do not deserve intellectual property protection. Seriously no sarcasm, post a link. I’m always looking to learn more about how people choose to compete in the marketplace, or I guess in your case choose not to compete.
And a gaming publisher. In Finland. You’re serious. That’s your canonical example?
Ok.
Because we were discussing you know, software patents in the United States. Not trademark and copyright law covering entertainment content.
Also, Rovio has sued Roxio (the creator of CD burning software for trademark infringment because it’s name is too close (lol)) and is suing Ideal Toys’s for creating stuffed pigs that look too closely like the video game.
Finally afaik and my memory is not perfect, but AngryBirds (the title that saved Rovio from bankruptcy) utilizes the CrystalSDK from Chillingo (now EA) for leaderboards and friend finding which is.. oh nevermind I will let you find it.
Well I hate to tell you this, but US software patents are part and parcel of US VC culture. Good and bad. I did not say it was the sole factor, that is what you black/white thinkers want to project on anyone who is not for removing intellectual property rights from software. Anti-patent is pro-innovation! Pro-patent is anti-innovation! Puh-lease.
So you seem to be saying that software patents in the US are bad and as a result innovation in the US should suffer. So you are arguing for a counterfactual which can not be proven. However, the absence of these factors in the EU should promote a culture that promotes innovation (you claim it is overriden by stronger factors)
I think, and the Berkely Patent Survey published a few years ago seems to provide evidence that my experience is not unique, that software startups in the US seek patents with zero thought about NPE or patent trolls, but for defensive and strategic aims, such as avoiding a lawsuit and engaging in potential cross-licensing negotiations. If you are uninterested in those competitive forces or can find VC’s who share your views than general happiness ensues.
That is not the reality we live in in my local startup culture. And software patents will follow trends in entrepenuerial culture not start them.
http://www.touchmessengerapp.com/
http://www.pixel-punch.com/
http://www.bce.lt/
You asked me for a startup that I like. And I like Rovio.
And please, we’re not playing Six Degrees of Kevin Bacon here.
You do, however, insinuate that not having software patents(though we do) leads to lower level of innovation. So I tell you the exact same – Puh-lease…
My claim is that with patent reform US culture should spur more innovative companies.
In my entire career I don’t believe I have ever come across software that doesn’t run on a machine or wasn’t transformative.
I haven’t seen any good arguments for software patents nor have I ever witnessed “reasoned debate” on this subject. Regarding the “free riders”, that sounds like a statement against patent trolls, but that doesn’t change the fact that software patents grant monopolies on ideas.
They choose to participate in a system that is fundamentally broken. While I don’t blame them for the broken system, I don’t have any sympathy for them either.
The fees are diverted because government agencies are not intended to be run like for-profit businesses. If the USPTO was allowed to keep these fees for themselves, there would be an incentive to rubber stamp everything that ended up in their mailbox so that they could maximize their earnings. However, under the current system they are still motivated to rubber stamp everything so that they encourage more patent applications and justify bigger budgets from Congress.
I have not seen anything in the new legislation that dissolves software patents or discourages the USPTO from granting overly-broad hardware patents. The only thing in it that would seem to have a measurable effect in reality is the first-to-file clause, and that is an entirely separate debate.
Really, you have never come across state machines, or algorithms which are IDEAS and software that prolongs the life of a batter on a mobile phone operating in the bandwidth of xxx Hz which is software operating on phsyical hardware.
Seriously.
Use Google. Avoid fanboi tech sites. Look for primary sources like the FTC 2003 report, the USPTO 2010-2015 strategic plan, the USPTO 21st century strategic plan, elements of which were adopted into proposed legislation that never made it to floor debate.
This is absurd. There are at most 2 or 3 profitable agencies in the US Govt. The agencies for regulating mining and oil licenses and the USPTO. Do you even have any idea about what you’re talking? Do you understand the case load of adjudication that has increased by orders of magnitude in the last decades while funding has remained flat as fee revenue is siphoned away?
You are either entirely either without clue, or do not believe in a system of laws. Of course it doesn’t dissolve software patents. Because that would be f-ing abusrd.
The reasons for overly broad patents in all areas not just software (aka non-quality patents) is that the workload and technological requirements have increased and the funding to accomplish the process review have not. Put it on a simple graph. I’m sure you will be able to see the problems with the curve.
But I guess in your world of “pure” ideas battling it out there aren’t things like disputes in need of adjudication by actual people. Which is you know, how the law functions as a social institution. Two parties file patents to protect genuine intellectual property rights. One absurd, the other valid. Both receive very little time by qualified staff. Fine they are both granted. Oh no! Patent lititgation! Horrible costs of about, oh, 10-20k US starts an administrative review. Here is the problem. The caseload for AJP is astronomical and the staff has not grown appreciably in years. So it drags on for years and costs accumulate. It is a process problem not a problem of principle.
Making USPTO fee divertible is part and parcel of the current act. Go read it. kkthx.
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.
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.
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.
So you’re a mature person trying to find a solution for other people, while not actually having any experience in the field. Are you a lawyer?
You’re like a layman trying to advice cancer researchers on possible cures for cancer… see the problem?
I am someone who reads about all these patent lawsuits and recognizes a problem. But most of the responses I see are just to abolish software patents. I am an educated person that feels that that answer is just to simple, and to me seems lazy.
I wouldn’t say that I am like a layman trying to advise cancer researchers on a cure for cancer. I am a layman that is trying to understand how cancer works and why the current attempts at a cure don’t work. Just trying to educate myself.
I only mentioned the maturity part due to the immaturity that had occurred in another response. Also, I am hoping that as a community others could offer suggestions in order that together we may be able to devise a possible solution. Sometimes people on the outside see things differently than those on the inside, and different perspectives aren’t always bad.
And you think it’s lazy because you don’t know what you’re talking about. You’re talking out your bum to people who actually walk the walk and telling us how our business should be conducted. This is not mature. It in no way helps solve the problem. All it does is muddy the waters and make it even more difficult to actually fix the problem. Copyright protection is all that is needed for software. A free market and innovative and well run companies will continue to innovate, make tonnes of cash and contribute a generally healthy economy without any software patents.
Asserting anything other that that without having any sort of experience and giving ridiculous examples on why we need patents is immature. You sir are less mature than anyone who has responded to you. You are a part of the problem. So, until you have something valuable to contribute why don’t you shut your mouth and try and read a lot more to understand the problem. Then maybe we can have a mature discussion.
I am trying to have a mature conversation and to understand this better and seek solutions. i am not the one that started with the insults. I may not be a software developer but I would think that if I spent considerable time and money developing something (software, hardware, whatever) and someone else with more resources, influence, or marketing muscle can just do the same thing because they like what I created seems wrong. I don’t think I need to be a developer to see this problem. Of course others responded with informative mature answers to help me see this from their perspective, and that is all I am looking for.
No, you don’t recognize the problem. See, the software you spent 100.000 man hours developing already infringes on dozens, if not hundreds of patents. That is, if it’s more complex than “Hello World” – which I presume it is.
Educated maybe, but certainly not informed. If you had any clue about what’s happening in the software patent scene (and how the software industry works) than you wouldn’t have come up with such a silly example. Software/ideas patents are by definition, uncontrollable. There can’t be good or bad software patents. Or rather, it would be impossible to establish an authority that could decide objectively whether an idea is worthy of patenting or not. Establish a panel of software engineers? But most patents don’t actually cover software! Besides, software engineers … you know, write software. At least the talented ones. They are not sitting in committees or panels.
The community came up with an excellent solution. It’s simple, elegant, and effective: abolish software patents – or limit it to 6 months or something. Now I understand that you don’t like this idea because it’s a “lazy” solution. But you demonstrated laziness yourself when ignoring the vast amount of literature on this subject (your example scenario is evidence to that).
My guess is that you are just trolling, but anyways I’ll bite.
The problem with SW Patents are not that they exists. The problem is that many, many (perhaps as many as 90%) of all the issued patents are obvious even to an undergrad in CS. During the late 90’s some of the larger companies (SUN, AT&T etc) had internal competitions for who could get the most obvious patents approved…
Now that is not much of a problem because if it is obvious you can most likely find prior art.
However if the patent owner (patent troll) is well funded (lets say has $100M++ available for litigation) then you as a real software company do not stand a chance in court (because you may only have 100K ++ available for defensive litigation).
So you settle, to avoid further problems.
This is similar to the small “drugstore” in “Little Italy” paying protection money to the Mafia, or else..
Ouch. Take it easy on the guy. He’s attempting to understand the problem and make an informed opinion. The solution for this problem is going to require the support of people who don’t develop software for a living. Let’s focus on educating these people so that they can see why changes to the patent system are necessary and why our proposed changes are an improvement.
I wasn’t really trying to insult. But rather to show that as a rational person he needs to first understand what it takes to write software, where copyright comes in and where patents come in.
His logic is probably the same logic that jurors apply during patent cases with juries.
Sorry, I didn’t make myself very clear. Let me put it this way:
Question: How can we fix the problems with the patent system in regards to software patents?
Answer: No more software patents.
Answering the question this way is what I think is lazy. I did not mean to imply that that is not a valid solution I was just trying to get more information than just no more software patents. How would no more software patents be a good thing? What are the drawbacks, if any, of eliminating software patents? Is the copyright system enough to protect developers from theft of their product?
No I’m actually one of those people that actually though of both sides.
http://jalexoid.blogspot.com/2011/07/software-needs-new-ip-protecti…
I think that blog post is perfect. It addresses the problem, explains it in an easy to understand fashion and offers a starting point for a solution. This is exactly what I was looking for.
Lol, you’re comparing yourself to a cancer researcher. Funny I’m pretty sure pharmaceuticals are patentable. Rich.
Actually, patent law is derives its power in large part from the US Constitution. So the views of every citizen on the matter are relevant. Your opinion as a “well whatever you pretend to be on your lunch break on the interwebz” has exactly the same value as anyone else. And given your rhetoric, probably even less.
Those who want to end software patents in the US should quit whining and start drafting an amendment to the Constitution. The Copyright clause is unique to the extent that it is so specific. Deserves to be cut out. I’m sure it will gain widespread support. Maybe tie it to a “internet access is a human right” and “net neutrality”. I could see it.
The view of non-citizens are the only ones that are irrelevant, no matter how much they protest otherwise.
A) I am not comparing myself to a cancer researcher
B) I stated it a lot of times – I don’t f****g care what the patent law is in US. As long as US corporations don’t try to force the same patent law onto other countries or use US market as bait to enforce their patents globally. You can go ahead and search for my rants on HTC+MS deal and how they compare ethically to even Lodsys*.
C) On the other hand software patentability is a philosophical question, not a legal one. A legal one would be – How do we interpret the EPC’s “as such” term?
D) The simple fact is that I believe that software was squeezed into existing frameworks (copyright+patent). And that is not good IMO, as software has different/additional attributes compared to what copyrights and patents were intended for.
* I find Lodsys to be ethically on the high ground compared to MS, since Lodsys are asking for a cut of profits from US sales. Which given that US has software patents, is a reasonable demand. MS however are taking a cut from each phone globally(According to most insiders and most unaffiliated news outlets).
When you comment on something on which you don’t have any experience in expect those in the know to be a little offended when you try and come across like you do. Your comments are exactly the sort of uninformed opinion of laymen that has brought us to this point. So forgive me for being just a little put out when someone who doesn’t have a clue tries to push an agenda that directly affects how I put bread on my families table.
I am sorry if I offended you, but I don’t know what agenda I was trying to push. I am simply trying to listen to the ideas that others may have to fixing the software patent problems.
Here’s a clue: you painted all people that support abolishing software/ideas patents with a rather wide brush (lazyness). And you’re are surprised by the reaction and talk about how mature and educated you are.
I do realize that saying the answer was lazy came across wrong. It isn’t that I feel abolishing software patents is not the correct solution, I was just trying to get more reasons why it is the correct solution. I was more thinking that if your only response is “No more software patents” without giving reasons is lazy.
Not in direct response to molnarcs, just some more thoughts
I think it is worth while for software developers to educate, not mock or insult, those that really want to know the problem. If the problem with the patent system is ever going to be changed (of course whether anything gets changed by our government is an entirely different topic) it will have to be done by lawyers, politicians, and the voters, of which I think it is safe to say a majority are not software engineers or patent attorneys. So I think if anyone that is not a software developer tries to learn more of the problem that developers are facing, and in the process show their ignorance, it would be best to try and help them understand. Insults and mocking just make someone not care.
Sorry if I sounded a bit harsh… You’re right, the only way to change things is to make the public aware of the threats and problems software patents pose.
Unfortunately, because of the nature of the problem, this is really really difficult to communicate. You have to do marketing at the level and quality of Apple to get the message across, and though there is plenty of incentive to do it, there is not much funding.
The easiest solution is to abolish or not allow software patents. Another solution would be to severely limit their validity – 6-9 months is a reasonable time period, anything longer would not make much sense in the software industry (except for the current players, of course).
Anyway, software patents were defeated in the European Parliament a couple of times, but I do think that the EPO is just waiting for an opportunity to smuggle it back somehow. They are relentless. There is Big Money in patents and a lot of interests involved (protecting market share or simple extortion). We must stay vigilant.
malnarcs,
In the end, you are absolutely right in that it doesn’t matter what the arguments are or who can make the best case. All that matters is who has the most resources to affect change. All of us put together still cannot touch the resources of the “think tanks” funded by incumbents, they can win by default.
The public masses at large are disinterested/ignorant of the issues patents pose to software developers (and others). Even I have to admit that monetary policy and health care are more important than patent policy, we are perpetually on the back burner. Unfortunately this means that our niche issues will never ever see the light of the democratic process.
The only exception to this as far as I know has been when niche issues come up due to religious incitement. So I guess the question is, can patents be brought up in a way which riles the religious base?
Edited 2011-07-20 16:24 UTC
Just to be clear, software is currently covered under copyright and patents. I am suggesting that copyright protection alone is more than adequate protection.
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.
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.
Thank you for this answer. It definitely helps me understand this better.
You’re welcome. One down, approximately 300 million more to go.
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.
Care to elaborate?
I never said that software development is simply sitting down and thrashing out code. However, the code is the final product of all of the planning, requirements, design, and testing. It is the sum total of all that work and is much more valuable than the overly-broad garbage contained in a software patent.
The numerous promotions I have received recently tell a different story.
Your guess of my occupation is nowhere near on-target. Let’s just put it this way: it’s not web-based and it requires years of planning before a single line of code can be written.
Again, the code is the end result of all of the planning that went into the project. Just because a project takes a lot of planning and a long time to produce results doesn’t mean that you should be able to prevent other people from doing all of their own work to produce their own implementation.
organgtool,
“Again, the code is the end result of all of the planning that went into the project. Just because a project takes a lot of planning and a long time to produce results doesn’t mean that you should be able to prevent other people from doing all of their own work to produce their own implementation.”
As a developer who writes original code all the time, this seems dead obvious to me.
What is it about the mind set of non-devs that creates the impression that only the first implementation of an algorithm has R&D costs and that subsequent implementations are free?
Why is it that nobody but the developers can see that the software patent system is inherently not scalable, and that we are already past the point of diminishing returns?
Why are there so many posts that say “if I wrote software then I’d need patents because…” when there are already many software developers here who actually do write software and don’t need patents?
I don’t understand why people are so surprised when they hear that software developers don’t like patents.
I don’t understand why people are so surprised when they hear that software developers don’t like software testing.
Show good developers the value of testing and they incorporate it into their work. Same goes for patent work.
Only downside is it involves working with lawyers who generally lack the technical ability and social skills to work well with engineers.
I have often thought it would be a useful career path for developers when their productive years are behind them to become useful in this process. Currently it’s become a manager or die which sucks. Would have the advantage of making patents granting/review process better and also I could see a journalistic endeavor whereby useful patent grants are communicated to a wider technical audience in language they understand and appreciate (thinking of the I dunno the semi-regular occurence of engadget or wired-esque posts of “hey look Apple filed a patent to do X” without all the gee-whiz fanboi pandering)
The problem is that a generally despicable cadre of professionals (“lawyers”) for probably good reason have set themselves as the gatekeepers here (“the bar”) and don’t welcome outsiders doing “their” work. At the other end of the spectrum are some unqualified govenment beaurocrats that like their job security.
Not2Sure,
“I don’t understand why people are so surprised when they hear that software developers don’t like software testing.
Show good developers the value of testing and they incorporate it into their work. Same goes for patent work.”
Testing has intrinsic value because customers appreciate it. A company which doesn’t adequately test their software opens themselves up to better competitors, which is a good thing for consumers.
Patenting has value because the government gives holders an artificial monopoly. Customers couldn’t care less about patents themselves. A company which doesn’t adequately patent their software opens themselves up to better competitors, which is a good thing for consumers.
Edited 2011-07-20 19:44 UTC
There are numerous examples of case law showing that to be an untrue statement… Many people have succesfully sued over software copyright infringement – orders of magnitude more have settled out of court.
Counterpoint: Show me a software product that is heavily protected by still active patents (to the point that making a clone is very difficult) that is BOTH poorly written AND successful? There are examples, and they fail into the “we use it because we have no choice” category. As soon as the patents expire or get worked around though one of two things happens – the software gets ALOT better… or the product dies.
I would content that the industry as a whole benefits more from the absence of such products… They only exist because of patents. Removing patent protection from the software industry would immediately increase the quality of the products. No one would “have no choice”. My contention is that poor software quality is a MUCH bigger problem in the industry than lack of ideas…
Try making a slow, buggy social network website and see how that turns out for you. If anything removing patent protection from software adds value to the act of writing code… The reason that badly written products can fly in today’s market is at least partly because if your ideas are patented you don’t have to care much about quality – you can just threaten your competitors to keep them off your back.
Thats exactly it. Hardly any of the costs are just typing it down. Neither are any of the costs coming up with what to type down. Ideas are cheap, so is code. Good ideas are even cheap, but good code is definitely NOT cheap, and there is WAY more to it than just the idea it expresses.
Developer’s don’t like patents because it devalues their work, not the other way around…
You are equivocating. Of course there are copyring infringement cases because copywright is well-established method of protecting works of speech acts. So, if someone takes your source code and includes it in their work verbatim or for the most part, well duh.
That is not what we are talking about here. Obviously. If you think that copywright protects the design of your application coded in your source code, you are sorely mistaken. But of course, you don’t think the design is worth anything (even though it constitutes the majority of software development costs and expertise) so it doesn’t deserve protection as intellectual property. Here we differ and you will not convince me otherwise.
I have no idea what this is a counterpoint to. It seems like a tangent you wanted to make. But yes, that is part of and the POINT of the patent system; especially existing international patent treaties. It encourages designing around existing patents because that encourages and fosters innovation. That is why overly broad patents are not valid.
Again, duh.
How is this even possible? You suggest that Software application A exists and is poorly constructed and contains one or more patented components. Now, someone sees application A and says that’s junk lets build application B that is “better.” And I use the term “better” loosely because in my experience all software is utter crap and a “work-in-progress.”
In your view B simply comes to exist. In reality, B exists only because of A’s “poor qualities”, ie B doesn’t exist without A. So the software industry, or consumers, or well anything but extremly poor history novels are better for there not having been an A.
B is actually better for having fostered the need to design around and innovate solutions that do not infringe on the patented components of A. I’m sorry, but this seems trivially obvious.
Someone already did that, it’s called Twitter, I think it worked out. Also you’re just now parroting bullshit. Patent trolling activity that you claim does not exist in any widespread fashion. People pushing an agenda who wish to see intellecutal property right enforcement removed from the social contract targetting software patents use it. In your view, Apple, Microsoft, Yahoo, Google, well basically anybody who has ever entered into patent litigation with an aim to enforce their legal rights vis a vis a patent are “trolls”.
That’s absurd.
That makes absolutely no economic sense. Sorry. Thanks for the comments.
Not2Sure,
I’d like your input on a post I just posted in another thread about copyright/patents as they’d apply to movies.
http://www.osnews.com/thread?481758
If you disagree that patents should apply to movies, then please state the reasons why.
“If you think that copywright protects the design of your application coded in your source code, you are sorely mistaken.”
It protects one from blatant ripoffs, it does not protect from new implementations, but new implementations should be permitted for those willing to do their own R&D. In some jurisdictions copyright also prohibits reverse engineering (a reverse engineered work is considered a derivative work).
Also, reverse engineering binary machine code is not trivial. The motivation for reverse engineering almost always about security or compatibility. It would be incredibly unusual for someone to reverse engineer code with the intent of reimplementing it since it makes more sense to jump directly to “implementing it”.
“But of course, you don’t think the design is worth anything (even though it constitutes the majority of software development costs and expertise) so it doesn’t deserve protection as intellectual property.”
You really need to clarify what you mean by “design” in this context. Algorithms/UI? The design phase is important, but the majority of development costs goes to implementation. Let’s say a client calls up and says “I want the next version of the software to have feature X, just like my phone”. Sure, the reference to an existing product saves some time, but the developers still have to actually implement it. Unless we have access to the phone’s source code, we’ll have to implement it ourselves.
I suggest that if the implementation time is negligible, then the feature does not deserve patent protection in the first place.
“That makes absolutely no economic sense. Sorry. Thanks for the comments.”
You need to understand it from an actual developer’s point of view and not a hypothetical one. There is no law of physics which even remotely suggests that ideas are unique to their developers. Software patents prevent me from applying the knowledge I can gain from my own R&D simply because I’m late to the game.
Edited 2011-07-20 18:01 UTC
I have not read your thread but movies are not patentable inventions. Just like games are not. And I do not believe they should be, because they do not promote the useful arts.
Now animation techniques for producing films or 3d cameras or whatever are just as advancements in gaming hardware, (I’m not a game developer so I can’t really say what would be worthy of patent in a gaming platform but I have to imagine elements of a game engine are probably worthy of intellectual property protection and dissemination of ideas would help to advance the technology not hurt the industry like trade secrets currently do).
Yes, copyright is useful for the purpose it was intended. But copyright also lacks the social good of patents. It will protect your software from being copied and people will enjoy the software you have produced but not gain from the means of its production assuming you are creatig propietary software for sale.
The FOSS movement among other things aims to provide copyright software works available under permissive licenses in order to foster a similar social good to patents but as we have seen recently even this movement is corruptible by corporate forces obeying the letter and not the spirit.
Let’s take an albeit glossed over but concrete example at patents and competition. RIM is going along happily creating Blackberry messaging devices. They are market leaders and have patents on their inventions. Apple stuns the marketplace by introducing the iPhone. RIM engineers immediately buy an iPhone and rip it apart and are stunned to see basically a huge battery glued to a touchscreen. They have never thought it possible to create such a device and worse never conceived the market wanted one with such a horrible radio quality or battery life in exchange for a touchscreen and “bouncy” software. They pour over the software running the device.
RIM creates the Storm (oh god). Why should RIM be able to benefit from whatever advancements in software and hardware Apple patented which RIM chose to ignore without paying license fees to Apple? Sure they can and tried to create a competing product. They created useful innovations as they tried to design around the iPhone and came up with hybrid SurePress. Their software team tried to implement some of what Apple was doing in the Blackberry context.
I don’t really see how any of this is a bad thing or how Apple’s patents which RIM chose to ignore at their peril stifled competition.
That is a misunderstanding of the patent system. You are saying the worst case is, you are busy working in your own world and come up with useful invention A. Lo and behold, another developer has come up with useful invention B and patented it and is using it to produce product Z, and A == B. This is the “who invented the radio” question.
Questions:
why did you not search for patent B?
why did you not patent A?
why do you think you are now prevented from designing around B to compete with Z?
There is nothing in the patent system preventing you from doing so. All the knowledge you have gained from creating A in your own mind should be immediately applicable to innovating B into C. Also if you can show that A, B (and probably D, E, F from other people working where A==B==D==E==F) are truly independent and since D,E,F are also independent then B was obvious and its patent invalid.
My worst case is that B is an abusive patent. You have little chance to design around it. You have recourse to the AJP of the USPTO to review this absurd patent. That takes years because of the enormous case load they have and the lack of funds to accomplish their mission, and you have no guarantee of success because their staff may lack the technical skill to see how this is invalid (their coworkers granted the patent in the first place after all).
So your options are to create Y to compete with Z anyway, paying license fees (which may or may not be acceptable terms), or put it into the marketplace without paying and prepare for any possible litigation which could be too costly based on revenue projections to proceed while you wait for the review to proceed. This is what Rubin et al is alleged to have done in Google v Oracle.
This worst case is what motivates me to advocate for reforms of the patent office because if
1) you were unable to learn of B while working on A because the grant process took too long or you were unable to find it after making a reasonably diligent search because the tools available are deficient or too expensive.
2) B is absurdly broad and not valid but the review process does not afford you proper remedy fast enough.
However making the leap to abolishing software patents is unwarranted.
I may be persuaded that software is not deserving of patent grants because it is not a useful art or doing so does not promote a social good. If the creation of software amounts to an unprofessional mashing up of existing code and spaghetti “improvements” and will never advance beyond the demands of the mob then it is more akin to being a chef or a cook serving food at a restaurant than engineering a solar-powered plane. Similarly software engineers are grossly overpaid and their work deserves to be outsourced to the cheapest labor possible or visa/immigration policy should be changed to allow for its import and the delivery of software should be regulated and pass inspections to ensure it does not impact public safety.
I have not yet come to that conclusion (most likely because I make my living creating software) but I’m not entirely closed to it in my thinking. Sorry for the long-winded post but you seemed to be genuinely interested and thought it merited attention. Also, I was really enjoying a coffee. Thanks.
Not2Sure,
“I have not read your thread but movies are not patentable inventions. Just like games are not. And I do not believe they should be, because they do not promote the useful arts.”
Can’t one claim that software patents do not promote the useful arts either?
Do read the post, where is the difference in the need to protect movie ideas and the need to protect code ideas? If you disagree, do you have arguments against movie idea patents which cannot be applied to software ideas?
I think you’ll find most of the arguments against patents for movies apply equally well against patents on software.
Not2Sure,
“That is a misunderstanding of the patent system. You are saying the worst case is, you are busy working in your own world and come up with useful invention A. Lo and behold, another developer has come up with useful invention B and patented it and is using it to produce product Z, and A == B.”
This is right, I call this “inadvertent infringement”.
“why did you not search for patent B?”
Are you kidding? Do you realize how much overhead exists once developers accept that this should become a routine part of their jobs. Productivity would be decimated in an instant.
Even pro-patent posters here have already complained that there are too many patents to justify the effort to go through them. Even if we tried, the patent language is such that it takes a law degree to understand them. How can a developer know whether a patent is even legitimate?
“why did you not patent A?”
1. It’s too expensive & time consuming.
2. My specialty is CS, I don’t want to bring in the lawyers necessary to file & enforce my patents.
3. A is mathematically derivable, and I don’t believe it should be patentable.
4. It’s a ponzi scheme, the patent system rewards the older/larger corps and punishes new ones.
“why do you think you are now prevented from designing around B to compete with Z?”
I didn’t actually say this. But by definition the patents are monopolies, I may be forced to spend even more on R&D in order to find an inferior solution which does not infringe.
You and I seem to fundamentally disagree that two developers working independently with their own resources should have the right to use the same algorithm, regardless of who was first.
In principal, when developers independently find the same algorithm, they should be entitled to use it. There is no possibility for you to convince me otherwise. If you assert that one of the developers should be legally entitled to use the algorithm at the expense of everyone else, then that’s an irreconcilable difference. There’s no point in us arguing any further if we don’t agree on this fundamental point.
Edited 2011-07-20 21:34 UTC
Apart from your exaggerated hyperbole, I hear the same thing from developers who are told they need to write unit tests. In any case, being aware of the state of the art is a requirement for most advanced, salaried professions. Developers generally spend significant time surfing for worthless information, it’s part of the job.
And they also surf sources of information they like to keep abreast of state of the art (for example this site). The goal of the USPTO strageic plan is exactly that, to make patent information available in forms practitioners want to or can consume.
You are making a criticism of the tools available and the language employed both of which are subjects of reform proposals. How is it exactly that justifies abolishing the subject?
Also you really should spend about 15 minutes at google patents. If you can use google scholar or stack overflow to find information on some technical question you are working on and can’t use the same query langage to find patents on target for what you’re working on…. well.
Then the revenue model for Z must be something else because a limited monopoly is a pretty valuable asset.
CS is not an industry. It is a science (well, arguably as a branch of mathematics I suppose but that’s another debate). Software as a commercial enterprise of any scope involves lawyers unfortunately.
What? That wasn’t part of the scenario I outlined. Or if you’re attempting to say every piece of software is mathematically derivable then that’s a completely different argument.
Actually the rewards are potentially greater for startups than large corporations because they have so little actual real value.
Nope, I think we’re in complete agreement with respect to the simultaneous invention scenario with the caveat that algorithms are not patentable. I also outlined how the patent system views the situation of so-called simultaneous discovery. Invalidating a patent on the basis of obviousness is not as easy as say prior art but it is possible.
I’m not asserting it, the US Constitution, legal precedent and international treaties are, and again algorithms are not patentable. That is the essence of the bargain, by communicating their knowledge in a form that government deems benefits you the competition and us the public, they receive the benefit of a limited monopoly.
You seem to think there is no benefit to you, the competition, because you can’t be bothered to even search the patent corpus as it would “instantly decimate your productivity”. Or you believe that the form of the information obtained from any such query is not worthwhile to you in your work of isolated, independent discovery, so the government is cheating you, the victim in this conspiracy whose only crime was being born too late.
The goal of the Copyright Clause was to make the commercial productive arts more like the scientific endeavor of the time with a freer exchange of ideas to combat trade secrecy and piracy. I wonder if today Madison and Jefferson looking at a highly commericalized science proceeding in corporate settings and a highly secretive “publish or perish” mentality rampant in academia whether such an aim would be seen as a good thing.
Not2Sure,
“Apart from your exaggerated hyperbole, I hear the same thing from developers who are told they need to write unit tests. In any case, being aware of the state of the art is a requirement for most advanced, salaried professions.”
I didn’t exaggerate in the least. If I provide you an algorithm, say a short one with no more than 20 lines, which took me no more than a half hour to write. Can you guarantee that I didn’t violate anyone else’s patents even after spending hours looking up obscured patent claims?
What about a whole program with tens of thousands of lines? The task is absolutely daunting to any small/medium sized developer.
You brought up testing again:
Developers need do testing because customers demand it (free market already handles it)
Developers only need to do patents if the patent system requires them to, but this logic cannot possibly justify a patent system.
“You are making a criticism of the tools available and the language employed both of which are subjects of reform proposals. How is it exactly that justifies abolishing the subject?”
It’s abolishing a system which we never benefited from in the first place. Software patents, when scaled to every single developer in the country would create insane levels overhead, not only for themselves, but for the patent office too, which is bound to see patent applications skyrocket through necessity. The work of comparing patent claims becomes exponentially greater as the number of patents increases. The only benefit for devs like me is the knowledge that the first developers get government backed monopolies. The vast majority of developers will never be the first. The increase in legal responsibilities, fees, workload, etc will put the majority of us out of business and raise barriers to entry. Newcomers will be completely discouraged when they discover that they will owe royalties to their competitors when they enter the market.
This isn’t just theoretical, I personally sought to create and sell surround sound multimedia software when I graduated college. I found there was a genuine opening in the market for it, especially on the consumer end. I was willing and able to do the legwork to build my own software, go into business, and fill the gap. But after running the numbers for my business plan and figuring all the expenses, it became clear that software patent licensing fees would push my expenses so high that I would be unable to target the consumer market where there was a void. Today I tend to believe that software patents were actually the cause of the void, and that other developers were also driven away because of patents.
“Then the revenue model for Z must be something else because a limited monopoly is a pretty valuable asset.”
I’m sure it is, but do you really think it’s a good thing to encourage lots of developers to go into business with a business model where they need to sue other developers to be successful?
“Software as a commercial enterprise of any scope involves lawyers unfortunately.”
This is a terrible justification for patents.
“What? That wasn’t part of the scenario I outlined. Or if you’re attempting to say every piece of software is mathematically derivable then that’s a completely different argument.”
You asked why a developer wouldn’t try to patent something first, this is a legitimate reason. If I genuinely believe something shouldn’t be patentable, why should I part with ten thousand dollars of my money just to make sure no one else can patent it either?
“Actually the rewards are potentially greater for startups than large corporations because they have so little actual real value.”
With startups seeking a business model around patents, they put their resources and efforts into patenting all anticipated variations of an idea, then targeting developers who infringe those ideas to demand royalties. The patent system certainly enables this kind of business model, but it’s not something to be proud of, IMHO.
“Nope, I think we’re in complete agreement with respect to the simultaneous invention scenario with the caveat that algorithms are not patentable.”
Well I’m very glad for that, but I’m curious now, because most software patent lawsuits today involve cases where the infringer is completely oblivious to the patent. This is the main reason software patents are so valuable today, one can use them take down competitors regardless of whether they’ve copied the patent holder’s invention or not.
So long as the most developers don’t sneak a peak under the hood, then they cannot know how the competitor’s software works and cannot knowingly infringe the software patents.
“I’m not asserting it, the US Constitution, legal precedent and international treaties are, and again algorithms are not patentable.”
And yet there are plenty of software algorithm patents which have been patented and enforced. Hufman encoding was one, Compuserve gif format, jpeg, mpeg, mp3, etc.
So what kind of software should and should not be patentable?
I don’t want or need protection of the design of my software. If I come up with a novel idea and implement it I already get 1st to market advantages. If someone else implements my design (i.e. creates an independent implementation) then good for them – in my opinion that just validates that my idea was good. If I can’t compete on quality of product I deserve to lose in the market. In other words I don’t mind someone stealing my ideas, as long as they have to work for it (they don’t copy my code). Seems perfectly fair to me, and some if not most other software developers.
Its not that I think it is worthless, I just (obviously) do not place as much relative value in it as you do. And no, I don’t think the vast majority of software patents deserve their protected status. The problem works itself out on its own imo – the level of difficulty in implementation is proportional to the validity of the idea when it comes to software. If the implementation is trivial so would be the patent – if it is not, it represents a natural barrier to competition and no patent is required.
No. B can’t exist because of patents. No patents and “B”s become commonplace. All software is poor quality if you can do it better… Quality is relative, and without patents alternative implementations would be released rapidly – competition breeds better products. Don’t mistake me, I realize this is counter-inductive to the goals of patent law. My goal is a healthier software industry, not personal protection.
Working around patents is not innovation, it is wasted effort. Doing things better is good, but doing things different just to dodge a patent is not innovation. As a software developer I would like the freedom to let my work speak for itself and not have to worry about clearance checks and such nonsense. As a small developer the problem is there is really no reliable way to even find out if you are infringing on someone else’s patents – you generally just hope you don’t get big enough to get sued. Such a sad goal for a noble profession…
Ok. That was funny. Touche.
Absolutely not. Just because I don’t agree with the concept of software patents doesn’t mean I think companies that exercise them are trolls. I don’t like it, but you won’t see me ridiculing a company that actually creates products for patent litigation. I argue against patent law itself, not the company’s exercising it. I might ridicule a particular patent, but not the company itself. The law of the land is the law of the land – I don’t like it but I also won’t take cheap shots at company’s who comply with it. Real Patent Trolls on the other hand….
I am a programmer. Patents absolutely devalue my work. In a patent free system – implementation quality determines product superiority, not patent portfolios. If your product is patented to hell and back, why bother paying for good programmers – you can just hire sweat shop labor and corner your market with a crudy product (i.e. the “use it because I have no other choice” products). If that doesn’t work you can always threaten to sue to keep competitors away. How does that “value” a programmers work? I think our point of contention is that you seem to think design is everything – I contend that implementation is everything. Reality is probably somewhere in between…
Regardless, in a patent system design IS everything – it devalues the relative worth of the implementation, because the quality of the implementation is secondary when you have a government granted monopoly. That is my point.
Good answer
I’d mod you up but I can’t (already posted).
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)
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
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?
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.
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
Can you cite one software patent that you feel is valid to your eyes ?
(;sorry, couldn’t resist;)
real life trash can? it provides me with space for commercial software after:
1) company goes bankrupt
2) company stops supporting that software
3) i see software works nothing like commercials said
No, I can’t. But this doesn’t mean I don’t think there are cases where they can be valid and I am not about to look through every software patent out there to find one. I just don’t feel that a blanket “No More Software Patents” is the best solution.
cranfordio,
“No, I can’t. But this doesn’t mean I don’t think there are cases where they can be valid and I am not about to look through every software patent out there to find one.”
I don’t blame you for not wanting to waste time evaluating patent documents. However this is precisely how more and more developers will need to spend their time as lawsuits from software patent trolls continues to get more insane. Patent trolls deliberately try to patent every little variation of an algorithm to block alternative implementations. The simple task of determining whether our in-house code infringes software patents is a monumental task. Often times this isn’t even knowable.
If we do infringe, we have to choose between obfuscating our algorithm to avoid the patent(s), pay license fees for the right to use our own implementation (that’s assuming the patentholder is non-discriminatory), or completely ignore the whole damn patent system. By far and large, most IT businesses haven chosen to ignore software patents because they offer no net benefits, and the cost of compliance for a serious patent audit would be prohibitively expensive.
“I just don’t feel that a blanket ‘No More Software Patents’ is the best solution.”
That’s fine if that’s your opinion, but no more software patents is a viable solution to the majority of software developers working today.
As a non-software dev, maybe you don’t get how important intellectual freedom is to us, but it is. Please don’t dismiss it. Strictly enforcing software patents would be one of the most draconian thing you could do to us. It wouldn’t be all that different from prohibiting you from using certain combinations of words from your native language.
Sorry, I wasn’t trying to dismiss the view point, just trying to get more information than just the blanket “No More Software Patents.”
I am not saying that no more software patents isn’t the best solution, I was just looking for more of an answer and reasons why this may be the best answer. Your response has actually given me a different perspective, and thank you for that.
I guess my biggest issue is that I would feel that if there was nothing to protect my efforts from being stolen and/or copied, than I would be afraid of investing the time and money into those efforts. So my question for you is how does one truly protect their investment, and in the end protect their well being if there is no protections in place? I guess copyright is a protection, but to me it doesn’t seem like very good protection.
cranfordio,
“So my question for you is how does one truly protect their investment, and in the end protect their well being if there is no protections in place?”
Of course this depends on the business model.
Most service oriented IT companies will work under contract with various clients. Various business arrangements are possible (yearly support contracts, turnkey solutions, one off projects, etc). But in any case the IT company’s job is to obtain a scope of work, propose solutions to the client, estimate/agree upon a budget and time frame, and then begin development. Usually by this point we know what the client needs, and the platform, but technical details (algorithms etc) are totally open ended, it’s the developer’s job to come up with an implementation which addresses the client’s needs. The parameters specified by the client usually dictate the overall implementation choices available to the developer.
Whether or not the implementation is novel or not is rather irrelevant to this sort of developer, who has a source of revenue regardless (include web developers in this model).
Another somewhat less common business model in my opinion is selling off the shelf software to the masses (lets say AV software). These devs are probably more concerned about their inventions being copied, so in theory a strong patent system could benefit them. The problem is that there are only a finite number of logical/secure/efficient ways to attach AV scanners to the OS. If we allow the first developers to acquire software patents on those mechanisms, it becomes a land grab. Future newcomers may be blocked from entering the AV market, or they may be forced to develop inferior products, or maybe they’ll owe $15 per copy to a competitor who happened to be there first. The newcomer not only has to fund his own R&D costs, he has to subsidize the patent holder’s profits.
Lets suppose, the newcomer is able to get additional patents of his own. Generally the competitor’s pre-existing software cannot infringe (otherwise it’d be considered prior art), so there’s still no leverage, the newcomer is still paying $15/copy. He’ll have to try and use his patent to sue new players in the market after him.
Some people still view software patents as necessary, but I would rather reward merit than simply who was there first, which is what patents do. Even as a developer, I would rather be rewarded on merit.
“I guess copyright is a protection, but to me it doesn’t seem like very good protection.”
What’s the reason it’s not good protection?
At this point in the conversation now several people with varying degrees of tact have addressed all of your questions of how copyright gives ample protection and how software patents stifle innovation. Yet you, a non developer keep on trying to point out that there may well be someone somewhere who needs further protection of software patents. When you are asked to give an example you are unable to do so.
One would think that if patent protection was necessary it should be easy to point out several examples of where software patents helped. But we got none, not even one. We do however see several stories a week where patents are being abused to stifle innovation and create artificial monopolies, raising the barrier to entry into many markets.
What we see is a system with immense overhead that is not benefiting society in any way.
Until you have actually done something in the field or even done enough research to understand the issue you should stop asking the same stupid question over and over. It’s been answered in several direct posts to you from informed developers, not too mention the literally thousands of other posts that address the same thing.
If you are in the business of providing intellectual property for profit then you or your bosses should build into the costs of your business model the actual costs of doing business not some absurd low-cost time/material model. If they do not, they deserve to fail which sucks for the people actually doing the work.
Also you should support the current legislation to reform the USTPO that ensures that fees collected from patent applications are not funneled away from the USPTO but instead are used to ensure quality reviews so that your time as developers can be spent developing original software and not reviewing patents. Also there have been proposals to “crowdsource” the patent review process. You should take a look at those and see if they deserve your support.
That is absurd. If it is as simple as you state, a genetic algorithm could be devised and computed to map out a majority of the possible implementations. I doubt that is NP-complete.
As far as it being monumental and “unknowable” there are plenty of patent clerks and IP lawyers to help you in your business process. Stick to what you know, but don’t pretend to know everything. I have yet to meet an engineer who has not started his own company that has respect for the work lawyers do. I also cringe every time I have to write a check to a lawyer. The alternative is not any better.
Obfuscating an algorithm would represent willful violation and triple your liability. I would suggest you seek better legal advice. Licensure is the only proper legal and ethical resolution in the face of a valid patent.
Software patents do offer benefits, they apparently offer no benefits to your software which is probably essentially derivative and produced at extremely low cost? The actual cost of producing software is not reflected in its price. That’s a problem.
And not working tomorrow. Where is this alternative utopia of no patents empowering fountains of software creativity? The European model? Umm.. which commerical software companies are we talking about that have revolutionized computing and its delivery to the extent that those operating primarily in the US have? Don’t say Nokia!
I’m not being sarcastic here.
Take all the work and effort done to conceive and design the software you ship. Did you have a hand in that? Did it help put a roof over your head and food on the table? Good. Its value is now near-zero, because for all your platitudes of intellectual freedom, there are engineers who do not share your belief systems that will recreate your work from a shipping product in days not weeks relative to months creating the original, and market value descends exponentially, because your sales force will tell you, there is zero loyalty in IT.
I do not consider that progress on any scale as a creator of commerical software.
If abusrdly broad, abuse patents in the US are as big a problem as critics imply they are, then tbh if your product had any appreciable marketshare and revenue stream then you would already be beset by patent “trolls.” Your language implies that you have not been party to patent litigation but are only speaking in the abstract and not from real experience. So either your software is not a revenue target, or the problem is overexaggerated. But that is probably a flawed assumption on my part and if so I apologize.
Not2Sure,
“If you are in the business of providing intellectual property for profit then you or your bosses should build into the costs of your business model the actual costs of doing business not some absurd low-cost time/material model. If they do not, they deserve to fail which sucks for the people actually doing the work.”
Wow, what can I say, passing the costs onto consumers is exactly what happens….but that’s really not a plus. In addition you’ve created a dependency for a lot of lawyers who are much more expensive then developers and don’t contribute to R&D.
“obfuscating an algorithm would represent willful violation and triple your liability. I would suggest you seek better legal advice. Licensure is the only proper legal and ethical resolution in the face of a valid patent.”
How do you think anyone codes around existing patents? The change their algorithms until it ceases to infringe the claims of the patent. I call this obfuscation because now code efficiency/clarity/simplicity become secondary goals behind patent avoidance.
“Take all the work and effort done to conceive and design the software you ship. Did you have a hand in that? Did it help put a roof over your head and food on the table? Good. Its value is now near-zero, because for all your platitudes of intellectual freedom,…”
It sounds to me that you problem you are describing has far more to do with open-source rather than no-software-patents. Is that the case? I’d have to admit, the logic of feeding one’s family with open source software is oftentimes difficult to accept.
Ah thanks, I have a different understanding of obfuscation. For me it means trying to hide that you are continuing to use the infringing element and as you expalin it means to you altering the implementation so that it does not infringe.
Licensing is as you say a different kettle of fish. But I mean literally, in your experience, let’s say your manager/boss/or you if you wear that hat, says to you, we need to create a product that does X, and gives you a copy of Y that he purchased that does X.
Are you saying it takes you no less work to implement Z that does X based on Y? That means the value of Y has just decreased markedly, but allowed you in the free time you have saved to add feature X+. Good or bad outcome? Do you feel obligated to pay something to Y?
That is at least one way that software patents promote competition and serve a social good: you can build Z that competes with Y doing X and X+ so long as you license X from Y.
And again here we are not talking about some absurdly broad nonsense patent that people trot out to inflate the hyperbole around this issue and for which no one argues in favor. A real patent of software transforming real data into a useful, nonobvious and nontrival result.
I got distracted while writing my previous post and it’s a little sloppy, my apologies for switching the topic mid stream. I have to go though.
Edited 2011-07-20 00:32 UTC
A logical fallacy perhaps?
I will counter with the following question:
What US software company revolutionized computing, because of the availability of software patents?
And that’s exactly the problem with patent law, as it stands. As a developer, *I* don’t want to go looking through every software patent out there, just in case someone else has already had the same idea as me. But the current system forces me to care about that kind of thing.
Thing is, the idea behind the patent system is to reward people who come up with interesting new ideas – allowing them to benefit from a brief monopoly before it becomes a free-for-all. However, this just isn’t working out, for several reasons.
* There are just too damn many patents. There are so many of them awarded for the most trivial variations of existing ideas, that it’s almost impossible to do anything without unknowingly infringing on one patent or another.
* They last far too long. In an industry where companies put out new products as often as bi-annually, a patent lasting over a decade is practically forever. Seriously, the average technical patent will be obsolete long before it actually expires.
* They mostly benefit the big players, preventing newcomers. Since anything a small company does is almost guaranteed to infringe on a patent held by the incumbents, they can’t actually bring their innovation to market without paying money to their competitors. Ultimately, most such companies end up either being bought by one of the bigger players, or simply selling their patent and moving on to something else.
All in all, the system just doesn’t work very well.
Smells like an opportunity! But im sure someone has already built it
Isn’t that a problem of the patent office granting/review process and not patents themselves? Clearly, if you were working at the patent office reviews patent applications and saw an absurdly trivial variation of an existing idea (which is not patentable by definition) you would disallow it. So why do we not have more of you working on our behalf at the patent office?
Also something that is part of past and present attempts to reform the patent system.
This is an empirical claim that I think doesn’t bear out in reality. Very, very few startups actually pay patent licenses and many, many, many new products come to market. In fact, if you take two startups prior to commercialization in the same marget segment, one has a patent and the other does not, which has a competitive advantage and why?
I agree with your ulimate conclusion but I don’t see how it’s a bad thing. That is genuinely the aim of most software startups ie acquistion. It does mean that some of the “value” in software creation and competition does get sucked up by IP lawyers but that isn’t exactly new.
I would even pay for a license of the technology that would understand the patent lawyerspeak. But sadly, patent lawyers progress much faster in their use of the English language than any technology could progress…
Maybe because the judges can overrule USPTO and force them to grant a patent? And smart decisions are not always the legal ones.
Their patents or lack of patents has really no impact on their advantage*. They could however get more funding. Simply due to the rapid development cycle, the patent is not a real indicator of anything.
(* From the perspective of a VC I can understand the value of a patent. Though I don’t agree with them ethically.)
It is perceived that it’s not in the US’s economic interest to abolish software patents.
This might change in the following decades though.
I see this happening as follows.
Recently quantity research projects/papers in other parts of the world in starting to surpass the US.
For example in 2009 the Chinese has produced more IT research papers than the US.
China Leads World on IT Research
http://bigthink.com/ideas/38603
US science chief warns: ‘China will eat our lunch’
http://www.independent.co.uk/news/science/us-science-chief-warns-ch…
The tuition fees of American Universities compare to other countries.
Americans worried by soaring tuition fees
http://www.google.com/hostednews/afp/article/ALeqM5iTffhwx80QV-z6Xq…
This is a sad tale but the high cost of producing IP is going to sink patents in the US because just like their sneakers it is becoming become cheaper to manufacture overseas.
It will thus be US interest to abolish IT patents in the 20 years.
Patents don’t apply to everything for a reason. You cannot patent abstract ideas, natural laws (even if you discovered one), mathematical formulas, etc. You are only supposed to be able to patent “concrete” things – you can for example design a mouse trap and patent it, but you have to provide enough detail to actually build it. A patent on “a mousetrap that transports all mice in a home back to November 5th, 1955” won’t fly until someone can actually describe how to build a functional time machine…
The main problems with software method patents are:
1. 99% of them are stupid and obvious. The system actually encourages this. You can find all sorts of patents that, after carefully removing the bits that have prior art, boil down to “present a link to the user to act on”. If you look at such patents as what they are, it becomes immediately obvious that there are thousands of patents that are really nothing more than “click here” patents – they only differ in the details leading up to the “click” part… What is innovative about clicking links? Why does combining it with something else make something “new”?
2. Methods ARE abstract ideas. Software method patents are both abstract ideas AND mathematical formulas (software is simply a method for describing an idea to a machine – it is not a machine itself). A gratuitous error was made by the government when they allowed for the concept of method patents in general, but doubly so when they apply to software. It just doesn’t make sense to patent this kind of stuff – the VAST majority of it is obvious and even the non-obvious stuff represents very little in the way of real R&D costs (which is what patents are supposed to be protecting).
3. Software is already covered by copyright. Most developers feel that for software to evolve and innovation to take place the ideal environment is one where anything and everything goes – if you want to gain financially from a software idea than do it better than your competition – don’t try to lock them out of an idea just to protect your own product. Patents cause harm to the biggest advantage of the software industry – rapid iterative advancements.
4. Software ideas really have low R&D costs. There is very little material costs, you generally don’t need to create a factory to productize a software idea. I’m not saying R&D for software is cheap overall, its not, but the R&D that applies to a specific patented ideas is nearly non-existent – It is the distribution and marketing that costs money – implementation costs for the idea in a typical patent is small and immaterial.
5. For software, trade secrets work just fine for the most part. I.e. if you don’t want competitors to take advantage of your idea until you are ready then don’t disclose it. You are not obligated to do so anyway – a competitor cannot reverse engineer your software unless you give them access to it (at which point you are already at a competitive advantage). And if they do it badly you can nail them over copyright…
6. It puts the emphasis on the wrong part of the equation. Good software is not good ideas – it is good execution of ideas. Patents on software methods are mostly garbage – they don’t provide anything meaningful to society (which is at least part of the reasoning behind patents – sharing ideas so that once the patents expire they are available to everyone). Go back in 20 years and look at 99.9% of the software patents filed this year – they will mostly be useless drivel. A machine patent tells you HOW to build a machine – a software patent most definitely does NOT tell you HOW to build said software – it contains little or no valuable knowledge. If patents required showing your code I might feel differently, but they don’t…
You are making an exaggerated empirical claim that is verifiably untrue and a false statement.
It is true there are low and non-quality patents and that their rate of grant have dramatically increased in the last decade, unfortunately the rate of review has remained steady or declined over the same time period because of funding issues. However, 99% is not accurate and is hyperbole. As far as the system encouraging low-quality or non-quality patents, that is false. They are not valid patents under the law. That is fact.
HA! Not just an error but a gratuitous error. That’s great. It makes sense to a great number of people, just not you. Software method patents as you describe are not what is described in Bilski which is the most recent guidance provided on the matter. I do agree and I think most people regardless of their views on intellectual property that absurdly broad software patents are harmful.
Again you are arguing that the failure to properly implement the software patent process as codified is somehow reflective of patents themselves which is a fallacious argument.
To make your case you would have to show that the software patent process even when implemented correctly fails in principle to serve its purpose. And this is what propagandists do not do. Instead they start waving around some admittedly grotesque patent abuses and say “SEE SEE! LOOK AT ME! THE SKY IS FALLING” rather than look at the suggested reforms.
The issue is the reform of the patent office not software patents.
This is why most developers are not entrepeneurs. Alos rapid iterative advancement is the latest fad in sofware methodology. Ten years ago the biggest advantage of the software industry was carefully staged, waterfall planning and requirements engineering. Seriously. And anything that is a subject of “rapid” iterative advancment is most likely not a proper subject of a software patent grant.
In any case, patents per se do not hinder rapid progress in software development except for the the speed of the grant/review process. And in fact it could be argued that a tiered or rapid schedule for software (which has already been proposed) promotes it because as opposed to trade secrets in which the innovation must be kept secret to be protected, the patents require open communication, encouraging innovation.
Again, you’re arguing for the need to reform the patent office. Many are in agreement and reforms have been proposed.
So, you are going to create a fabulously inventive method for doing something in the browser in javascript. How exactly are you going to protect that as a trade secret? Trade secrets, patents and copywright all have a role to play in legal strategies for software companies that is true. Trade secrets however foster secrecy (that is their requirement). Patents foster transparency and innovation (that is their requirement).
Different social aims.
You should look at the FTC suggestions for patent reform. Suggestions include requiring clearer language in patents to make claims more definite, while also helping others understand the boundaries relating to those patents so that infringement can be avoided. It also recommends that patent examinations be enhanced so that the scope of a patent claim can be fully understood (yet doesnt include how to fund this, which is aggravating). FTC also wants more consideration of how third parties will foresee how a patent might evolve.
In addition FTC is seeking to reform the adjudication process. They wants royalty damages to be capped to a reasonable amount to allow them to be paid. They are also advocating for a method to exclude unreliable expert testimony in setting damage estimates, which could lower costs considerably for alleged infringers. You should see some of the absurd descriptions of market value of infringements that have been accepted on their face by courts during the penalty phase.
Apparently Schmidt doesn^aEURTMt believe in a judicial system to arbitrate differences and/or to deliver rulings to protect/compensate victims against frauds and blatant thievery, in a democracy (or republic in this instance)? What are the alternatives then? Innovate, he said.
How may an actual victim respond with that? Go back to drawing board in a humbled head and try something new again, while keeping the fingers crossed that someone won^aEURTMt steal again out of sheer decency this time around?
I guess this piece of Schmidt is the shining example of this innovative method by ^aEURoeinnovating^aEUR a competing product ^aEURoewith due disclosures^aEUR, all the while retaining membership on the would be competing board.
Eric, it was YOUR company who COPIED the iPhone, yet is claiming Apple cannot innovate? I^aEURTMd be willing to agree with Google if ^aEUR” AND ONLY IF ^aEUR” they go back to their original, prototype design of Android (read: a Blackberry clone). Then, perhaps, Google can complain.
It^aEURTMs sad, really, because at one time, I would have considered Google another computer company I would have purchased from. Instead, they want to be this decade^aEURTMs Microsoft.
Edited 2011-07-19 18:50 UTC
I don’t get it. This whole patent mess is out of hand and very likely requires an act of congress to “correct” the damage done by the US legal system regarding what patents are allowed to be rewarded.
This mess of “use case” patenting, etc is horribly damaging to future US worldwide prospects of innovation in general.
Btw, Apple *did* innovate. They innovated in the market itself breaking the stranglehold of the wireless providers which to some extent greased the skids for android itself. Thankfully market patents aren’t allowed (and are as idiotic as these software “use case” patents).
Could you point to the exact sentence where Schmidt said what you felt at liberty to paraphrase?
Maybe this one? : “competitors are responding with lawsuits as they cannot respond through innovations” – Did you feel that this only applies to Apple? Rather than a generalisation of the situation?
thievery of what? things already known that apple simply stole and proclaimed as their invention?
can’t answer until you provide one simple design that apple really invented
really, now check facts. android predates iphone. at the time of blackeberry like plans touchscreen was simply not really ready for usage like that. google design changed with touchscreen progress.
if i start to think like you, i could as well proclaim that apple just blatantly copied my iPAQ with GSM card accessory. there were icons and all. now which do you think is older, iPAQ or iPhone?
here are some other mobile environments that predate time when apple even thought of making iphone
http://en.wikipedia.org/wiki/GPE_Palmtop_Environment
http://en.wikipedia.org/wiki/OPIE_user_interface
http://en.wikipedia.org/wiki/Windows_Mobile#Windows_Mobile_2003_SE
http://en.wikipedia.org/wiki/Windows_Mobile#Windows_Mobile_2003
http://msdn.microsoft.com/en-us/library/ms834413.aspx
http://en.wikipedia.org/wiki/Palm_OS
after looking at these and reading information, be good and tell exactly what apple invented
you might even mention Newton
http://en.wikipedia.org/wiki/File:Apple_Newton.jpg
but i really fail to see what it would have in common with modern interface for portable devices
lol, you are decade too late. google is defacto search standard monopoly.
and do not think i’m google fan. i hate them since they just introduced another incompatible desktop platform on linux. until i can run linux apps on android and android apps on my desktop, i couldn’t care less if they exist in mobile platform or not. my next phone will be simply chosen from the list of existing phones i can flash with Meego
and… by god, still no “OMFG, what stupidity”
> really, now check facts. android predates iphone.
Have you checked yours? Before the iPhone, the Android platform was mainly a Blackberry clone. It wasn’t until after the iPhone came out that android devices adopted the same touch screen driven portrait orientated mobile computing device, and offered touch-based navigation features.
Edited 2011-07-21 14:40 UTC
Yeah, I don’t trust the courts to get it right either. There are a lot of things the courts are good for, and a lot of things they are not good for.
In a lot of ways its like asking someone off the street to judge a sand look alike contest. Its far too subtle to differentiate, and it doesn’t really make any sense anyway. When you ask that of someone, you get crazy results.
While Google^aEURTMs inaction has been troubling, I really have to accept they need to wait this long, to allow it to get silly enough, for people to stand up and notice how monumentally silly these companies are being.
And in Microsoft^aEURTMs case, downright illegal.
Troll, troll, troll.
Now we’re sourcing from what someone heard and reported on zdnetasia? There isn’t even a link to an actual Google document or press release or well anything to base a story on. Just a platform for more ranting on software patents. Such is tech journalism, that this will (probably has) bounce around the bobble heads without even an actual request for comment from Google or an official statement.
Also, since you still can’t seem to put your mind around the whole US patent system wrt to software (and admittedly it is kind of complex) YOU CAN’T PATENT IDEAS. The most recent Bilski jurisprudence suggests that a software process is patentable only if it is either attached to a particular machine or apparatus, or if it is transformative (e.g., transforms one article into something else).
I have no idea wtf you’re talking about with respect to the Blackberry(?) PlayBook and the Android patent mess Google has ensnared us all in. Are you referring to the yet to be released, technical details generally unknown/unnanounced vaporware android “app-player”? Cuz now you’re taking the FUD trolling to a whole new level.
The reason that RIM’s tablet prodcut doesn’t face broad infringment allegations in its current shipping form is not because the actual product is not wildly successful but most likely because they have a legal strategy and corporate policy that is not “we are engineers, lawyers are dumber than us, ignore any system we don’t like and burn our partners who were dumb enough to go along for the ride, we’ll pick up the crumbs later” employed by Google. If we believe that RIM has sold ~500,000 PlayBooks at MSRP of ~$500 US that represents a a target with sufficient revenue to fund any patent litigation that has a legitimate chance of success.
RIM’s PlayBook tablet is in fact facing infringement allegations from Dolby in German courts I believe regarding audio compression, but I am not very familiar with the specifics. I’m sure you will Google(tm) something and post it with some insightful analysis soon about how it supports your “theory” regarding software innovation that is so disconnected from the facts and realities of doing business in the US that it boggles the mind.
Finally, I really don’t understand what Schmidt’s “position” is here. Apple doesn’t innovate, they sue? Are we supposed to infer that Google does innovate, or just that Google doesn’t sue?
Cuz, when it comes to innovation, Android is well.. not that innovative. I’d love to engage in a conversation about how the software stack for Android is innovative with some specific examples if anybody in the community has some to offer. Have come to expect nothing but absurd ideological rants from the OP but maybe the commenters can help educate me here? I am very familiar with Android sw development so don’t be afraid to get very specific.
It is true that Google doesn’t sue in the mobile space, but not because they are less evil or whatever, it’s because they are either blindly arrogant, incompetent or both: effectively bringing a knife to a gunfight and whining about it after the fact. They sought to enter an already crowded intellectual property marketplace they had completey ignored for lack of vision or whatever, a failure to do so had the real danger of putting their primary revenue stream at risk. They simply HAD to get market share immediately no matter what lest they be left behind and so bought out Rubin et al (whose business model and pitch for Android was nothing like what it currently is), gave him alot of talent/resources and demanded results. They don’t have a legal leg to stand on and I’m betting they know it and are going for the PR spin victories and wielding their growing market share as a cudgel because that’s all they have. Time will tell.
He said it at Google’s Mobile Revolution conference during his keynote. So it’s not out of thin air. In fact this is much better new than most “Apple is rumoured to release iPhone5 in September”.
[quote]a particular machine or apparatus[/quote]
A particular machine or apparatus is any CPU. Problem solved!(Proven by many court decisions in and outside US, links to cases can be found at swpat.org)
[quote]Cuz, when it comes to innovation, Android is well.. not that innovative. I’d love to engage in a conversation about how the software stack for Android is innovative with some specific examples if anybody in the community has some to offer. [/quote]
Strictly technically speaking neither iOS, WP7 nor Android are that innovative. At least,
But since you asked what’s innovative in Android: Android brought the idea of Activities and inter-Activity interaction, that is not really usual in UI development – the properly working Back button.
[quote]They don’t have a legal leg to stand on[/quote]
What are you basing that on? You practice as a patent attorney or layman’s reading.
UIML (OASIS standard) around 2000? had the <template> which serves pretty much the same function as <activity>.
Wha…!?!?!
Android XML layout framework is similar to UIML in general, but Activity is way more than UI.
The idea of activities may not be new, but UIML is definitely not the thing that represents where Android’s Activities came from.
Edited 2011-07-24 01:56 UTC
Groklaw has a news item up on its site detailing prior art on one of Apple’s patents. People at Compaq wrote the first use of an acceleramator in a device, rotating the screen as you turn it. Thats where xrandr came from. Here is the link to the article:
http://gettys.wordpress.com/2011/07/18/apple-patents-portrait-lands…
This guy was one of Compaq’s designers, and if he is correct, this was a pretty obvious theft of ideas. I wouldn’t be surprised to see all of Apples innovative patents on mobile devices overturned. Seems like they are following the company moto of stealing great ideas.
The guy updated his article. He wasn’t correct.
Aww. too bad. Still, many of the patents HTC were facing seem to have been dismissed by the ITC. But there may be more prior art out there that we just haven’t found yet.
That is one of the stupidest things someone has said from Google recently.
2 links you should check..
– Engadget : Android UI presentation (pre-iPhone era) http://www.engadget.com/photos/a-visual-tour-of-androids-ui/
– Samsung Galaxy S next to an iPhone.. tell me who’s innovating ?
http://fortunebrainstormtech.files.wordpress.com/2011/07/iphone4-vs…
If I were Apple, I would have probably reacted the same way even if it’s the “so-perfect-citizen” Google who’s playing at your face.
That picture is misleading, because the app-drawer is open on the Samsung. Android has this “home-screens with widgets and a dock” system which iOS doesn’t have. Then there’s the notification dropdown, which iOS also doesn’t have. Actually, it will have it, copied from Android. Funny that. Then there’s the always present menu button on Android phones, another system iOS doesn’t have. And I’m sure I could find more, these are just the really obvious differences.
Also, if I look at the pics… on both phones it’s a grid of icons. Phones have had those since way before the iPhone.
Edited 2011-07-20 10:27 UTC
You forgot to mention another big difference: Samsung’s label on the left phone.
There’s a reason Samsung is the one being sued for plaincopy pasting and not all Android phones. The stock Android UI has elements that makes it unique : some are nice ideas, some are not that good. Accusing Apple of not innovating, it would be a gross exageration : we all know they took years to design the iPhone for years, not just months, there were more to it than a phone : the UI, simple and useful apps,the App Store to find some more. There was none that had the same appeal when it came out, and i believe it was hard work on their own.
At this point in time, I recommmend Android for people who are IT tech savvy people, not for the ones who barely know how to use a computer just to get web and email access.
2 links you should check:
-Article about the LG Prada phone dated before the unveiling of the Iphone. Note that article mentions the Prada was already winning design awards:
http://mobile.engadget.com/2006/12/15/the-lg-ke850-touchable-chocol…
Comparison of the LG Prada with the Iphone (with a video), immediately following the Iphone’s release: http://cellphones.techfresh.net/lg-ke850-versus-apple-iphone/
Tell me who’s innovating?…
If Samsung copied anything, it looks like they copied the earlier LG Prada.
I like your comparisons… That LG phone came out 6 month before the iPhone launch, but was a simple feature phone with “touch” being its differenciator to the market, apps completely useless. I don’t think but you have enough time to “copy” that feature phone and make it a smartphone in that amount of time if that was a reference for the iPhone UI, OS and all the apps bundled with it.
P.S. Funny, everytime i see comments made here, it’s always seem to be all black (aaple) & white (google) or evil vs god. By no mean i approve everything in Apple but, i always end up making a pro Apple commnt just to counter balance opinions here.
We are all aware that it is a common fanboy reaction to start introducing arbitrary, secondary conditions, once the fanboy’s point has been disproved. The original comparisons (linked in your post) of the Iphone and the Galaxy/Android were photographs — completely visual. So, the original assertion is based entirely on “looks.”
I don’t know what apps were available for the Prada phone at the time the Iphone was announced, but available apps have nothing to do with innovation and design similarities between the Prada and the Iphone.
Most will agree that the Prada and the Iphone are very, very similar in design. One of the pages I linked even lead to an Engaget video showing the similarities between the Prada and the Iphone.
However, the Prada was first by many months, winning design awards long before the Iphone was even announced.
There can be no question that the Prada and the Iphone looked the same, yet the Prada was decidedly first.
Now, I will allow that there really is not much to touch screen devices. They have a touch screen, a bezel, icons, apps and, perhaps, one or two physical buttons. That’s it! So, it is very possible (and likely) that Apple did not copy LG, because these design concepts are obvious.
However, in light of the obvious design of touch screen devices (and of the LG prior art), how can one rightfully claim that the Galaxy is a “copy” of the Iphone?
Interesting. I think that most Apple fanboys share that interpretation.
However, the way I see it, comments here usually run along the lines of: “the Apple fanboys vs. those with common sense.”
I have never actually noticed a Google fanboy, or an Android fanboy, or a Windows fanboy (except for one, who acts like a MS/anti-open-source shill). There are a couple of folks who are occasionally enthusiastic about Linux, but, for the most part, non-Apple fanboys only exist in the RDF.
comparing by the look/design, sorry, I don’t agree with you on this.. But I don’t try to change your opinion, just explaining mine.. LG Prada vs iPhone, you could take any black phone with a 3.5 inch lcd screen with no keyboard and say App.e copied that. Maybe we’re not focusing on the same elements : what’s inside the screen (OS and UI, apps) and not just external look. To me, design doesn’t stop in the hardware, but anywhere that is visual.
And most here probably never tried any of these phones by themselves, and still talk as if they “know”. I would just say I’ve played with a Samsung Galaxy phone for a while (and multiple Android phones as well) you would see Samsung went away from the stock Android UI, to literrally copy the iPhone UI.
What is that element that makes it more iPhone-copy than Android stock ? Not just the look, The multipage desktop icon apps layout, with horizontal scrollable pages. In the stock Android UI, you end up with a long long single page screen (vertical scrolling) with every apps in there ordered alphabetically, or you have to build manually that multipage with shortcuts icons, like a Windows desktop…
Call me Apple fanboy or whatever, never mind.. for info, I don’t know if having played with many many Linux distros (Slackware, Mandake, Fedora, Ubuntu, etc.) as my main desktop for years makes me that. Nor being a big Chrome fan, Google user (email, iGoogle, and more..). I am just opening up to other things, probably not you I guess but why care, just exchange opinions here : it’s OSAlert, a place for multiple OS discussion and opinions. I hope it’s still the case…
HTC doesn’t deserve this and Microsoft doesn’t deserve free money from their work.
Google needs to be less vague about this and actually do something. Harsh words need sterner actions.
The fact that software is a written medium with a specific language should be more than ample proof that copyright should apply and not patents. There are basic fundamentals of copyright and patents and copyright is the protection afforded the written word. You should also realize that anything that the computer can do with software (ie the process) was invented and covered under the hardware patent. No one has any right to patenting what is later done with that. Its like trying to patent using a car as a vehicle for police.
A little known story about patent abuse: Thomas Edison invented the motion picture camera. While he owned the patent, he would only license the devices to people who were producing films he approved of. This led to the exodus of the film industry into what was then Mexico. They did this to evade the reach of patent law and gain the freedom to create whatever films the wanted. Later, the cite in Mexico became recognized by everyone as Hollywood.
Nokia had a line of internet tablets that only had wireless years before the smart phone revolution. They had many of the features deemed so innovative by Apple. Many Nokia customers begged for a cell phone to be added, and it was later on. As for the iPod, they assumed the form and function of the Diamond MP3 player after Diamond was sued out of the market. They even had to license that form and function from Diamond years year.
Google haven’t updated the Google toolbar for Firefox yet (which has terrible performance and superfluous code), I wonder why.
“It doesn’t take a conscious effort to make software incompatible. All you have to do is not work too hard at fixing bugs^aEUR”which, if you’re a big company, you produce in copious quantities. The situation is analogous to the writing of “literary theorists.” Most don’t try to be obscure; they just don’t make an effort to be clear. It wouldn’t pay.” – Paul Graham, 2007
http://www.paulgraham.com/microsoft.html
Embrace, Extend, Extinguish.
Google bought Android, Inc. in 2005, two years after its formation (innovation through acquisition?).
The original iPhone was released in January of 2007, the same year in which it was discovered that Google was filing patent applications related to mobile telephony.
The first commercially available Android phone didn’t appear until October of 2008, some 20-21 months after the iPhone.
Apple developed their iPhone and iOS, bringing them to market almost two years before the first Android phone. But Apple lacks innovation because it sued for patent infringement. But Google, which bought Android, Inc., never sold a single telephone, filed plenty of patents, and incorporated features that Apple patented and sold in their iPhone, is innovative.
http://jonathanischwartz.wordpress.com/2010/03/09/good-artists-copy…
Companies do not innovate, individuals do. Is sad that we will never know who the real innovators are. We say Apple, Google, etc. But in reality is the individuals on those companies that have the ideas and then sell them to their companies.
Is a pity that the patent system allows companies to fill up patents without giving credit to the real inventors and innovators. At least in movies you got the credits. On products, you have no idea who really created the innovative features of a product.