Ugh....

Patent and license squatters are scum.

Microsoft gets shafted by abuse of IP protections? Boo-fucking-hoo.

It's not just the patent system, it's the entire field of intellectual property that's in crisis these days. The concept needs to have its foundations reworked, or be abandoned.

And where would you have found this kind of wise takedown of the issue? Nowhere else besides Political Animal. Keep up the good work, Kevin.

Perhaps the most unfortunate aspect of this is that it adds fuel to the Republican mantra: "You see!?!? Out of control lawsuits! Tort reform people! Without it, you, You, and YOU will be sued for (not millions) billions!"

For all the other reasons Kevin mentioned that this is can be viewed as ridiculous, this is the kind of junk that becomes the next "spilled hot coffee in the McDonalds drive-thru." It becomes just another unneeded hurdle for consumer advocates.

DJ: Sure, sure. But if this verdict is upheld, everyone else is going to have to pay too. It's not just Microsoft.

Zachary: True enough. But in this case it really is abusive. (And the problem is with patent law, not the tort system.)

The whole patent system has become abused. All the large (or able) companies are filing patents as fast as they can, here and overseas. The US patent office is months and months behind their work.

Where did this surge come from? Because you can benefit from patents that do not necessarily assign to you. Go to court, earn money by suing.

Now you can patent a DNA code. You didn't invent it. You haven't yet used it. But it's yours!! Because you recognized it! That makes no sense.

Greed and possession dominates this plain.

Not to go on, but patents and copyrights need to be reformed with the benefit of society as a whole as the baseline, not narrow interests.

That's where these laws all started.

So how about MP3, the ubiquitous music encoding standard?

It’s an awful standard if you care about fidelity and it’s a large step backward from the format used by standard CDs which has been around since the early eighties. With the all the advances in digital capability that have occurred since CDs were introduced you’d think we’d have better choices by now

I remember seeing a piece on the news a couple years ago about a bar in NY that was calling itself "The Brooklyn Dodger"; and how the LA Dodger organization - who still hold the copyright on the name 'Brooklyn Dodgers' - was suing the bar owners to force them to stop using that name for their bar. And the general tone of the story was "isn't it awful that the big corporation is picking on the poor little bar owner", etc.

Until the lawyer/representative the Dodger organization comes on and says "No, you don't understand. Copyright law in the US says that we *have to* protect our copyright. If we are aware of the bar's use of the name 'Brooklyn Dodger', and we don't do anything about it, we forfeit the rights to that name for good and always."

So my question(s) would be: is there a similar concept in patent law? how long does a patent-holder have to 'react' when they become aware of an infringement on their patent? hasn't Alcatel-Lucent long since passed the deadline?

"Sorry, your honor. But we only became aware of the various uses of mp3 technology out in the world in 2003. The five years before that? We were, ahhh...busy...in the lab! Yeah, that's the ticket! Working...in the lab!"

Patents are what allow giant drug companies to rape the public. The 17 year life of a patent is outrageous. A couple of years would be more like it.

The government can't even manage the patent system properly. Why would you want them anywhere near your healthcare?.

Why would you expect them to be able to turn Iraq into a liberal democracy?

Two words: ogg vorbis

Two words: ogg vorbis

Is that an alternative to MP3?

I'm just afraid of the implications that this will have for the OTHER countless companies that did the exact same thing Microsoft did in this case, under the assumption that it was doing legit licensing.

in houston there was a bar that labelled itself, the velvet elvis.

the presley estate sued. copyright infringement,

and won.

i an still shaking my head. are judges or sale? you bet.

Interesting. I am reminded of another Alcatel-Lucent patent dust-up that's still in the pipeline. The phrase you want to Google is "Son of Rambus".

I should mention that the "Son Of Rambus" case has an additional element that pisses off patent abuse critics, i.e. subversion of open standards bodies.

Two words: ogg vorbis

Are you sure that this format does not infringe on a patent? Just because the developers GPLed it that does not mean some patent holder could not go after anyone that uses it.

DJ: why do you think Alcatel/Lucent chose Microsoft to sue first? Precisely because Microsoft is such an unsympathetic defendant in an intellectual property case, which gave Alcatel/Lucent the best chance of a favorable precedent with which to go after everyone else.

It's the same sort of thing as the Jose Padilla case - where the Bush Administration picked a schmuck no one could love as their test case for the power to apprehend US citizens in the name of the war on terrah. (Though I don't for one minute pretend that what's happened to Microsoft is anywhere near as bad as what happened to Padilla.)

In trademark law there's an assumption that holders of a trademark must defend it against infringement if they wish to continue having legal rights to it. This prevents "submarine" trademark claims if said trademark has passed into general use when the holder failed to contest others using the trademark.

Some similar idea ought to come into play with patents; this would prevent someone from secretly holding a patent on an idea or technique that comes into wide use, and then attempting to enforce extortionate claims on users of the idea or technique.

Here's a bit of the Constitution:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Couldn't Congress go about determining that the "limited times" are a bit too long these days for certain types of products, thereby introducing a bit more sanity into the process? Or, do we have to put up with the Mickey Mouse legislation that gets us 75 years of copyright protection for "Steamboat Willie"?

It might even be nice for Martin Luther King Jr's speeches to enter the public domain during my lifetime. But sadly under the current legal regime that won't happen until 2043, I guess.

Google "the doctrine of laches." It's not absolute, but you can bet that it will be a large element of Microsoft's appeal.

Until the lawyer/representative the Dodger organization comes on and says "No, you don't understand. Copyright law in the US says that we *have to* protect our copyright. If we are aware of the bar's use of the name 'Brooklyn Dodger', and we don't do anything about it, we forfeit the rights to that name for good and always."

Which is the BS excuse that they always use. Yes, they are required to defend their marks, but they cold also just have licensed use of their mark, in this case for, let's say, $1/yr, without any fear of losing their mark.

I, for one, welcome our new patent-imposing overlords.

"Which is the BS excuse that they always use. Yes, they are required to defend their marks, but they cold also just have licensed use of their mark, in this case for, let's say, $1/yr, without any fear of losing their mark."

Yeah, except if they lease it to one guy for next to nothing, then another guy comes along and wants the same deal, then another and another and...and they sue if you don't give it to them, like you gave that other guy. If you give away your copyright for next to nothing, then that's what it ends up being worth.

(BTW: as idlemind tells us, the 'doctrine of laches' is what I was looking for. I remembered my brother - who actually is a lawyer (unlike me, who just talks out of his ass) - mentioning it in the context of a similar discussion once. I just couldn't remember the proper term. So thanks to idlemind.)

Isn't there a company out there where the entire business plan is to purchase defunct companines and or old patents for the express purpose of owning everything and suing everyone? I am thinking Paul Allen was behind it.

Interesting stuff, Kevin. Thanks for the links. Patent abuse helps support my contention that the ultimate form of capitalism is piracy.

A large part of the solution would be to raise the bar on obviousness. The notorious Y2K window patent was indeed invalid as prior art, but also not something of sufficient novelty that it deserved the reward of patent protection in the first place. If hundreds of ordinary application programmers, myself included, scribble it out on the back of the dump, there's nothing special about the guy who did it first.

"nearly" pathological?

Patents are evil. It didn't use to be that way but today it is, especially in the software industry.

Companies try to get patents with anything because a/ the patent system allows it and b/ because it brings value to the company and leverage against competition. It is NOT what the patent system was designed for. A profound reform is badly needed.

As Kevin notes, his examples are about software patents, which are particularly problematic. There are breakdowns in every stage of the game. The patent office doesn't have the expertise to evaluate obviousness and other factors on its own; some overly broad patents that have been granted are stifling innovation (this, from my own experience); it can be very hard to tell whether a given patent is being infringed or not; only the really big boys are equipped to challenge or defend patents in the courts.

I don't know what the solution should be, but there's a good argument to be made that the current system is worse than if software patents were not allowed at all.

I no longer believe in intellectual property. Once it became a venue for abuse by those in power, it became, in my mind, as illegitimate as a chain letter scheme.

What is even more irrating is that the MP3 format was funded by tax payers, European Union taxpayers. MP3 was funded under the Eureka programme. However, it is large companies that are benefitng at the expense of more innovative business (as well as large bloated Microsoft) and ultiamtley ordinary citizens!

"A large part of the solution would be to raise the bar on obviousness."

But how do you do that? Obvious to a layman? Obvious to an expert? If you go to experts in the field, then the bar can be really high.

Take a look at the LZW compression patent, which was what caused the problem in the GIF case. This is Welch's improvement (1984) to the originally algorithm of Lempel-Ziv (1978). Both were patented, as is discussed on the Wikipedia entry for LZW

While most people agree that LZ deserved a patent, I know many computer science people who thought LZW is obvious and should not be. They claim that LZW is simply what you would get if you assigned the LZ paper (which is a theory paper with no code implementation) as a homework problem to a smart undergraduate.

I seem to recall that a few years back some schmuck noticed that the nozzles on gas pumps didn't have a separate patent number from the pump as a whole.
He went to an abandoned gas station, cut off a nozzle, patented it, sued all the oil companies, and made millions.
Thanks for the hike in gas prices, Jerk.

To Robert Earle on February 24, 2007 at 12:20 AM

So my question(s) would be: is there a similar concept in patent law?

Yes. It's called laches. Do a google search for a detailed explanation, but basically it's as follows. After a patent issues, if a patent owner knowingly sits on his rights waiting for an infringer to mature for a sufficient period of time (generally, six years, which conforms to the statute of limitations on patent damages) before notifying an infringer of the infringement, the patent owner is deemed to have given up his rights in regards that infringer.

how long does a patent-holder have to 'react' when they become aware of an infringement on their patent?

Generally considered to be six years (see above), but can be shorter.

hasn't Alcatel-Lucent long since passed the deadline?

It depends on when the patent issued, not when the application was filed. I don't know the details of the case, but I suspect what happened is that the patent application was originally filed some 20 years ago, that the original patent issued several years thereafter, but the patent nowner had threads of the application living in the US Patent Office, through procedural maneuvers referred to as "continuations" and "divisionals" until recently, and finally figured that they could fashion claims (which defines the metes and bounds of the coverage of the patent) to cover MP3 technology. From Kevin's post, it appears that the infringement damages cover a time period starting in 2003 and ending in 2005, so it's probable that the patent didn't issue until 2003, and that the patent actually expired in 2005 (which is why I believe it was probably filed sometime in 1985).

The amount of the damages is ridiculous, of course, and will probably be substantially reduced.

Compuserve wasn't able to shut down the .gif file; Alcatel won't be able to rob everyone of their beloved .mp3s.

Patents, when abused, distort the free market. Pharmaceutical pricing is a prime example. Some new drugs are priced/year higher than the average and median incomes in our country--these are drugs developed often with tax funded research in most cases. Over a lifetime the medication's, drugs alone, cost will exceed the cost of homes and become the most expensive item a person will buy.

Ironically, the efficacy of many of these expensive items have yet to be proven.

We need to revisit patent law and the culture of for-profit medicine. We're paying a terrible price.

"Obvious to a layman? Obvious to an expert? If you go to experts in the field, then the bar can be really high."

Obvious to the competent practitioner. The patent should be for the breakthrough, not tweaks and varying implementations. Your LZ/LZW example is on point.

The patent statute standard for obviousness is "obvious to one of ordinary skill in the art." But it is oftentimes forgotten that obviousness is determined for one of ordinary skill in the art at the time the original patent application is filed, not when the patent issues.

So what does this mean? Does this give Alcatel/Lucent authority to pursue people who download MP3 files "illegally"? Would it be economical for them to do that?

So what does this mean? Does this give Alcatel/Lucent authority to pursue people who download MP3 files "illegally"? Would it be economical for them to do that?

Assuming it stands up on appeal, it means that Alcatel/Lucent can sue companies who integrate .mp3 capabilities with their products, which would increase the end price to us.

In practice, what will happen is that many manufacturers will play ball, and other will not, while those of us who already have .mp3 capabilities will go on happily using them with the products we already own. When it comes time for us to get new software, the manufacturers who didn't play ball will have found new ways to encode music files that avoid royalties to Alcatel/Lucent.

As I mentioned above, this isn't the first time a company tried to force rents on a commodity format (Compuserve did it with the .gif file). Actually, the outcome has been positive, because now everybody was forced to start looking for better solutions, like the vastly superior .png format.

From an end user's perspective, this announcement is no big deal. From an IP theorist's perspective, this is yet another indication that the system needs an overhaul.

From an end user's perspective, this announcement is no big deal. From an IP theorist's perspective, this is yet another indication that the system needs an overhaul.

I know enough about computers, files and software to get me in trouble and ask stupid questions. I'm sure people who write programs (shareware, Linux, GNU files, etc.)like you said are talented enough to get around this stuff. I'm certainly not smart enough to keep up with it. I'll just have to keep my ears and eyes open.

If you give away your copyright for next to nothing, then that's what it ends up being worth.

Which is exactly my point, that the companies doing the suing are doing so in order to protect the value of their corp assets, not because the evil gvmt requires them to.

IOW, the ubiquitous excuse, "We are required by TM law to defend against any and every instance of TM infringement," is BS.

1. There have been changes in the patent system that make it harder to do submarine patenting--mainly, it's now 20 years from the date of filing, not 17 years from the date of issue. The other change has been the publication of patent applications 18 months after filing (unless you file for an exception and don't try to go for any patents abroad.) Of course, in technical areas like software where you can get rapid adoption, this won't help as much as in other areas.

2. The US patent office has been swamped with applications, with now more than a 4-year backlog in some areas. Our system works more or less on "let it through unless it's blatantly out-of-bounds", then let everything get fought out in the law courts. This is mainly because the USPTO doesn't want to have to get involved in the hassle of tracking down whether there's a Ph.D. thesis from the University of Milan (the stereotypical case) that negates everything (102(b)) If it's worth money to you to break someone's patent, YOU find it....

3. Similarly, the decision whether something is an "overbroad" patent usually occurs during litigation. Since the USPTO has no idea whether a patent will turn into being consider overbroad, this isn't as silly as it first sounds. 99% of patents are pretty useless.

4. Software and business methods can now be patented--a problem, IMO. (I think the whole mess with copyright also has to be torn down and redone in any case.)

5. The 20-year patent regime was put into place to harmonize with other patent regimes internationally. Go complain to WIPO if you feel it's too long.

6. Yes, and I am a patent agent.

Lucent doesn't have much left in their quiver so scrounging for scraps is about all they can do. They'll blow that 1.5 billion just like the hundreds of billions they've blown in the past decade with nothing of substance to show for it.

It’s an awful standard if you care about fidelity and it’s a large step backward from the format used by standard CDs which has been around since the early eighties. With the all the advances in digital capability that have occurred since CDs were introduced you’d think we’d have better choices by now (Posted by: antiphone)

1. Of course it's a step backward. Duh. That's intentional. The whole purpose is to sacrifice some quality to get compression. (CDs are uncompressed.)
2. "you’d think we’d have better choices by now". We do. Many choices: MPEG-2 Audio, AC3 (Dolby), AAC, Ogg, RealAudio, and others. All in widespread use. The main advantages of MP3:
-- most widely used/supported
-- It doesn't have digital rights management built in.
-- It has been cloned / re-invented several times.

In a nutshell:

Software are ideas. Ideas aren't patentable, sayeth the law. But because patent protection is commercially more powerful than copyright or trade secret, people tried to patent software anyway. Some got away with it because the patent office doesn't have the time or depth to understand and weed out, much less argue about, these cases. Others noticed. Now everybody's routinely doing it, swamping the patent office even more. The patent office has given up, routinely granting these patents and leaving it to the courts to sort it out.

Congress could fix it, but would incur the wrath of big contributors.

Wow. Can't believe we've gone this far on the subject of dodgy patents without someone mentioning George Selden.

There are so many bad elements in Kevin's argument that I scarcely know where to begin.

Look, it's absurd to believe that a concept such as an MP3 player would be fully covered in just one patent -- the obvious assumption of the claim that somehow Fraunhofer IIS should own all the patents.

In fact, the situation appears to be that the BASIC ideas behind MP3 were what were patented in the Bell Labs patent. Now, does ANYBODY seriously believe that ideas developed at Bell Labs are, on their face, unworthy of any intellectual property protection, and that companies such as Microsoft, which has never introduced a major innnovation in its entire existence, should be the entity that fully profits from those ideas -- ideas that it didn't develop itself?

Look, anyone who cries over MICROSOFT losing some money over copying someone else's ideas should simply have their head examined. Microsoft has made its fortune by taking over, typically without a penny of compensation, ideas that were generated somewhere else. The $1.5B jusdgment is just the smallest pittance compared to the cash hoard of nearly $30B it has ready on hand -- every last penny of which derived from someone else's ideas. And that cash hoard itself pales by comparison to the entirety of revenue that Microsoft has generated from other people's ideas.

As for the claim that the patents were "submarine" -- well, while I haven't looked at the history of the 2006 patent, I certainly know that the earlier patent was awarded in 1993. I simply ask, how can anyone pretend that a patent granted and published in 1993, by such a prominent company as Lucent (with Bell Labs as its component) could be a "submarine" patent? If they didn'tknow about it, it was because they deliberately did NOT want to know about it, right?

And who's the winner if all the hysteria over this type of patent gets its way, and such patents are eliminated?

Why, none other than Microsoft itself, which can take anybody's ideas at any time, knowing perfectly well that there can be no potential downside at all. In fact, it will enable it even more to simply run small companies out of business, rather than paying them any money to get the IP behind that small company's technology.

You get rid of technology patents, and you remove what small protection there is for generating new ideas. You got nothing left. Nothing is easier to do than to copy ideas in software. If you're Microsoft, you can do so at your leisure, letting small companies generate the new ideas, test them out, build a market, and then swoop in and steal that very market away from them, simply by hiring a team of programmers to see how the software functions, and copying every attractive feature.

It's how Microsoft made its fortune.

Why would someone on the left be eager to enable to this, rather than seeing it as enabling the most predatory sort of corporate culture?

Oh, and BTW, the entire issue of "submarine" patents is now a red herring (even though the bullshit brigade against patents pretends otherwise): as of 1995 (as I recollect) all patents are published within 18 months of the application. That is, they are fully available for public viewing. If you don't know about a patent, it's only because you don't want to know about it -- most obviously for a company like Microsoft, which clearly has the resources to find all relevant patents.

Back in the 90s when I heard that Amazon.com sought a patent for the shopping cart icon (the actual shopping cart was off patent), I knew the industry and the P&TO was going crazy. Think about it. A patent was sought for an actual physical invention that became and iconic American symbol. What exactly was novel and non-obvious about the shopping cart icon.
However, the shopping card icon should have been disqualified based on the conditions below:
A person shall be entitled to a patent unless—
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or

Unfortunately, the patent system has become a nightmare that does almost as much to suppress invention as to promote it. Another example of the way special interests use the law to invent property rights for themselves at the expense of everybody else.

I would be even more adamant on the subject if I didn't still own some of that crappy Alcatel-Lucent stock that we should have unloaded before the crash.

Dan Bricklin, co-inventor of the spreadsheet, wrote in 1995:

During most of the history of programming, when almost all of the basic techniques we use today were developed (from the 1940's to 1981) computer programs were thought, in the United States, to be uncovered by patents...

With the law interpreted one way for so long, and an entire industry structuring itself around that interpretation, allowing the patenting and enforcement of patents of pure software this late in the life of the art is an unusual hardship for a thriving industry that is crucial to the world's economy. While it may theoretically have been appropriate to have pure software patents, the opportunity has passed. Imagine if the aircraft or radio industries had gone 50 years without patents, and then suddenly patents were allowed, with little prior history kept in legal records. Chaos would come about. We do not need that in the software industry.

But that is what we've got.

frankly0 is so bamboozled. S/He says "ideas" about a dozen times, thus proving my point. I repeat, ideas are not supposed to be patentable. That is precisely the problem. Most of the stuff being patented are nothing more than ideas. With today's practices, you could patent long division if you were first to use it.

S/He suggests there'd be no incentive to create software without patent protection. The open software movement proves otherwise. And even if you take away patent protection, you'd still have copyright protection.

Bricklin's argument makes exactly zero sense.

How on earth does it NOT make sense to introduce patents into software later if it did so at an earlier time?

The end product of a software industry WITHOUT patents was that essentially ALL the ideas and ALL the profits wound up in the hands of a completely derivative player like Microsoft. Please tell me how this is not about the best possible argument that the software industry NEEDED and NEEDS something akin to patents to protect the genuine innovators?

The anti-patent crew can NEVER give any kind of account of how innovators in software can be protected against the predations of Microsoft. They can only pretend, like Kevin, that somehow it's not important.

Kevin wants us to ignore that it's Microsoft who is being penalized for ripping off someone else's idea. But isn't it exactly Microsoft which SHOULD be so penalized? Isn't it poetic, karmic, moral, and legal justice that it's Microsoft against whom this enormous judgment has been imposed?

bob,

You have no notion what you're talking about.

Patents DO protect certain kinds of practical ideas, at least in the colloquial sense of the term; they always have. It's simply the most childish semantical game to assert otherwise -- but childish semantical games are the staple sort of argument one gets out of the anti-patent crowd.

The open software movement is, with rare exception, a movement whose true goal is copying of other people's ideas. How original was Linux (whose name is even partially copies Unix)? Or any of Stallman's projects? Virtually everything they have ever done has been copying something long done before in the commercial world. How surprising that they don't want their wholesale copying in any way impeded by patents.

And what good has copyright protection done the vast number of firms whose ideas Microsoft has copied at will over the past two decades and more?

You can never be honest about that obvious fact.

Isn't it poetic, karmic, moral, and legal justice that it's Microsoft against whom this enormous judgment has been imposed?

I suspect that that is exactly what the jurors were thinking.

As others have said above, too many obvious things are patented today -- things that any competent engineer would "discover" as a matter of course if he/she had to work on a project that required them. Those few truly ingenious discoveries that could not be reasonably expected to be made in the normal course of engineering design -- those should be patentable. But neither the USPTO nor the courts (and especially the juries) are qualified to judge which discoveries fall in that category. It would have to be done by professional organizations -- something like the peer review we have in science -- and that's not in the cards.

FranklyO - hits the mark.
JS - the patent system has NEVER been intended to over only breakthroughs. One of the many problems with the anti-software patent crowd is that they don't let gross ignorance slow them down. Do some research by looking at household items - cereal boxes, tools, medicine bottles, ...

The anti-patentistas are liberal variants of the republican morons who think that "tort reform" will reduce insurance costs.

As a multiple patent holder [example 6,260,241], I found this discussion interesting. My product is in production and there is nothing remotely like it on the market. I do not believe I would have started this business with out it [ www.splicingnut.com ], however, as stated above, I do believe most patents never make money.

Kevin has reversed himself on just about everything without ever admitting error, war...press fairness...Jon Alter...that's conventional wisdom for you...I'd look for a repeat on this subject.

citizen k, you are stating what current patent practice is. We know that. The argument is that it should be different from what it is. It's not a matter of ignorance, it's a matter of opinion, and not everyone agrees with you.

In any case, there is a requirement for "non-obviousness" in patents. How that is applied is what is being debated (here and elsewhere).

I wonder how fast software technology would have developed if someone had patented "programming", "database", "compiler", "spreadsheet", etc.

S. Brenan, good for you. I don't know what your invention is, so can't comment on it. But I can tell you that I am aware of many cases where patents favor large businesses against small -- and the effect is precisely the opposite: the little guy is prevented (via intimidation) from starting a business. It has even been alleged that large companies sometimes prefer to pay frivolous patent royalties than fight them because this makes it harder for smaller ones to compete.

Patents in mature industries make a lot more sense -- because it is likely that something that has not already been invented is not obvious. But in a new technology which is made possible by a few fundamental breakthroughs, patenting everything that is done for the first time (even completely obvious things) does not accomplish the objective that patents are supposed to achieve -- rather, the opposite.

One reason to love George Bush:

Remember when conservatism was on the march? Seemed like the cons had all the new ideas, got the most adoring press, had the cleverest columnists, and all those southern Democrats were jumping ship to the other side? Now the whole thing is reversed.

Feels sugood!

For this we owe a heavy debt of gratitude to the big W. The con core doesn't get how he's sold them down the river yet. If they ever do, watch out George!

The case against software patents made by Donald Knuth. Excerpt:

When I think of the computer programs I require daily to get my own work done, I cannot help but realize that none of them would exist today if software patents had been prevalent in the 1960s and 1970s. Changing the rules now will have the effect of freezing progress at essentially its current level. If present trends continue, the only recourse available to the majority of America's brilliant software developers will be to give up software or to emigrate. The U.S.A. will soon lose its dominant position.

My Belief of Why Software Patents Should be Invalad: When I sit down and WRITE code, I am expressing my Constitutional right to FREEDOM OF SPEECH. In this case, the speech is in a language a computer can understand and interpret. No different from a poem, story or article you (humans) can understand.

Example: A 'How To' style to book... Can anyone patent 'publishing series of intructions used to complete a task'? NO, it would violate the publishers FREEDOM OF SPEECH and EXPRESSION. And that's exactly what programmers do, they write code using their brains in a language the computer unerstands that tells the computer 'how to' complete a task. I see no difference between the two other than the language used.

Most software patent holders act as if they invented the underlying code that runs a computer! 99% of them wouldn't know how to make a transistor let alone a microchip, yet they 'own' the very thing those chips were designed to do?? Doesn't make sense to me.

BOTTOM LINE: Computers were intended by the manufacturers to benefit society as a whole, but select individuals are benefitting the most through greed and corruption. I'm 100% for copyrighting a working model, but when people claim ownership to vague ideas (especially if they do not implement the said ideas) they are stepping over the line and violating all of our rights to expression under the Constitution that the courts claim to uphold.

The open software movement is, with rare exception, a movement whose true goal is copying of other people's ideas. How original was Linux (whose name is even partially copies Unix)?

Actually, it was Minix.

The design principles Tanenbaum applied to MINIX famously influenced the design decisions Linus Torvalds applied in the creation of the Linux kernel. Torvalds used and appreciated MINIX, but his design deviated from the MINIX architecture in significant ways, most notably by employing a monolithic kernel instead of a microkernel. This was famously disapproved by Tanenbaum in the Tanenbaum-Torvalds debate. Recently, Tanenbaum explained again his rationale for using a microkernel in May 2006. Early Linux kernel development was done on a MINIX host system, which led to Linux inheriting various features from MINIX, such as the MINIX disk filesystem format.

JS: Most denounciations of "software patents" are rooted in theories like "ideas can't be patented" or, "until recently patents were only for breakthoughs" which are just false. "Obviousness" is not at all an obvious concept - the ideas behind the AC motor, to take an example of one of the most important inventions of the industrial age are blindingly obvious once somone like Tesla spends 10 years figuring them out.

One of the biggest impediments to innovation in many sectors is the ease with which powerful mega corporations can absorb innovations and appropriate the fruits. This happens in music and design and software routinely. That so many "progressives" champion the reduction of artists and inventors to serfs of marketing organizations is testimony to the deceptive power of the anti-ip marketing argument. There is a reason why the Free Software Foundation gets donations from IBM and has exactly the opposite opinion on IP reform as do the independent inventors groups or musicians organizations etc.

Stuart Brown: "BOTTOM LINE: Computers were intended by the manufacturers to benefit society as a whole, but select individuals are benefitting the most through greed and corruption."

Do you really believe that IBM was created to "benefit society as a whole"? That woulda horrified the stockholders and amazed all the poor Federal lawyers who sued them for monopoly practices.

This happens in music and design and software routinely.

I'm not sure I follow. How is the IP scene similar in these three areas? (And specifically wrt patents?)

The reason most software designers object to current patent policies and practice is that so many patents are given for things that are not only obvious or trivial -- but, also, manifestly not novel. Fighting a large corporation on prior art is not within the means of a small business -- or an individual. Can you point to any software industry groups that support current patent practice?

And can you defend any of the following patents:

1. Navigating hyperlinks on a web page using the TAB key.
"A user may discover and navigate among hyperlinks through the use of a keyboard."

2. One-click shopping.
"an online system allowing customers to enter their credit card number and address information just once so that on follow up visits to the website all it takes is a single mouse-click to make a purchase from their website."

3. Listening to music samples on a website.
"A method for enabling a remote user to preview a portion of a pre-recorded music product from a network web site"

4. Web pages with frames.
"SBC Communications Inc is enforcing a patent it owns that, it claims, covers the use of frame-like user interfaces in web sites... . If your web site uses a frames or a persistent user interface, then you could be in infringement.."

5. Hyperlink anchors in web documents.
"process of using a string to define an external anchor for an HTML document. The string is defined in the link to the HTML document, and the web browser, on loading the document defined by the link, will scroll to the first occurrence of the text string within the document"

[Unfortunately WM does not allow multiple hyperlinks in a single comment - perhaps someone has patented that?]

Frivolous patents do not occur only in software, though that area stands out because it has seen so much development recently. Here is one non-software patent you may want to be aware of, especially if you have children:

A method of swinging on a swing (sidewise).
"A method of swing[ing] on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other."

This patent (6,368,227) must be an attempt to ridicule the USPTO, as it ends with this:

"The user may even choose to produce a Tarzan-type yell while swinging in the manner described, which more accurately replicates swinging on vines in a dense jungle forest. Actual jungle forestry is not required."

This seems to have sailed through the USPTO.

JS: Of course big companies abuse the patent system. Of course patents for non-inventions are granted. Everyone knows that. What we argue about is what to do. The anti-patentistas preferred suggestion is for inventors and artists to become wage employees of big companies - because without patent or other IP protection, there is no way for a small company or individual to compete with a big one that simply waits for someone else to do the work.

If you look at why e.g. Prince sued his recording label or the classic case of Willy Dixon suing Led Zepplin, you will see examples of how IP protection is critical to artists. This is why recording artists were in such uproar about the sick effort to redefine artistic recordings as works for hire.

If you look at Microsoft - the classic example, you will see a series of innovations by other people that turned into vast profit centers for Msoft. I don't fault Microsoft for playing the game that way, but if Dan Bricklin had patented the spreadsheet innovations instead of letting Msoft and Lotus drive him out of the market, we might see new and better ideas by now.

Just to follow - there are obvious methods for reducing patent abuse by big companies. For example, if you simply doubled the charge for each successive patent application filed (or ownership changed) during each calendar year by any company, you'd fix 90% of the problem. It's amazing that we don't see any suggestions like this from the anti-patentista crowd and only see suggestions that will pad the bottom line of multinationals eager to reduce their R&D budgets at the expense of inventors.

citizen k, you are conflating all IP issues into one, which I do not think is valid. Copyright, trade secrets, trademarks, and patents are vastly different from each other.

Most of the discussion here has been on patents, and specifically on software patents. In software (unlike in music, perhaps) there seems to exist a consensus that current patent practices favor the large and the unprincipled. Dan Bricklin himself seems to disagree with your argument that, had he gotten a patent, further innovation would have been served better.

Also: there are many small software businesses around, and very few of them, as far as I know, rely on patents. It's generally the other way around -- big companies using spurious patents to keep little guys from going into business.

It's generally the other way around -- big companies using spurious patents to keep little guys from going into business.

Examples, please?

This is just typical nonsense from the anti-patent crowd.

Smart, small, INNOVATIVE companies will have themselves patents with which they can defend themselves. That, indeed, is the entire purpose of patents: you come up with an innovative idea, you get a patent, and you've got protection. Even if other companies have patents that impinge on your space, you have to be part of the market going forth, because you have your own hold on that market.

Dan Bricklin himself seems to disagree with your argument that, had he gotten a patent, further innovation would have been served better.

Dan Bricklin's example is one of the most pathetic ones in the history of the software industry.

He had a great idea. It was copied wholesale by others, and all the money was really made in the end by the most derivative player of all: Microsoft.

God only knows how much of a fool such a man might feel himself to be. If he defends what happened to him as a great thing, why should every other inventor feel that he or she should join him in his abject self-humiliation?

Bricklin's complaint is that the change in patent law was too late for visicalc. Lack of patent protection meant that the current funder of the EFF and Gates made most of the money and infact built a monopoly that drove the innovater out of business. Although this story violates the anti-patent marketing line, it has the advantage of beibg true.

It's not only Dan Bricklin. I also quoted from Donald Knuth, who also said "If software patents had been commonplace in 1980, I would not have been able to create TEX." And there are many other examples.

That software patents are primarily a weapon of large corporations to fight the small was not lost on Bill Gates, who said in an internal Microsoft memo:

The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.

It's rather obvious, isn't. If every single software method were patented and required royalties, the barriers to entry for small software developers would be huge.

It's not clear Bricklin would have made more money if he had patented VisiCalc. Lotus bought VisiCalc from Bricklin's company -- and had they had a patent, it would have been transferred to Lotus as well.

Here is more from Bricklin:

Experienced developers remember many of the techniques and inventions used over the last 50 years. They would never think to patent such things. Newcomers, without that experience, often think that they are superior to their predecessors, and think their discoveries are new, when they often are not... The current climate in the USA encourages them to file for patents. The lack of history of the art, coupled with the difficulty of categorizing algorithms that have multiple uses, often makes it impossible to check for real originality. This puts experienced practitioners at a disadvantage, since they must not patent what they feel is obvious or not novel. Given that there is no lack of incentive to develop software, we do not need to make changes that hurt the people who created the industry. (Quite the contrary, there is great incentive knowing that some of the richest people in a country like the United States made their money from software without the protection of patents.)

This is a rather thoughtful philosophical opposition to software patents. (Though he now admits that, if everyone is getting software patents these days, all developers should play this new game).

1. "Submarine" patents, invoked years after a contested invention has hit the market? Check

Typical of the ignorance of tyros calling for patent reform.

If a product is on sale for more than a year prior to applying for a patent, this is a bar to patenting.
-----------------------------------------
2. Claiming ownership of a media format most people use all the time? Check

Like writers don't claim ownership of writing that everybody reads. If everybody reads the New York Times or a good novel, then they should get it for free and be able to distribute and use it as they please.

and so forth.

The problems in the patent system are limited to software patents. Sorry, but software is not invention and should be in a separate class of intellectual property. Software patents were forced on the Patent Office by the courts, so we need court reform, not patent reform

A plaintiff that's failed to commercialize its own alleged invention? Check

A writer who writes a novel and fails to get it published? Check.
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Extortionate royalty demands? Check

A writer getting big money from a best seller and a movie contract? Check.

A plaintiff that's failed to commercialize its own alleged invention? Check
A writer who writes a novel and fails to get it published? Check.

Not a fair analogy. A closer one would be a writer who allows his/her book to circulate for free on the internet for a long time, then tries to charge retroactively those who have read it.

In the MP3 case (as with GIF earlier), you can make the argument that, had the industry known that there were IP claims on the format, they would have chosen or created a different one. Keeping silent about your claim until the industry has adopted a technology and then making large retroactive royalty demands is not fair business, and should not be countenanced by the courts.

JS: You are insisting on remaining ignorant. Lotus had already beaten Visicalc when it bought the remnants. Knuth knows nothing about the software business - listen to any talk of his, he boasts about not knowing or caring about trade.

The problems in the patent system are limited to software patents. Sorry, but software is not invention and should be in a separate class of intellectual property.

So patenting of life forms is not problematic? Patenting of discovered, but not understood genomes created by evolution is not problematic?

And the classic question asked and never answered here is for a precise explanation of why a invention embodied in software that is run on a processor should not be patentable while an invention embodied in software that is used to generate a processor or a chemical or a machine should be patentable.

the way that standards are established these days is problematc - instead of stakeholders working together to make open workable stadards, it's a race for each side to get heavy penetration (flv takes the lead!) and pass licensing fees on to your competitors.

given numerous tehcnologies we could use to serve congressional footage, we chose to opt out of the race by choosing ogg/theora for use in metavid. metavid theora is an open source & patent free (sort of, On2 has given all of humanity open use of its VP3 codec patents, which theora is based on - it's as close as we'll get) video codec, and is essentially the only non-proprietary solution out there.

Aphid: Standards have always been established this way. Capitalism is not nice game.

If the first person who ever created a compiler, a database, a word processor, or any software program, had kept exclusive rights to that technology, we would be twenty years behind now. Lotus was a much broader program than VisiCalc -- and Kapor offered to sell it to VisiCorp before he went into business himself -- but VisiCorp refused because it did not consider the product worthwhile.

Would the all-knowing citizen k prefer patent holders to have had a lock on every software concept? There is a patent application out now for the "IsNot" logical operator. What would software development have been like if you had to pay royalties to use "if", "while", "new", and every other programming construct? Not to mention filesystems, sorting, computer graphics, hyperlinks.

So Knuth, Brickiln, and everyone else who disagrees with citizen k are all ignorant. Somehow, innovation would have been better served if every developer had had to pay royalties on every software concept used in software development. Yes, obviously, that would have made it easier for individuals (like Bricklin himself) to develop new products.

citizen k discounts Bricklin's and Knuth's opinions on software patents. No doubt he will also discount these:

Oracle Corporation:
Oracle Corporation opposes the patentability of software... This is not appropriate for industries such as software development in which innovations occur rapidly, can be made without a substantial capital investment, and tend to be creative combinations of previously-known techniques.

Douglas Brotz ( Principal Scientist, Adobe, 1994):
I believe that software per se should not be allowed patent protection... Adobe has built its business by creating new markets with new software. We take this position because it is the best policy for maintaining a healthy software industry, where innovation can prosper.

Jim Warren,, Board of Directors, Autodesk (1994):
I am speaking for Autodesk, and also as a long-time industry observer and leader... to best promote the nation's progress, reward innovative algorithms, benefit investors, enhance the
economy, create and protect high-wage jobs, and permit continuing global leadership -- refute
software patents.

Tim Berners-Lee, Inventor of the web:
I mention patents in passing, but in fact they are a great stumbling block for Web development..

Bruce Schneier and Niels Ferguson, cryptographers (invented Blowfish, Twofish):
In our opinion, the cost of the current patent system for the IT industry far outweighs the advantages.

Vint Cerf, co-inventor of TCP/IP:
TCP-IP protocols were never patented... The openness of those protocols and their availability was key to their adoption and widespread use.

Those who think that only the open software crowd opposes the current software patent system in the US should look around. Many companies and people who make their living innovating in software feel the same way. Ironically, the strongest supporters of patents (like gates) are also among the least innovative.

JS: You are making a bizzare argument. Nobody is arguing that Saddam Hussien is a good guy or that the current patent system works well, but it does not follow that invading Iraq or making IP only favor big companies is a good idea.

Without the Page Rank Patent, Google would never have had time to grow - but with it, there are no shortage of alternative methods.

As for Vincent Cerf - of course those protocols were never patented; they were a US government research result.

You persist in not addressing the question of how small innovative companies are supposed to compete against large imitators without strong IP protection. The rational decision of larger companies is always to compare costs of re-implementing against costs of purchasing and to pick re-implementation if it is not vastly higher than purchasing. And note how many innovative software companies have come out of Europe in the last 50 years. The European system does not favor competitors to big companies. Interesting that software patents (a huge source of revenue to US companies) are so hated in Germany, where patents on pharmaceuticals ( a huge source of revenue to German companies) are not controversial.

ck, I am not initimately familiar with the details of Google but my understanding is that the original patent you referred to was granted to Stanford, and the research (done at Stanford) was supported with US funds -- so the govt has rights too. I don't know what deal Google has with Stanford. But I do know that page rank is one of many equivalent technologies, and is continuously being revised. Other search engines are using very similar technologies, though they are all continuously developing them.

Google grew quickly not because of any one patent, but for the same reason most innovative software companies have: high productivity, continuous innovation, awareness of user needs. And I think the real lesson here is that if, as your approach suggests, search engines that preceded Google (such as Altavista and Lycos) had locked out competitors through early patents on the search engine concept, then Google would not have been possible. (Google did not invent the search engine, yet they dominate the field). So I think the Google case is more an argument against, than for, software patents.

I understand that you come to this with idealistic and noble intentions -- to enable small companies and individuals to compete with giants. The point of the criticism of the software patent (as it has now developed) is that it has precisely the opposite effect. A number of the earlier quotations I posted make this point.

Finally: You started out your argument with a reference to music. I don't have the link, but I read somewhere an interesting analogy: software patents, by protecting methods, are analogous not to protecting music works -- but, rather, to protecting musical scales, chords, and instruments. I think that this is the point. Would young musicians be served if they had to start paying royalties before they wrote the first note?

JS:
Google grew quickly not because of any one patent, but for the same reason most innovative software companies have: high productivity, continuous innovation, awareness of user needs

If Yahoo and Microsoft had been able to reproduce Google's search technology instead of having to find alternative methods, they would have crushed it in infancy. The patents don't cover the concept of search, which would be bad, they cover inventions for doing search - which allows startups to come up with new and better methods and protect them from copying.

If you have greater financial clout, market reach, and sales power, then being second or third to the market is not a problem if you can duplicate the product. It's not a nice fact, but better products and customer service do not automatically lead to profits. "Nobody ever got fired for buying IBM products" is an ancient truism of the computer market. You seem to have an idealistic and unrealistic idea of how markets work.

You keep saying that the main effect of patents is to keep small companies out of the market, but this seems like pure conjecture. Do you have any evidence?

I'm showing you two cases: Visicalc where an innovative idea was copied by companies with better market clout who then crushed the innovater, and Google, where a patented innovation let a market innovator gain time to grow into a major company.

software patents, by protecting methods, are analogous not to protecting music works -- but, rather, to protecting musical scales, chords, and instruments. I think that this is the point. Would young musicians be served if they had to start paying royalties before they wrote the first note?

No, the two (methods and music) are completely different, and are treated as such. Methods of performing certain operations (part of the "useful arts") can be covered by patents. Music (which is not considered part of the "useful arts") is covered by copyright. The difference between a patent and a copyright is that an alleged infringer in a copyright case has to have actually known the prior work in order to be held to infringe, whereas an alleged infringer in a patent case does not have to be aware of the patent in order to be held to infringe.

A patent is a right, granted by government, to control one's invention or improvement in exchange for the government to publish details of the invention or improvement. It is the "exchange" portion that is usually ignored in discussion of patents. If, for example, Google wants to not have their methodologies published by the government, they are perfectly free to do so, but if someone else develops the same or similar methodologies and is more successful at marketing it, then Google would not be able to stop them (barring a trade secret issue, of course).

You seem to be saying that it's a good thing the concept of the search engine wasn't patented, but a bad thing the concept of the spreadsheet was similarly not patented. Why?

Google improved an existing technology, just as Lotus did. Neither Google nor Lotus would have been possible if the basic underlying technology (search angine / spreadsheet) had been patented.

As for evidence that software patents hurt innovation and make it hard for newcomers, read all of my previous posts and quotations. Especially the one from Bill Gates. But also from Oracle, Adobe, Autodesk -- all of which started as small companies and used ideas developed elsewhere, which they developed further. Or talk to just about any small software company.

If you want more evidence, use Google. You have ignored what I have already copy/pasted, so I guess it's futile to do more of it. But here is one more example from a USPTO hearing:

I'm speaking for the Software Entrepreneurs Forum today. I'm the President of that organization... SEF... is a ten_year_old nonprofit organization of over one thousand present and future software developers. Nearly all of them are located in the Silicon Valley.

Our members feel that the patent system favors large companies over small companies, and we feel that it's important that the patent system both in theory and in practice should not give big companies an advantage over small ones.

I don't know how much more explicit than this it can be made.

Music (which is not considered part of the "useful arts") is covered by copyright.

raj, that was my point. If you read the discussion from its beginning, the example of music was brought up by someone as being analogous to patents. I pointed out that copyright and patents should ne be conflated. I then mentioned someone else's point that musical works are not methods (therefore not subject to patents) -- and if you wanted an analogy, you would have to imagine patenting scales and cords, which of course is ridiculous. Of course musical works themselves are protected by copyright.

JS: Of course I agree with Ms. Caldwell that the patent system favors large companies. Where I disagree with you, is that your proposed "reform" would make it favor large companies even more.

your quotes are all self-serving - of course a large and prosperous company that has become dominant in its industry by copying work from other people will be against changes that might impede them in the future.

Here's another great example of a patent serving to improve the art - the RSA patent. Note that many alternative methods were developed, but the inventors were able to profit from their invention, encouraging others to enter the market and rewarding them for their work. Imagine what would have happened if Microsoft had just been able to copy RSA and impose it as the monopoly standard. Compare the level of competition in the patent filled cryptography domain (a lot) with the level of competition in the unpatented spreadsheet business (zero).

The plain fact is that both Microsoft and IBM were able to reach and hold stifling monopoly positions without the use of patents. This is something you refuse to address.

As for concepts - I don't believe they are patentable. But the methods used to implement a spreadsheet could have been patented, and then would be competitors would have had to think, you know, do research, instead of just recreating the product.

Wasn't one of the inventors on both of these patents hired away from Lucent by Microsoft? Doesn't the infringement have to do with a particluar way of encoding audo into an mp3 (or other low bit rate) stream, rather than with the mp3 algorithm itself? Isn't this IP already licensed to Apple for the AAC encoding used on all iPods?