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Hi, I’m Brad Feld, a managing director at the Foundry Group who lives in Boulder, Colorado. I invest in software and Internet companies around the US, run marathons and read a lot.

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Time To Really Deal With The Broken Software Patent System

Comments (64)

I’ve been railing against software patents for a number of years. I believe software patents are an invalid construct – software shouldn’t be able to patented.

For a while, I felt like I was shouting alone in the wilderness. While a bunch of software engineers I know thought software patents were bogus, I had trouble getting anyone else to speak out against software patents. But that has changed. In the last few month the issue of software patents – and the fundamental issues with them – have started to be front and center in the discussion about innovation.

There have been two dynamite stories on NPR recently – the first on This American Life titled When Patents Attack! and one on Planet Money titled The Patent War. If you have an interest in this area, the two are well worth listening to.

In the past week, the discussion exploded starting with a post from Google titled When patents attack Android. The word “patent” shows up in 20 of the Techmeme River articles from the last week. Martin Fowler, a software developer, had a well thought out article titled SoftwarePatent. And they kept coming, such as Why Google Is Right Yet Short-Sighted To Complain About Mobile Patents.

But my favorite was Mark Cuban’s post titled If you want to see more jobs created – change patent laws. He starts strong:

“Sometimes it’s not the obvious things that create the biggest problems.  In this case one of the hidden job killers in our economy today is the explosion of patent litigation.”

And he ends strong:

“We need to face the facts, patent law is killing job creation. If the current administration wants to improve job creation, change patent law and watch jobs among small technology companies develop instantly.”

I hope my friends in the White House are listening. And to all the software engineers who are co-authors on patents that they aren’t proud of, or think are bogus, or were forced to create the patent by their company, or were paid a bonus by their company to write a patent on nothing, or are now working for a company that is getting sued for a patent they co-authored that they aren’t even sure what it says, speak up!

  • http://www.lowpan.com Jon Smirl

    “A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers.”This quote sums up the problem – 250,000 patents can be applied against a smart phone. Can anyone honestly believe there are 250,000 ‘inventions’ in a smart phone worthy of 20 year monopoly protection? What’s the shelf life of a phone design, a year?  Can this pile of paper destroy a truly innovative product like Andriod?A very simple solution to the patent problem is to restrict the number of patents the PTO can grant in a year to a small number like 5,000.  That will force the PTO to sort through the applications and only issue the good ones. Allow public comment on pending patents to keep politics to a minimum.

  • http://twitter.com/DonDodge Don Dodge

    Patents made sense 100 years ago, or even 50 years ago for mechanical devices and medical products. But today software patents make NO sense at all.Software is written just like a book or novel is written. Books have copyrights…not patents. Likewise, software should have copyright protection, but not patents. Giving a patent to software is analogous to giving a patent to a book author for the structure of a story with a protagonist, antagonist, love interest, and three part story arch. All stories are written that way. You can’t patent a novel, and you shouldn’t be able to patent software either. Just copyright it.Microsoft is awarded about 3,000 software patents every year. They have purchased tens of thousands more patents. How many innovative products have come out of Microsoft in the last 10 years? Just about zero. Patents are not innovation. In fact, they are barriers to innovation.Every software company on earth is violating hundreds of bogus patents. It is impossible to write software without unknowingly violating someone’s patents. It is just plain stupid. Software developers don’t even know they are violating a patent because there is no way to understand or interpret the millions of overlapping patents.Patent portfolios are normally used as a defense against any patent infringement suit. The reality is that any patent holder (who is an actual software company) is most likely violating the bogus patents of the company they are suing. So, it results in a stalemate where both parties settle out of court, typically by cross licensing each others bogus patents. It is absurd!This software patent insanity must be stopped.

    • http://kkurian.com Kerry Ivan Kurian

      I agree with Don’s sentiment. However, novels and software are not analogous as has been suggested.

      Unlike a novel most software transforms a general purpose machine — capable of universal computation — into a particular machine that carries out a particular function when running the software.

      Machines that do particular things or that are structured in particular ways tend to be patent-eligible. Modifications or improvements to existing machines also tend to be patent-eligible. In contrast, text that isn’t intended to do anything other than sit on the page isn’t patent-eligible. Thus, giving a patent for a software-enabled invention is not analogous to giving a patent to a book author for the structure of a story.

      To be clear, I’m not saying that software should or shouldn’t be patentable as a philosophical or public-policy matter. Rather, I’m pointing out that we put ourselves on shaky ground when we say that software shouldn’t be patentable because software is analogous to the structure of a novel.

      [By the way, software in and of itself (the Patent Office calls it "software per se") is NOT patent-eligible in the US.See the USPTO's Manual of Patent Examining Procedure (MPEP) at section 2106.01, "Computer-Related Nonstatutory [that is, NOT patent-eligible] Subject Matter”: http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2106_01.htm ]

      • http://www.feld.com bfeld

        The better argument is that software is equivalent to math (e.g. algorithms) and subsequently not patentable.

        The machine transformation test continues to be a major problem. The clever patent lawyers simply insert highly specific language that satisfies this causing software + magic language to no longer be non-patent eligible. But, if you read the vast majority of the patents, you quickly realize that the machine transformation magic language is just legal mumbo jumbo – you are still talking about software that shouldn’t be patent eligible.

        • http://over40innovator.blogspot.com Roger Toennis

          I agree that SW is at it’s core, math/algorithms. 

          But at it’s core a physical lever is in fact nothing but math also where the bar, beam or stick and the fulcrum are just a physical manifestations of an underlying mathematics that are the laws of this physical universe. (Too much physics and math I guess for me in grad school. :-) )

          Everything novel in this universe is based in math. So IMO using the “math test”, nothing is patentable.

          BTW: I’m not saying that is a bad thing. I just think we should remain consistent in our philosophic bases for determining if patents are “good or bad”.

          IMO either all novel mechanisms that do unique new things in unique and previously unknown ways are patentable or nothing is patentable.

          The patent system certainly is deeply flawed in execution. But before we decide to fix it or not we should ask whether we need it at all. I know there are good arguments for needing a rational patent system to protect the “small inventor”  but I’m also all for not creating brain damage in how patents are granted and enforced.

          Roger

          • http://www.feld.com bfeld

            Roger – I respectfully disagree with your assertion. The math / algorithm discussion and explanation is an important one. There has been a lot of discussion about this, including the great book from Ben Klemens titled Math You Can’t Use: Patents, Copyright, and Software

            I encourage you to grab Ben’s book and read it.

    • Pete Griffiths

      Don – when you say…
      “Software is written just like a book or novel is written. Books have copyrights…not patents. Likewise, software should have copyright protection, but not patents. Giving a patent to software is analogous to giving a patent to a book author for the structure of a story with a protagonist, antagonist, love interest, and three part story arch. All stories are written that way.”…IMHO you are mistaken in two regards.
      a) software is not just like a book because the expression of software is irrelevant.  As a simple example, if I take your software written in C and rewrite it in C++ so that it performs identically no user cares at all which language it is written in and the new work does not violate your copyright on the original.  Copyright provides no protection for software.
      b) You can’t give a patent to an author in the way you describe because as you point out ‘All stories are written that way’ and hence it would not be novel or ‘non-obvious to one ordinarily skilled in the art.’

      I feel your frustration but if we are going to make progress thinking about this issue we have to get some of these basics straight between us all. 

    • http://www.appeos.com Steve Jones

      Well said, Don, especially: “Patents are not innovation. In fact, they are barriers to innovation.”

      I totally agree with you about the fact that it is impossible to write any non-trivial software without infringing on some patent or another, but there is no way to find out.

  • http://kkurian.com Kerry Ivan Kurian

    There’s a lot of talk about railing against the current patent system. That’s fine. How about more talk about how to hack the system as it currently exists? We hack financing. We hack business models. We hack code. But when it comes to patents, we’re being told to hate the system / not play the game / give up and hire high-priced attorneys / give up and pay extortionists / etc.

    Mutually assured destruction is how the patent game tends plays out on the macro scale, so far as I can tell.

    But on the smaller scale I’ve seen real companies do real research and provide real value and get real patents and get sold for real money after years of hard work. Take Cryptography Research (acquired this year by RAMBUS) for example. So far as I can tell, those guys deserve the payday that they earned… they’re wicked smart, super focused, discovered real technical problems, and developed real technical solutions — some of which involve software so far as I know. If it weren’t for their patent portfolio there’s no way they’d have had their payday. Instead, the big financial institutions whose assets are protected by their technology would have taken the technology and run with it.

    Is that what we want? Big guys running off with the hard-fought developments of smaller guys?

    To say in broad brush strokes that “software patents are bad” just smells funny. There’s a baby in that bathwater — and it’s more likely that a middle path to software patents is better than the current path or no path at all. What the middle path is … that’s above my pay grade. I don’t know.

    What I do know is that we in the software startup community are so gassed by anti-patent rhetoric that we’re afraid to even ask questions about the current patent system. I’d prefer to see heavy hitters like Mr. Feld take a big swing at changing the system from the top down while we software entrepreneurs take the time to learn to hack the current system from the bottom up.

    • http://www.feld.com bfeld

      I don’t buy the big guy stealing the little guys technology in the context of software. Sure – software is a complex industry with lots of newcomer vs. incumbent dynamics. And there are lots of imitators in the software industry, but not just big companies. Every software company I’ve ever in vested in has fast followers and this has created pressure on the leader to continue to innovate.

      I’ve spent a lot of time thinking about this from a top down perspective. I believe the only top down solution is to eliminate software patents. In the 1980′s when I studied sources of innovation as a Ph.D. student at MIT, I formed a strong opinion that software could be protected by copyright and trade secret. This was before software could validly be patented. My feeling – 25 years later – is even strong.

      • Pete Griffiths

        Brad – I respect the sincerity of your belief and I agree that there are abuses and inefficiencies but like Kerry I have concerns about the current anti patent hysteria tossing the baby out with the bathwater.
        Let’s consider the alternative protections you suggest – copyright and trade secret:
        IMHO copyright is practically worthless as a protection for software IP.  It protects only the expression and whilst this is appropriate for say works of art where the expression is the work it provides no protection for someone who copies your work but alters the expression which is extremely easy.  
        Trade secret can absolutely be an appropriate means of protecting IP and if appropriate has the added advantage that unlike patents you don’t have to publish the implementation detail of your invention and it lasts as long as you keep it a secret.  BUT it only works for things that can reasonably be kept a secret.  A good example is google’s search code.  This can be kept secret because it is closely held on their servers.  But what about code that resides on a client device?  It can be decompiled and reverse engineered.  And if it is, for example, javascript it is there for anyone to just read.  It can be obfuscated but that’s the best you can do.  You just can’t hold it as a trade secret like the formula for coke or a search algorithm.  Hence there are important classes of software that can’t be protected by trade secret.
        If you allow that copyright and trade secret can’t protect all software then the question arises – does it matter if people can just copy the results of your R&D and thereby ship a product without any of the associated R&D cost? Here we seem to have a difference of opinion.  You feel this is unimportant, I feel it can be devastating.  
        Perhaps a way of getting a clearer handle on the issue is to take a case from outside our industry (as Paul Graham pointed out in his piece on patents).  Consider a pharmaceutical company that has to spend hundreds of millions of dollars researching a new drug and getting it approved.  Further consider that if such a drug is launched into the market copyright won’t protect it and neither will trade secret.  Any other such company can quickly reengineer the product and with no such hundreds of millions of sunk cost, launch a knock off product to compete with it.  In these circumstances will any rational CEO make such R&D investments?  I have seen people argue that they will, or that most drug research is government funded anyway, but to me it is luminously obvious that they won’t make such investments and that represents a disincentive to innovate.
        Some people argue that patents for drugs are okay, but software patents aren’t.  But as Paul Graham rightly observes the key underlying ideas are identical.  The danger is that infuriated by edge cases of crazy patents and the behavior of trolls people do indeed want to empty the whole bath and thereby remove all protections for those who are prepared to do R&D.
        It can be suggested that software is distinctively different in any number of ways.  But the problem with these arguments is that there is one way in which it is identical.  If a company is evaluating making what is (for them) a significant investment in R&D and if the result will be technology that can’t be protected by copyright or trade secret and which can easily be copied factoring this into the investment decision is as relevant as it is in the case of investing in drug research.
        The thing about the software industry is that the phrase ‘software industry’ disguises the fact that it is a hugely varied industry.  Lots of it involves building software that isn’t innovative at all. Lots of it is a spin on existing work.  Lots of it isn’t that expensive to develop.  But some software is extremely time consuming and expensive to develop and yet hard to protect as suggested.  To remove patents for such software is the equivalent of suggesting that Oracle say should just have its dbms source up on the web and rely on copyright.
        IMHO this is a much more tricky and nuanced matter than strict abolition positions suggest.  I do not believe the system is perfect, far from it.  I believe there are abuses bringing it into disrepute and I am completely open to any ideas on reform. But I am very clear that there are classes of software that need such protection and abolition will be a big disincentive to make investments in such software.

        • http://daleallyn.com Dale Allyn

          Pete, I know your comment was addressed to Brad, but just wanted to add two cents. 

          Below I mentioned that I’m pleased with the growing voice against software patents, but I am definitely not against patents. Pharmaceuticals must be patentable as you state, and I usually include that in my list of the types of patents which should be granted. I don’t agree that they’re the same as software because they’re “recipes” like a software application might be described. They’re quite different actually, and bear much different cost paradigms. That said, I also feel that there are certain software applications which should be carefully protected in the favor of the creator, but that those responsible for granting such protection are not in a position (or well enough informed) to do so fairly and properly. 

          Patent trolls and litigation abuse cause the majority of the problems in this space. Perhaps software will need a special type of copyright in which protections are more commensurate with modern times and issues. Paul got it right, “patents are a hard problem”, and we must not “throw the baby out with the bath water”. Still, saying that a particular line item or feature of a user interface such as “one-click checkout” or an underlined phone number should be protected by patent is simply absurd in my opinion. Some of it is akin to patenting the action of your grocery clerk placing your groceries in paper sack at the store, so that each market doing the same thereafter would have been in violation of a patent. 

          Let’s find ways to remove the profitability from the patent trolls and squatters while protecting those who produce unique work – and still allow for growth and innovation improving end-user experiences. (Sounds a bit like tort reform, eh?) I believe that what may be more appropriate is a different type of protection for software which does not protect against the use and re-use of obvious features and functions, but protects works in total, specific to an entire task. Even the latter is fraught with pitfalls.  

          • Pete Griffiths

            I agree.  It does sound like tort reform and I would support such reform.

          • Pete Griffiths

            I agree.  It does sound like tort reform and I would support such reform.

        • http://www.feld.com bfeld

          Pete – thanks for the long thoughtful response. However, there are two very specific things you say that I believe are inconsistent (and that I disagree with).

          1. “To remove patents for such software is the equivalent of suggesting that Oracle say should just have its dbms source up on the web and rely on copyright.” Incorrect. Oracle could rely on trade secret in this case. And they do. I believe Oracle’s DMBS success has been completely independent of patents. Furthermore, the notion of a relationship database wasn’t patented in the first place (of course it was invested before software patents were being granted.) The innovation in this area over the last 40 years – both non-commercial and commercial – has been staggering, and completely independent of patent. 

          2. “But what about code that resides on a client device?  It can be decompiled and reverse engineered.  And if it is, for example, javascript it is there for anyone to just read.  It can be obfuscated but that’s the best you can do.  You just can’t hold it as a trade secret like the formula for coke or a search algorithm.  Hence there are important classes of software that can’t be protected by trade secret.” True, but copyright applies nicely for anything that is more than trivial. And, anything that is trivial shouldn’t be patentable in the first place. You go on to basically say this: “Lots of it involves building software that isn’t innovative at all. Lots of it is a spin on existing work.  Lots of it isn’t that expensive to develop.” In addition, the dynamics of the open source industry, prior to all the patent nonsense around it (mostly due to acquisitions of companies that wanted to shut down the open source activity or extract licenses from it) are further demonstration of both the vector of innovation and commercialization activity that arises independent of patents.
           
          Finally, I strongly disagree with Paul Graham’s quote “One thing I do feel pretty certain of is that if you’re against software patents, you’re against patents in general.” I’ve never talked to Paul about this and I have no idea what he’s really thinking, but I’m very pro-patent in many areas, just not software (where I think they are invalid constructs) and business methods. In addition, I think much of the academic patent research done by folks that are not biased (yes – there is plenty of academic research done to prove a pre-conceived bias) shows that patents in different industries have very different market impacts.

          • Pete Griffiths

            Brad – thanks for taking the time to reply.

            With regard to your specific points.a) I know Oracle relies on trade secret.  My point was really a thought experiment to ask the question – would anyone expect Oracle to be happy about putting their source up on the web and relying on copyright to protect their IP?  I don’t think so.b) I don’t believe copyright is any meaningful protection for software no matter how trivial or non-trivial.  All a copier has to do is change the expression.I’m interested that you are not against all patents.  That leads the debate into interesting waters.
            But I don’t want to further hijack your excellent blog.  I’ll buy you a drink some time and we’ll have at it.  :)

            Keep up the good work.

          • http://www.feld.com bfeld

            I’m open for a drink to discuss anytime. Especially if it’s scotch.

          • Pete Griffiths

            :)

          • Pete Griffiths

            Brad – thanks for taking the time to reply.

            With regard to your specific points.a) I know Oracle relies on trade secret.  My point was really a thought experiment to ask the question – would anyone expect Oracle to be happy about putting their source up on the web and relying on copyright to protect their IP?  I don’t think so.b) I don’t believe copyright is any meaningful protection for software no matter how trivial or non-trivial.  All a copier has to do is change the expression.I’m interested that you are not against all patents.  That leads the debate into interesting waters.
            But I don’t want to further hijack your excellent blog.  I’ll buy you a drink some time and we’ll have at it.  :)

            Keep up the good work.

    • Kirk

      The only thing wrong with this thinking is that patents favor large organizations that have the resources to acquire the patents. I would be interesting if it were possible to sue the patent office for issuing patents that were subsequently knocked down through litigation or review for prior art. It could freeze the whole process of issuing patents in the first place.

    • http://pulse.yahoo.com/_UTFQXHKUCDYQ5E2RSBSSL4G4IA Bill Mosby

      It’s hacked already. Or perhaps “gamed” would be a better word.

  • http://www.facebook.com/peter.kadas Péter Kádas

    As an entrepreneur I have mixed feelings about patents. I read the above mentioned articles and listened to the podcast – and still confused. It’s clear that even leaving the opportunity to sue each other back and forth is crazy, pointless and ineffective. A possible option could be to restrict lawsuits by ordering the suitor to unconditionally prove his good faith and direct economic interest – in order to eliminate patent trolls. Another restriction could be to change the validity of patents to an ultra-short period of time, like 6 or 9 months exclusively for the software industry. This act would be justifiable by the disciple that in such a quickly developing industry a short period of time would provide enough competitive advantage on the market for patent holders, at the same time would leave space for further inventions. But is the software industry motivated enough to force such regulation?

    And back to my point of view: should entrepreneurs care about issuing patents when igniting a start-up, or not?

    • http://www.feld.com bfeld

      Even when a system is broken, you stil have to operate in it. So many early stage software companies apply for patents.

      It’s a really frustrating / difficult situation. I personally think all of the time spent on patent activity by software companies I’ve invested in is a total waste and not linked to creating economic value – I’d much prefer that they spent all of their time creating amazing products that customers love to use.

  • http://twitter.com/rsimon Robert Simon

    I agree completely. Software should be covered under copyright and trademark, NOT patent. Patent protection for software stiffles innovation.

    • http://www.infovark.com Dean Thrasher

      I think the software industry might be unique in that it has to deal with two independent regulatory regimes for intellectual property. And neither one is an exact fit, forcing software companies and developers into all sorts of legal contortions.

  • http://daleallyn.com Dale Allyn

    Brad, I agree with your position in this post, and with Robert Simon’s comment below. Software patents stifle innovation, as so many are now saying. Each voice adds to the choir and we need to speak up. 

    One sad reality is that patents still make some sense as a defensive move, simply to keep from being sued by patent trolls for using one’s own work. Patent trolls and squatters need to be squelched. Most software elements should not be patentable as they’re simply organized expression of language. The lawsuits we’re currently witnessing are absurd, e.g. an email address or phone number being underlined in a UI. Huh, are you kidding? 

    Trademark a slogan, copyright a song or novel or software application (the entire application), patent an insulin pump, but don’t cripple innovation as each developer works to improve user experience. Execute better, deliver better quality products and service, give users what they need and want! Users will then buy more of your product. Don’t sue to stifle competition and innovation. We all lose when that happens. And the added costs applied to products is enormous.

    Thanks, Brad, for your “railing”.

  • http://www.infovark.com Dean Thrasher

    I’m glad that momentum is finally starting to build for changes to the system for software patents. Thanks for speaking out so loudly and so often on this, Brad.

    Patent protection makes sense for physical devices where the cost of production and distribution are daunting to a new entrant in the market. It makes sense to give a new company some breathing room where existing players dominate the landscape.

    But the capital costs for producing software are extremely low and distribution via the Internet practically free; incumbents don’t have a lock on factories or retail shelf space as with physical products. So”the little guy” developing software doesn’t need the protection of the patent system.

    …Unless of course, they’re protecting themselves from bigger players threatening patent lawsuits.

    And that, in a nutshell, is why software patents ought to be abolished: because the only reason to pursue a patent is to protect yourself against those that already have them. It’s an arms race that nobody wins.

  • http://www.appeos.com Steve Jones

    Well said, and great words from Mark Cuban.

    For me, the whole patent system is dysfunctional. As an entrepreneur, I have no way of knowing if my new startup violates any patents. The only way I could find out would be to submit all of my source code and design documents to the patent office, who wouldn’t be able to help (due to staff/time/policy constraints), or pay millions of dollars to a patent lawyer to check it all, but how many lawyers understand source code, or even technical design documents?

    The only option is to launch and hope you don’t get sued, which cannot be good for innovation or jobs, and makes the USA a less desirable place to do business.

    • http://pulse.yahoo.com/_UTFQXHKUCDYQ5E2RSBSSL4G4IA Bill Mosby

      Patent attorneys I have talked to have told me to just go ahead and hope you’re not noticed. Oh, and if possible, arm yourself with as many patents as you can in hopes of having something to trade as a way to settle a lawsuit.

  • http://over40innovator.blogspot.com Roger Toennis

    Brad,

    So I’ve read or skimmed all your SW patent posts over the past few years and alhtough you never really say it bluntly it seems you are against the whole concept of patenting itself. Or is it that you are  just against what you call “SW patents”? 

    Also what exactly do you mean by a “software patent”? 

    Are you saying any novel idea at all that uses any amount of what could be defined as “computer software” that is compiled and is executing on a computer as part of the mechanism should be immune completely to being patented?

    Or are you saying that only patents where the entire novelty of the described preferred implementations of an idea are wholly contained within the bounds of software code itself?

    I’m guessing you are saying the latter but again it also seems you may be against the whole concept of patenting for any novel invention?

    Thanks,
    Roger

    • http://www.feld.com bfeld

      I am not against all patents – I’m only against software and business method patents. 

      • http://over40innovator.blogspot.com Roger Toennis

        OK. Thats cleared up for me.

        But I guess I’m still trying to understand how a patent app qualifies in your view as a “software patent”. What would be your test for a patent that would determine if it is or isn’t a SW patent?
        For example: Imagine someone took one of the lego advanced Robotics kits that lets you plug and play both hardware elements and the software that gets written and loaded into the assembled robot. Imagine they create a new kind of robot configuration that is able to climb walls and autonomously clean skylight glass for any ceiling and skylight format you may find.Is that patentable and if so why is it patentable. If it’s patentable is it just because it’s a physical thing; even though the real novel innovation is in how the SW that runs the robot was written to be able to flexibly figure out how to drive the robot in the cleaning of any format of skylight? 

        Clearly off the shelf lego robotics hw components are prior art and not novel. Also it would likely be the cases that the SW design inside the robot that lets it clean any format of skylight is the novel core of the invention.

        So in your view does it have to be the novel assembly of physical robotic HW components that is possibly patentable with the SW design not being patentable? Or is it the unique assembly of the HW AND the SW design together that is patentable even though all the real novelty resides in the structure and operation of the SW?

        Bottom line: 
        What is in your view the “harry potter sorting hat” for saying something qualifies as a SW patent or not?

        R

        • http://www.feld.com bfeld

          Your example wouldn’t pass the novel or non-obvious test. Many things linked to a machine fall in this category.

          While I don’t think there’s a Harry Potter sorting hat, any software patent that uses a “generic computer” as the machine isn’t going to pass the test for me.

          • http://pulse.yahoo.com/_UTFQXHKUCDYQ5E2RSBSSL4G4IA Bill Mosby

            One idea I have had to help sort out what might not be patentable would be to determine if someone could conceptually do in their head, however slowly, what the software does. If so, perhaps that would provide some kind of test as to whether a process is an algorithm or mathematical formula.

            I have one other question, which will show my lack of knowledge more than anything else. If we now have a “first to file” rather than “first to invent” patent system as I have read, does the concept of prior art still have as much to do with determining patentability as it used to?

          • http://www.feld.com bfeld

            It’s supposed to but you’ve brought up an obvious conflicting challenge.

          • http://pulse.yahoo.com/_UTFQXHKUCDYQ5E2RSBSSL4G4IA Bill Mosby

            Goody, there’s still time for me to patent “+”, then, lol!

  • http://www.onetruefan.com Eric Marcoullier

    One of the core frustrations for me is the difference in specificity between mechanical and software patents.

    You’ll never see Tesla own a patent on a “process for creating an electric car” that reads “attach an electric motor to a car.”

    However, this is precisely the broad language used in the majority of software patents.  They focus on the “what” instead of the “how”.  The Amazon 1-click patent (http://www.gnu.org/philosophy/amazonpatent.html) is a perfect example.  “The user clicks X, then Y happens.”

    Sadly, I worry that patent reform isn’t viable.  The Patent Office is already completely overwhelmed ad the additional burden of reviewing the last 15 years of software patents would effectively break the system, including the parts that DO work.  You have probably written about this in the past, but have you suggested a way to effectively dismantle software patents?

    • http://www.feld.com bfeld

      I am also pessimistic about any near term change, but given the escalating chaos someone may get focused on it. Ironically, the USPTO is in the best position to do something but they are very confused and conflicted around this. The White House could have material impact here if they focused on it, similar to what they are trying to do with Startup Visa. And Congress ultimately could do something, but they won’t.

      Disappointingly the Supreme Court had a chance to do something about this a year ago. They punted and said it wasn’t their responsibility. Oh well.
      There’s a chance the software industry itself could do something. I’m percolating on an approach, that while radical, might work if enough companies – both large and small – got behind it. But it’ll take a lot of energy and I’m not sure I have it right now.

      • http://www.onetruefan.com Eric Marcoullier

        I’m reminded of a recent Umair Haque article where he describes our current economic situation as perma-crisis ( http://blogs.hbr.org/haque/2011/08/market_correction_try_perma-cr.html ). In particular:

        When you don’t reinvent institutions at a time of systemic failure, the problems they’re creating don’t just magically disappear.

        The longer it takes you to see a crisis for what it truly is, the disproportionately worse it’s likely to get.

        When people who are prisoners of the paradigm that caused the crisis are in charge of fixing it, bet on…more crisis.

        (Hope we get a chance to have lunch sometime soon — would love to hear about your radical approach.  The MyBlogLog guys have randomly discussed removing all our names from our post-Yahoo patents and thus invalidating them, but I’m pretty sure we would get sued for that.)

  • Yml

    Friends of mine have heard me complain about the idiotic software patent regime in this country for many years now but despite all that I have never found the right words to express to the non-technical audience /WHY/ software patents are so bad … in a language they can understand until I came up with the following analogy which has seemed to get the point across:

    http://appupdate.com/fv-b-1-5/why-software-patents-are-a-terrible-idea–or–why-you-shouldn-t-be-allowed-to-patent-a-better-virtual-mouse-trap-.html

  • Kurt Harriger

    I sent a letter to patent office last year when they where asking for feedback. The letter is on my blog.

    http://kurtharriger.wordpress.com/2010/09/26/software-patents/

    I am now of the opinion that if one is to patent software they should be required to disclose the source code for the system they have patented. The whole idea is that if a company shares their inner workings of there invention we all gain that knowledge and the company is entitled to a share of profits if that invention takes off. However I have never read a software patent and said “Wow, I understand how that works now.”. Most software specifications are crap. The only thing that is remotely useful is working code and many industry standards have “reference implementations” for that very reason and even still many implementors still get it wrong. Once the code has been disclosed its much easier to determine if another company as created a derived work or developed their own unique implementation.

    • http://www.feld.com bfeld

      I strongly agree that every software patent application should include the source code. That would change the dynamics overnight.

    • http://www.feld.com bfeld

      I strongly agree that every software patent application should include the source code. That would change the dynamics overnight.

  • James

    Hopefully the below patent just makes you laugh to yourself and not puke in your mouth…   oh the hypocrisy!     

    James

    The United States of America as represented by the Department of Health and Human Services  holds this nifty little patent #6630507
    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=6630507.PN.&OS=PN/6630507&RS=PN/6630507

  • http://twitter.com/kurtharriger Kurt Harriger

    I just had a brilliant idea.  Let’s create and promote a new Open Source License that is free PROVIDED that the user does not hold any software patents or the patent holder has patents that are used for defense only (cannot be sold or transferred).  If a patent holder wants to use the software then it could be dual licensed and they would need to pay for it.  Corporations that then acquire startups using such software would be forced to negotiate a different license, re-engineer or relabel all software patents as defensive only. 

  • Nashman

    New hardware normally requires software in today’s world.  

    There is no way to separate this because software is basic to equipment operation.

    Get
    rid of patents and then forget about innovation.

     

    Forget
    about R&D departments and their employees.  

    You can also forget about a large number of capital investors.

     

    No
    more new iphones. Who is going to pay when anyone can copy. 

    Why have R&D.
    It is no longer a profit maker.

     

    More
    things will be made in China where low costs and high expertise in backward
    engineering
     is better available.

     

    Consumers
    would be happy with lower prices in the near term but no more advances because 
    no one wants to pay for them if they are free for copying.

    Patents, including software patents, are a relatively small cost compared to the profits being 
    made. Where there are
    a lot of patents, there is usually a lot more money.

     

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