software patents: are they moral, how much do they cost

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software patents: are they moral, how much do they cost

Post by johnhpus »

I'm no legal expert but software patents seem bad for everyone. When it hits the level of the Crazy Taxi case, where the concept of pedestrians fleeing cars was patented and a company was sued, it reaches absurdity. It also seems to me that big companies are the ones owning and flexing software patents.

But what if I, some random programmer, have a system that I feel qualifies for a software patent and I'm certain that it works? Would it be immoral of me to patent this system? It's possible that another company could develop and patent it on their own, and prevent me from ever using it.

Does anyone know how much it would cost to get a software patent? I think patent lawyers may be a pricey breed of super lawyer.

For what it's worth I've never seen anything similar before and so I assume it's not already patented.
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Post by Praetor »

Patents are really expensive to obtain, and the process is long and tedious (I don't quite want to say complicated here, but it is close). That means the average person is unlikely to want to get a patent, since it takes a considerable amount of effort. That's where the pricey lawyer comes in, and they are very pricey. All this makes it so that the small guy is less likely to get a patent.

Then, look at the market we're in. The pace of software is fast. Is a patent from 2 years ago still relevant? I know a shadowing technique that I would have liked to use, but was patented. Now, there are already better techniques and I don't care about the patented one. By the time you get a patent on anything actually novel (instead of pedestrians fleeing, which is stupid) software has already outpaced you (supposedly it takes about 2 years just to get your patent).

And the final thing is that you have to be willing to fight for your patent. Are you going to sue EA or Microsoft games over a patent infringement, because the onus to do so is on you. And don't forget the "game" that is played. You file a patent over something that is really great. Another player takes your idea and adds the tiniest upgrade to it, and they can patent that upgrade. Now, you are stuck with the old version. This sort of leap-frogging happens a lot, and it takes a lot of effort to keep up with it.

In my opinion, unless you have something really really amazing and a really core technology, don't patent. They are not worth it.

Oh, and no, I wouldn't think of you filing for a patent to be immoral at all.
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Post by deficite »

In your case, not immoral at all. You're simply trying to protect yourself from being locked out in the future. It is sad though, that someone would have to be in your situation. Fear that you can't even use your own idea? SOMETHING IS SERIOUSLY WRONG HERE!

I never heard about the Crazy Taxi case, but that is just utterly ridiculous. So is the patent office telling us that we are supposed to make pedestrians just stand there and get killed (a la Austin Powers steamroller scene)? That's ludicrous. What's next? A patent on a color selector 8)?
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Post by Project5 »

@johnpus: From a research standpoint, they look as good on a resume as publishing a paper in a good journal, even if you don't have the clout to enforce it from a business perspective.

@Praetor: I'm going to preface by saying I'm not a patent lawyer, this is secondhand from one so a few things could be off.

If someone incrementally upgrades your idea and patents that, if they want to use their upgrade I believe they need to file a license for your patent to do so, as they would have a device that violates all of the claims on your patent.

On the other side, if you're designing around a patent, changing the system to not perform some of the claims in the patent I believe is a way out, but this is a legally defensible position and not a right; you'd have to prove that things were changed in court if anyone claimed violation since the two ideas are similar. So even if you're in the clear you'd still need to hire a lawyer and defend yourself.

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Post by sinbad »

I wouldn't call all patenting immoral, I just think the vast majority of software patents are groundless and just hamper true innovation - which is immoral. The number of companies that just have people to spit out patent applications for everything under the sun is utterly immoral. The fact that the patent office has a vested interest in encouraging heavy patenting, regardless of quality, since they are no longer funded by the government is immoral.

I think patents are primarily for large companies that can afford the overhead and need to be in the arms race. The claim that they promote innovation in small companies is a crock - the opposite is true because so much work is incremental. Owning one or two patents verus a large company's thousands is like running onto the field of battle in your underpants with a pea shooter.

I think patents are useful for small companies in precisely one situation - acquisition. Having a patent will undoubtedly increase your acquisition deal (because the larger acquiring company can fold it into their accumulated arms), regardless of the actual validity of the patent. Don't for a second think that having a patent will let you take on the big boys unless you have very, very deep pockets indeed.

This was an interesting take on it recently: http://www.theregister.co.uk/2007/06/19/pwc_ip_report/ - an acknowledgement that rapid-fire bullshit patenting practices might actually be a bad idea. Who knew?
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Post by Praetor »

@project5 you are right I think. But then, the original company is not allowed to use the upgrade either. And back and forth it goes. What a funny little game it becomes. That's why the big boys have their little club with their patent deals. It becomes impossible to operate without stepping on someone's toes.
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Post by Bagheera »

This might be the place to point out that you can freely browse the U.S patent database via Google (it's a service of theirs, you can look it up).
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Post by milieu »

I believe that the Crazy Taxi case was never actually litigated. Fox backed down, so Sega's claims were never tested in court.

What they were suing over was probably more of a "look and feel" case, which means they felt the Fox game was exactly like theirs. These sorts of cases have generally been successful in the past (Tetris, I think Asteroids too), so Fox probably didn't want to try their luck.

That's the worst thing about IP law. Most of the time, parties back down and settle out of court to avoid court costs, so nothing ever gets resolved in court, and we end up with these complete grey areas. Can you patent Crazy Taxi? We don't know.

I don't believe they would have been successful in patenting an element of gameplay, i.e. "Pedestrians dodge". You can patent how a specific algorithm to do that works, but not the basic concept as a whole. However, I am not an judge, so who knows how this would have worked out.

Good article on gamasutra about patents and their abuse, including this case:
http://gamasutra.com/features/20070227/sirlin_pfv.htm
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Post by johnhpus »

Thanks for all of the advice. You've all raised solid points.

So it's pretty clear that even if I owned a patent I couldn't necessarily stop any big company with pockets from using it. So the only value of the patent would be in my selling the company that owns it or selling the patent itself (except as an item on a resume which is a cool perspective).

That brings me back to the moral question. Could I could try to patent the system with no intention of using it in production myself, and then try to sell the patent to a bigger company? When I cross the line from "I need to preserve this for my own use" to "I know you're going to need this someday so I'll get there with a patent first", does that become too similar to the practices we all dislike? Is it immoral to whack them on the nose with their own newspaper? (hah, to extend the metaphor, they're the ones who've crapped all over the house)

Edit:
I'm going to read the links you guys provided. Maybe I'll have a better perspective or more questions when I'm finished
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Post by inneractive »

Here is an interesting essay on software patents.

Are Software Patents Evil?
A company that sues competitors for patent infringement is like a defender who has been beaten so thoroughly that he turns to plead with the referee.
http://www.paulgraham.com/softwarepatents.html

Yeah, you should patent your idea. Nobody will try to sue you unless you become big enough to be a competitor, but if that time ever comes your patents are one of the weapons you can use to protect yourself from the big guys. Of course, Paul Graham's theory is that if you have become big enough to draw such attention from the big guys, you have probably already beaten them... (Companies won't sue you unless they are desperate, like Microsoft threatening to sue Linux distributors.)
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Post by Praetor »

The decision not to include some clause forcing a patent-owner to attempt to use their patent was not an oversight it was a conscious decision. And the right one I think. You may feel someone sitting on their patent is simply getting in the way of progress, but I think that is simply a temporary delay. The assurance that you own your idea regardless of your means to implement is an important one for inventors in any field. While software may move faster than other fields I think it's foolish to go too far afield with special rules only for the software industry. Business in general is full of frustration but protecting the ideas of the inventor really needs to come first. So, in a long way I'm trying to say I think it is far from wrong for you to patent a system that you have no intention of implementing. You would be doing precisely what was intended.
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Post by syedhs »

But it would be foolish not to do anything in regard of software patent. Result speak everything, so something need to be done.
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Post by Project5 »

Again, I'm not a lawyer, this is secondhand.

The trouble as I understand it is that patents were created to defend 'things' and not 'ideas'. Following a ruling (in a case which I'm forgetting right now) software was deemed patentable by a court decision and not by law.

From the other side, in Turing's papers, he proved that his computer would be able to effectively emulate any other machine. Since ideas are not patentable, but expressions of them are, a piece of software is only in violation once it causes a computer to perform an action that is patented. Since software that you don't execute is a trivial case, the problem is, can software be considered a thing or an extension of math and ideas?

I believe this is the legal distinction that the EU differed from the US in interpreting.

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Post by Praetor »

Other way around, actually. Patents are precisely intended to protect "ideas." Copyright protects "things" (or the expression of an idea, if you will). Since you can see that a patent is so far-reaching that is why patents are so much harder to get (a lot! since Copyright happens implicitely whenever you create something, at least in the US). I don't think the patent law had previously singled out certain industries, so any court decision saying patents cover software is simply affirming what should be obvious from the law. Until Congress takes away patent protection from software the courts can blabber all they want. Protections for intellectual property definitely appears in Article I and not Article III.
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Post by sinbad »

Software patents woudn't be a bad thing if they were reviewed properly by people who actually had a decent idea of what is novel and what isn't - ie experts in the field. But that doesn't happen - any random glance at some of the patents which are approved proves that. A poorly implemented decision making sytem which requires large legal fees to challenge is inherently biased against anyone who hasn't got an in-house legal team and/or pots of money.

If software patents are to continue, the novelty barrier should be much, much higher than it is. The fact that someone can patent a 'one-click' or 'buy me now' button is just an outrage - that's called monopolising a trivial implementation, not protecting a valuable invention. We need an organised peer review system with people who actually know what the hell they're talking about instead of a patent office that has a vested interest in rubber-stamping vacuous patents.

My opinion is that when a significant majority of a system is flawed, anything that goes through it is tainted. I think the IP economy as currently marketed is fundamentally broken and it's just a matter of time until it collapses in on itself in some fashion.

[edit]The US patent system is in the mess it is precisely because it's been too woolly about what an 'idea' is. Patenting isn't about just ideas - if it was, I could patent the idea of a flying zero-point energy car, and then sue the person that actually invents it, which is nonsense. The idea has to be fully implementable and the mechanism for doing that presented in exacting detail (at least in the UK). The invention also has to be novel and non-obvious to a person in the field. The latter is where the US patent office has totally f**ked it up in the last 5-10 years because they seem to employ monkeys to whom everything is non-obvious. Which results in nonsense like the Crazy Taxi patent.
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Post by sinbad »

My other problem is that over-abundence of patenting just stunts the growth of an entire industry. What would have happened if Ken Perlin had patented his noise algorithms, instead of just releasing them as academic papers? Or if the creators of the first 3D APIs had done so? Or if Carmack (or whoever) had patented deathmatch?

All of us have to take responsibility for the larger ecosystem we live in. Free exchange of ideas is a huge driver in the innovation and growth of any industry. I worry that the emphasis on acquiring and fixing IP rights in current times will put a massive brake on a huge amount of small, start-up innovation because someone will own almost anything you care to use. It's fair enough if it's something particularly inventive and amazing, but that's not the trend I see happening. I see people carving up existing knowledge spaces into their own private domains through sneaky wording and setting up fortresses to battle each other from. That's not the spirit of invention, that's the spirit of the lawyer.
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Post by tyoc »

I have readed that they (*big* companies) only play the game... they only make use of what is there... and what is there is a poor patents system, like stated previously... and they play because if they don't, other will do it... and guess what *they fear*... what you will protect yourself if you don't have fear?... precaution? and that isn't fear also?


IRC I remember been reading a patent on how to train a cat or a dog don't remember, it was with a laser light, you project it to the floor and make the animal follow it 1 time and another!!!!...


Hey!!!! I do that all the time I have a laser pen, for fun!!!!!, but I guess if fun is enought they will sue me for using the system!!!!


We all have inventions ala "Julio Verne", for example I have think about computational light before I read any book on the subject and a lot of other things. The universe is chaotic, some times inventions aren't taked serious in some places, and after time it get back. We have to little time to wait for the restrictions of a imposed system over the nature of invention and innovation, when we go from "Julio Verne" to something "real" we need to collaborate and expose.
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Post by Praetor »

Yeah, the idea can't just be an idea. Hence the old requirement that a model of the invention also be submitted. You don't have to submit a model any more but I do believe you mus submit a plan for how you would implement the idea if you could. Hence, your zero-point energy car idea would need to be submitted with the plans for how you actually make a zero-point energy car. But I agree, the issue is that the people reviewing the application would have little clue about zero-point energy, and may not even be well-versed in automobile technology! The US patent office recently put into place a new trial processing system where peers could review pending patents. Hence, software companies can review pending patents for software and easily call bullshit! on it. I'm not sure the procedure for when a peer does expose prior art but it seems like a step in the right direction at least.

I'm not so on-board with outside-the-US systems either. Mainly because they are normally based on a first-to-file system instead of first-to-conceive. Obviously it takes care of the prior art problem, but it seems like such a cheap way around the issue.
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Post by inneractive »

First, we cannot assume that all of these patents will hold up in court under scrutiny. That would be playing into the primary strength these patent holders wield, FUD (Fear, Uncertainty, Doubt). Since Google has gotten big they have been targeted with tons of frivolous lawsuits, for things as simplistic as the Hyperlink, but they seem to be doing very well despite this. Meanwhile, Microsoft plays the FUD card on Linux users every few years, but never actually follows through with suits because the patents they claim Linux violates probably would not hold up in court.

I agree that patent reform is needed. With Democrats in charge here in the US Congress and patent reform being one of their major issues, I suspect that some changes will come. At the very least I hope they can reduce the number of frivolous lawsuits, because small companies and individuals cannot afford to defend themselves in court.

Until then, patent your software, because for individuals and startups who cannot afford to maintain a team of lawyers your patents are your only defense.
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Post by Project5 »

@Praetor: it can just be ideas without an actual implementation, or more specifically, the 'business method' type of patents just require a process and not a thing. That's why I called it patenting of ideas before.

Because an implementation is not a strict requirement, the patent office also lets through items that cannot exist. The author of zlib lists a few impossible compression patents that he's seen (on zlib's faq).

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Post by Dom »

i think there are more disadvantages than benefits for society and economics on national or international range. Only a few would benefit though a broader mass created the base or the even the ideas.

http://www.nosoftwarepatents.com/en/m/b ... earch.html
http://www.nosoftwarepatents.com/en/m/d ... index.html

Even if there is prior-art you need to go to court which costs more money than any small company can afford.
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Post by warmi »

At the very least I hope they can reduce the number of frivolous lawsuits, because small companies and individuals cannot afford to defend themselves in court.
The Democrats are the last people to do something about it given all the money they get from trial lawyers.

In fact in the last decade , every time a legal reform was attempted it was done by the Republicans, and in every case it went nowhere thanks to unified opposition from the democratic party.
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Post by deficite »

warmi wrote:
At the very least I hope they can reduce the number of frivolous lawsuits, because small companies and individuals cannot afford to defend themselves in court.
The Democrats are the last people to do something about it given all the money they get from trial lawyers.

In fact in the last decade , every time a legal reform was attempted it was done by the Republicans, and in every case it went nowhere thanks to unified opposition from the democratic party.
[offtopic]One of the reasons I'm looking to find work outside of the US whenever I graduate college. I'm fed up with the US government "leaders". There are so many problems in the United States that our citizens are VERY vocal about, yet are completely and utterly disregarded by the politicians. I think it's cute when people think we actually have a democracy in this nation. For one thing, the electoral college discourages participation in elections, because your voice doesn't amount to anything if you live in a state that is majority red or blue. I'm going to vote next year, but I'm not really too convinced that my vote will even matter because I live in a republican state. The only reason I'm going to vote democrat is because it's the lesser of two evils. I hate being put in that situation.

Things like the FCC and the patent office, etc. have been complained about for a long time. I haven't heard or seen any politician raise a finger to try to fix either one. They're not under direct gov't control anymore, but that doesn't mean the gov't can't step in when something is damaging. The policitians don't care because they don't get many votes. They have to go on mellodramatic rants on high-profile issues so that they can get their corporate funding (disgusting) and votes. Many politicians don't even agree with their own platform. They just pretend to to get funding and votes.

I think the only way you can get anything done in the United States is money. It's not a new concept either, this country has been run that way since its inception. We could have a million people at a demonstration about the patent situation if we wanted to, and do you know what the response would be from politicians? You wouldn't get one; they'd still ignore you. However, if you get a million dollars placed into the right locations, they might casually mention it. There you have it. One million dollars is worth more than one million people.[/offtopic]

The patent situation will never be fixed. Doesn't mean we should give up, but it won't be fixed. In US history, changes have been made when they are convenient or are necessary to protect somebody's money. Until people stop using software from companies that patent things left and right (which won't happen because not everybody knows the patent situation, not everybody cares, and you'd end up without any software but the OSS stuff) or companies stop making these stupid patent claims, the patent office won't stop and politicians won't help us make them stop. Great country, huh?
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Post by tyoc »

First, we cannot assume that all of these patents will hold up in court under scrutiny.
I was thinking that "scrutiny" was the job of the patents office... :roll:... :lol:. If that was the job of that office, then they are dumb totally by principle and fact.


The law is interpretable, and all people can argue if you have millions to argue against 1 that cant hold the argue, then you are in the right path using the defective system in this way.


Why?? because it can be used (like a lot of things), and in fact is used. MS know this, Phillips, HP, Intel, AMD, Samsung, NVIDIA, ATI. And that is why they get finally to not get in a court... who will stand if they apply all the patents against each other??? the 1 that want to us more of his money. I have read somewhere that 1 company of this can put 3,000 patents each year or more.


Patents are for "protection", but see that they aren't used like that? why if MS has "such" a lot of patents against OSS why they don't apply them?... they are not "good" people, they are bussines people... they are in failure in apply the correct, and the correct is use his patents, they only use patents for food I was thinking that patents wasn't done for FOOD but for other purpose, but in fact patents ARE USED for food, strategy, for stop the competitor, for advice competitor about something you don't like or near the same advise others to not to use something like your oh so wonderfully idea (a la crazy taxi).
Only a few would benefit though a broader mass created the base or the even the ideas.
In my point of view:

* They should stay personal, in that way no company can hold them, and personal to the inventor, even that you are under a company.

* The patent can be applied by the inventor, the company can't do nothing without the inventor, the inventor perhaps can not do nothing without the money of the company except if is very clever.

* The patent is there while the inventor and the company hold in a good relation, when it is broken the patent has been lost be the inventor and by the company, and say for a max of 5 years.

* The "fights", are in a issue to issue basis in a public specialized consortium and not with lawyers of millions of dollar a year.

I think some like this will require less money, a little company can stand and still against a large company, require less time to show the facts thre is no chance to argue, because what is showed are the patents and not the cash show of the interpretation of the law and lawyers.

* Science is about science, technology is about technology, law is interpretable and only large companies can hold in a battle. And sure lawyers are not science people or technical people, if not they will be doing other thing than being lawyers. Science and technology things should be open and public and not closed to spell about them in a court.
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Post by Praetor »

@deficite I think the affect here is that you notice problems more acutely because you currently live here. Move to England and you'll get fed up with the fact that you can't step outside your home without gov't cameras watching your every move. Move to Sweden and you'll be fed up with the forced equality of painfully high taxation (and other systems). France, Japan, Australia, anywhere you go you'll encounter problems that make you fed up. The problems of the place where you live will always seem more potent than those of far away places, but that doesn't mean they actually are.
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