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[oddtimeflux]

I've just finished watching "Patent Absurdity". I was actually afraid, as my main business (if you can call it that) is based on my ability to protect my innovations, some of which are software. This, in addition to the fact that I'm very persuadable and self criticizing about doing work that I believe in.

I was "disappointed" to find that the film lacked any strong enough argument against software patents. What's more, they use the term "patentable" as the root of all evil, as a clear scare tactic, when quoting court and circuit decisions. Like "big brother" type of threat, warning us that if "these types of things" are patentable, we (each and every one of us) will be subjected to legal actions.

I've expected (for some reason) there to be a balance between interviewers, yet most are people arguing against patent software, most of those acting on behalf of organization opposing software patents (e.g. Free Software Foundation, Software Freedom Law Center). What's more, those who are arguing FOR software patents are mainly the attorneys involved in the Bilski case, shown in public outside the courthouse, not given equal terms to present their case (the others are interviewed properly in their offices and such).

Still, when I think about it now, there's no way for this movie to be truly a case against software patents. It's a movie, and while it presents valid opinions (right or wrong as they might be), it is inherently superficial. The viewer, for example, is presented with a courts decision (just the verdict, not the details of the trail, of course) and the interviewer's opinion. There's no way to delve into the details to see if that opinion is properly based on what happened in the courtroom.

There's also a common misconception, I think, about the Bilski case, and this movie fails in it as well. Methods which are not bound to a machine or device should not be patented, and in fact cannot be under the patent law. Software, however, is a device performing a process, and it doesn't matter if that device is a computer or a rubber curing facility. The movie presents the former as software patents, and with that base the case against the latter.

The movie treats patents as blockades and creativity oppression tools. That might happen in some cases when some parties are involved. Yet the movie completely misses the arguments for patents supporting creativity and allowing parties to invest in innovating and developing, because of the protection provided to their inventions.

Also, by making a case against software patents, they present arguments which relate to ALL patents. Now, the interviewers and makers of this film need to decide what they are battling against, because they harness arguments that does have strong counter arguments already. For example, they state that a software developer has to check among thousands of patents she might be infringing on, and that there are "too many" software patents. But that is true for any type of patent, and to that there are clear answers.
It's funny to think that such arguments are valid for law in general. Law disrupts innovation. Period. If I want to build a store here, I cannot, because this property (land, for this example) belongs to someone else. I also cannot walk into a factory and take building blocks. I'll have to pay for them because they belong to someone else. So my attempt to innovate in the neighborhood is obstructed by the law. Should all law be revoked because of that? It's like the movie claims there are too many land owners, and no one nowadays can just walk around and build anywhere he wants. And that land should be free. Note that this analog is not entirely valid, as land is a physical commodity (when someone has it, no one else can have it... as opposed to software, which can be copied and used by anyone without hurting anyone else).

[oddtimeflux]

I think software patents are legitimate, but acquiring them might be a process that might need revision. If someone invented something new, he should be rewarded for it, be it a small entrepreneur wishing to make it big, or a large corporation wishing to make great profit. The problems these parties face when pursuing software patent grants are hard enough - there is very little chance for them to find their "invention" something that hasn't been done before, especially if it refers to a software, and the open source community, if they wish to "battle" these types of restrictions on their practice, should be getting busy making it easier for the patent office (and in fact for anyone involved, including the patentees) to locate prior art, and of course become more creative themselves and release their creations to the public domain. I'm all for open source, collaboration of development, etc. And de facto, this industry has made it extremely hard to acquire software patents anyway. Anyone who succeeds at patenting a software (lawfully and justfully) probably has made so because that software is truly novel, and with that awards the proper rights.

And so, some criticism is true, in my opinion at least, yet the solution is not to ban software patents but to improve the system. Patent law, just like any law, cannot be perfect, and it cannot treat everyone by their deserve justice. But it can strive to do so, and get close to doing that by being revised. It is clear, I hope, that some software patents should be granted, and that these types of patents should not be abolished altogether. That said, I do believe the system might be taken advantage of, and might require some reform in light of, well... the reality of the market. For example, patent trolls are not a desired phenomenon of the patent law, but that doesn't mean the patent law should be cancelled. One solution might be that a patentee must actually practice her invention for being allowed to sue others for infringement.

(I appologize for the length, and double post)

[Robert K S]

Agreed on every point, except for your proposed solution to patent trolls, but that's a topic for another thread.

The Beethoven hypothetical, of course, fails, not because of anything to do with 101 patentable subject matter, but on 102 and 103 grounds.  Those musical "innovations" wouldn't have been patentable because they'd been done before the time of classical music.  And what if they hadn't?  What if the crescendo was something that no one had ever heard before, that no one had ever been able to do before Beethoven, and a patent was issued on it?  Fantastic!  That patent now tells everyone how to accomplish a crescendo!  Now everyone knows how to do it!  After the patent term expires, everybody will be able to do it, for free!  And if the crescendo inventor, lucky guy, finds some way to commercialize this crazy new crescendo thing while the patent's still good, well, good for him, he deserves to be rewarded for his hard work.

5,973,252 is an example of a musical innovation that is both relatively recent and now remarkably widespread.  Conceptually, it is not exceptionally more sophisticated than some of the examples of musical "innovations" brought up at the end of the movie.  However, the fact that it is patented has not stifled musical innovation, nor even precluded a wide number of musical artists from making use of it.  No one finds himself having to produce music "around" Auto-Tune for fear of infringement.  And yet, in about another decade, everyone will be able to program free versions of the Auto-Tune plugin (or at least that part of it covered by this particular patent) for themselves, and should they choose to do so, they will even be taught exactly how by the patent disclosure document.  I think that's pretty nifty.

[oddtimeflux]

Robert - true. It seems like this movie just fails to understand what patents are. It deals only with their negative implications but not with what they are, and why they should be.

Your words about the Beethoven hypothetical, I find, are very true to business methods (and one should remember - all the restrictions of those being granted). Say someone invents a new method of trade that benefits third world countries, small interest groups, struggling individuals, global exchange, etc. If that method truly qualifies as a patentable invention (and so must follow the restrictions of such), that person deserves the reward. This is also true for someone inventing a new method of trade that benefits large banks. We cannot choose between good or bad inventions. We can only restrict them being granted unjustly.

As someone who constantly deals with patents, and is (I'd like to believe) a morally driven guy, I always find myself thinking about the justification for patents. I find, obviously, that there are downsides for sociaty (as with any law that restrict people from down what they want - it hurt these people, but it is sometimes necessary and even crucial), but the positive must certainly outweighs the negative.

I hope to become an example for why patents are good, overall. I try very hard to come up with, develop and promote inventions. I wouldn't have been able to do so if I didn't have some way to present with my investors a guarantee that what we develop and promote will not be "stolen". And so my small company can be successful ONLY with the existance of patents (and our innovative minds here).

So for me, this movie just proves the opposite, making me remember once again why patents, even software patents, are a good thing. I'd still like to read your opinions, support or criticism

[JimIvey]

I've been all over this topic in these forums and elsewhere (including a gentlemans' magazine's forum pages).  Carving out an exception for software is patently stupid for too many reasons to write here right now.  Hey!  A title for a book, perhaps.....  Or a movie!

I've been around software, software patents, and the open source community for years now (decades, actually).  Here's my gut-level sense of what's going on.  The open source community is paranoid of being sued for their software hobby -- many work on open source projects while in school or on evenings and weekends when they have day jobs. 

Open source licenses are chock full of uses of copyright to protect people who work on such projects from facing subsequent copyright liability.  At the core of this is the defense of independent creation, which is entirely inapplicable to patents.  There's no way to protect oneself from patent liability based upon doing one's own original work, or at least no solution has been found yet -- though some open source licenses have poison pills that vitiate the license if one attempts to assert certain patent rights (generally related to the subject matter of the licensed code).

So, there's this FUD campaign (Fear, Uncertainty, Doubt) and almost a holy war of sorts against software patents.  Of course, most of these same people rely on strong IP protections for proprietary projects of their day jobs or future employers, but they seem completely unaware of that.  Though, I have received client referrals through the EFF, so some are becoming more and more aware of the need to protect one's work.

Regards.

[MYK]

I'll have to track down that movie.  Hadn't even heard of it before.  Thanks.

Wrote a long rant about the Myriad decision elsewhere.  It's astonishing to me how many people think that research just falls out of the sky, and that everything should be given to them free.  The professor for my basic patent law class talked, on the first day, about some complicated biotech patent he had been involved with, and then about how an inventor of a cat toy called him out of the blue to get an application written for that.  His point was that, in the absence of a reward for doing difficult, expensive research, we'd get a lot more cat toys and a lot fewer cancer treatments.

[artchain]

I was on the patent committee for a major software company, serving as a technical contributor (as a director of engineering).

The role of the committee was two-fold:  to evaluate the patent potential of technologies developed by the company, and to evaluate our exposure regarding competitor's patents.

Over the course of two year, the majority of the external patents we reviewed were, in my opinion, badly flawed.  They were:

* rehashings of published prior art or existing products

* incorrectly stated (e.g. the processes as described did not / could not work)

* do not provide sufficient information to enable the reader to implement the patented process

While I support the idea of software patents, I believe the patent office is currently incapable of adequately evaluating software patent applications, resulting in a system that simple increases industry costs in fighting invalid patents.

[JimIvey]

Over the course of two year, the majority of the external patents we reviewed were, in my opinion, badly flawed.  They were:

* rehashings of published prior art or existing products

* incorrectly stated (e.g. the processes as described did not / could not work)

* do not provide sufficient information to enable the reader to implement the patented process

While I support the idea of software patents, I believe the patent office is currently incapable of adequately evaluating software patent applications, resulting in a system that simple increases industry costs in fighting invalid patents.

Well, I have a few thoughts on that....

First, those things happen in all technologies.  It's a human-implemented process and accordingly cannot escape serious fallibility.  In my transition from software developer to lawyer, that was my biggest frustration -- the inefficiencies and imprecision of the processing of human interaction with human-implemented, human-based systems.

Second, there seems to have been a reluctance of the Patent Office to recognize computer software as a legitimate technology and therefore a resistance to accommodating software in terms of hiring of examiners and staffing of technology centers.  It's been a problem.

Third, and most importantly, there is this perception that any patent practitioner (attorney or agent) can write and prosecute software applications.  I've heard very experienced practitioners here in the Silicon Valley assert that "any patent attorney in The Valley can write software patents."  In one seminar on advanced claim drafting, such as assertion was made while discussing an example of a simple software patent.  In the claims, "primary storage" and "secondary storage" were used without any awareness that they were terms of art -- specifically meaning, respectively, volatile storage such as system memory (RAM) and persistent storage such as hard disks.  Whether that unfortunate choice of words would be a fatal flaw isn't immediately clear, it was a well-timed example of the hidden difficulties of using practitioners unfamiliar with even just the basics of the underlying technology.

I interviewed at a firm once that wanted a EE for hardware applications.  I asked if they had any software work and the told me that they had a chemist working on that and they didn't want to take the software work away from him.  I've had inhouse counsel try to assign me hardware work based in San Jose (50 mi. away) when they had a EE from San Jose working on software cases very near to my office.  I pushed hard to have the technologies properly assigned and, after more pushing than it should have required, all was set right.

Let's just say that patents are not the only place where you sometimes wonder what the heck someone was thinking.

Regards.

[bleedingpen]

Third, and most importantly, there is this perception that any patent practitioner (attorney or agent) can write and prosecute software applications.  I've heard very experienced practitioners here in the Silicon Valley assert that "any patent attorney in The Valley can write software patents."  In one seminar on advanced claim drafting, such as assertion was made while discussing an example of a simple software patent.  In the claims, "primary storage" and "secondary storage" were used without any awareness that they were terms of art -- specifically meaning, respectively, volatile storage such as system memory (RAM) and persistent storage such as hard disks.  Whether that unfortunate choice of words would be a fatal flaw isn't immediately clear, it was a well-timed example of the hidden difficulties of using practitioners unfamiliar with even just the basics of the underlying technology.

Nothing burns me quite like a 63 year old practitioner with a BA in Textiles from 1965 that thinks C++ is the third letter of the alphabet boasting to clients that he can write software applications with the best of them. 

[DogDayPM 9er9er9er]

Nothing burns me quite like a 63 year old practitioner with a BA in Textiles from 1965 that thinks C++ is the third letter of the alphabet boasting to clients that he can write software applications with the best of them. 

Well, DUH, everyone knows "C++" stands for, "any of C, D or E".

Right? 

[bartmans]

I thought it was a carbon ion with two free positions 

[JimIvey]

I got a C++ in CompSci undergrad.  I was this close to a B--.  ;-)

Regards.