52 replies to this topic

[Alpha_ProgDes]

http://www.infoworld...eu-court-192231

This ruling seems like a slippery slope, but I don't know where. In one hand, you keep people from patenting the for-loop. But also, it could prevent some from patenting algorithms. Reverse-engineering seems to be, at first glance, legal. At least in the EU. I'm sure our European brethren have caught wind of this, if not been following it. What do you think of this ruling?

[SimonForsman]

Its a good thing to be honest, We definitly don't want a situation like in the US where any non trivial piece of software infringes on hundres of patents.

If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development, decided the court, echoing the opinion given last November by the court's Advocate General, Yves Bot.

code is copyrightable still so your topic is misleading, the functionality of the code however is not. You can freely implement your own compatible version of .Net and call it, lets say mono without infringing on copyright, as it should be, you are allowed to reverse engineer other products that you legally own the right to use in order to better understand how they work and can use that knowledge to create a compatible or competing product.

Edited by SimonForsman, 07 May 2012 - 10:44 AM.

[Alpha_ProgDes]

Good point. Changed.

[ChurchSkiz]

Let's say someone invents a machine that wipes your butt for you after the bathroom.

The ButtWiper 2000 is patented.

Some genius reverse engineers the BW2k and then comes out with a knock off product. If he copies the same technology, he is infringing on the patent.

Now if someone is a genius and writes a piece of software to solve a problem in the world that no one else has, let's say an algorithm for indexing a song into a specific genre, and then someone reverse engineers it and copies it, this is no longer protected by a patent?

So where do you draw the line that an invention is no longer an invention because it is electronic and not tangible?

If someone spends time and resources on something to create it, why is it not patentable? Where is the incentive for businesses to spend time and money creating things that can then just be reverse-engineered and copied for free?

I think there is a middle ground between no functionality is patentable, and today's US system where you can patent generic ideas "I'm patenting software that allows you to store data in a 'table' ."

[swiftcoder]

I think there is a middle ground between no functionality is patentable, and today's US system where you can patent generic ideas "I'm patenting software that allows you to store data in a 'table' ."

The problem is that the middle-ground has never worked. You need subject experts to determine whether or not an idea is 'novel' and 'non-obvious', and the patent office doesn't employ subject experts...

[SimonForsman]

Let's say someone invents a machine that wipes your butt for you after the bathroom.

The ButtWiper 2000 is patented.

Some genius reverse engineers the BW2k and then comes out with a knock off product. If he copies the same technology, he is infringing on the patent.

Now if someone is a genius and writes a piece of software to solve a problem in the world that no one else has, let's say an algorithm for indexing a song into a specific genre, and then someone reverse engineers it and copies it, this is no longer protected by a patent?

So where do you draw the line that an invention is no longer an invention because it is electronic and not tangible?

If someone spends time and resources on something to create it, why is it not patentable? Where is the incentive for businesses to spend time and money creating things that can then just be reverse-engineered and copied for free?

I think there is a middle ground between no functionality is patentable, and today's US system where you can patent generic ideas "I'm patenting software that allows you to store data in a 'table' ."

This ruling has nothing to do with patents, a company tried to claim that a competing product infringed on their copyright (not their patents) simply by providing compatible functionality.

Patents on software is an abomination, a patent is a temporary monopoly granted by the state, monopolies are always bad for society so they should be granted very carefully and only when there is a compelling reason to do so, There is no reason to grant patents on software as innovation in the software industry happens without them, copyright is sufficient protection. Heck, even copyright is a state granted monopoly which should be scaled back. (The duration is insane if the purpose of it is "To promote the Progress of Science and useful Arts"). (Note that it doesn't say, "To maximize the profits generated by dead people")

[way2lazy2care]

Patents on software is an abomination, a patent is a temporary monopoly granted by the state, monopolies are always bad for society so they should be granted very carefully and only when there is a compelling reason to do so, There is no reason to grant patents on software as innovation in the software industry happens without them, copyright is sufficient protection. Heck, even copyright is a state granted monopoly which should be scaled back. (The duration is insane if the purpose of it is "To promote the Progress of Science and useful Arts"). (Note that it doesn't say, "To maximize the profits generated by dead people")

I think software should still be patentable, but the duration of the patents could stand to be lowered quite a bit. I think currently they are design patents, so they'd last 14 years from filing. I could see 5 years being reasonable in software.

The reason patents, "promote the Progress of Science and useful arts," is because it protects the patent holder if they decide to share their technology. Without them a good number of corporations would obfuscate any of the technology they've developed. Not that I think patent trolling is good, but the concept of a patent is good despite it being implemented like a giant turd.

The problem is that the middle-ground has never worked. You need subject experts to determine whether or not an idea is 'novel' and 'non-obvious', and the patent office doesn't employ subject experts...

This I think is the problem. There are so many patents that are essentially 'apply old functionality to new technology'. They don't have any patent rights to the new tech, it's just applying old functionality to it. I am dumbfounded how these ever get granted.

I think "This American Life" had an awesome episode on patent trolling. I can't remember if it was them, but somebody had an interview with somebody who worked at the patent office that was pretty interesting also.

edit: Maybe, in fact, it should be the opposite. Make code copyrightable, but not patentable. It seems like code lends itself more naturally to copyrighting than to patenting.

Edited by way2lazy2care, 08 May 2012 - 07:12 AM.

[Luckless]

Actual patents are very much a required for progress and innovation. Without being able to patent a new and potentially valuable process you basically hand all developments to a handful of the most powerful companies with the deepest pockets. Which means no new startups based on innovative advances in software.

The whole point of the patent system was suppose to be to allow someone with limited capital to invent something and protect it so they could safely go to those with capital to invest and say "Hey, I have this great idea, want to buy part of it?". Without Patents any attempt to do that results in those with capital saying "Hey, nice idea. Let me have our engineer take a look at that. ... So Engineer, do you think you can build something like that for me? Yes? Sweet. Someone throw the inventor out of here."... which results in great ideas never being developed for market.

The problem with software patents, and often patents in general, is that they are being granted for non-innovation. They are not suppose to protect obvious and trivial ideas. "Slide to unlock"? Obvious and trivial, and we can see that 'functionality' having existed on doors for thousands of years. That someone might consider this for unlocking an electronic device isn't really innovation.


And personally, I think copyright on creative works should last for as long as there is active development on the material. If I become a published author of a loved series of books, share my vision with a far younger writer in my old age, and pass the series to them to continue, then I think they should continue to have the full protection from other writers eventually coming in and doing their own "Vision" of our work. If they want to do their own "Vision" of something, make up your own damn characters and settings! Or pull from thousands of years of existing literature if you're not creative enough to come up with something new.

I say allow the creators to choose when and how their work enters the public domain. Maybe I want to let my early works be copied and redistributed for free, but for non-commercial and non-derivative use only. (You would be free to read and share with your friends, but not free to charge them money for it or alter the text.) Maybe I get bored of the project and just toss the whole thing to public domain and let society do with it as they please.

If you're worried about "Corporations owning all the rights" then throw in some clause against it, but honestly with the amount of literature we have from before the 1800s, I really don't think there is a shortage.

[mdwh]

But also, it could prevent some from patenting algorithms.

Good!

(I don't believe software patents are enforcable in the EU, so this is consistent with the current situation anyway.)

Let's say someone invents a machine that wipes your butt for you after the bathroom.
The ButtWiper 2000 is patented.
Some genius reverse engineers the BW2k and then comes out with a knock off product. If he copies the same technology, he is infringing on the patent.
Now if someone is a genius and writes a piece of software to solve a problem in the world that no one else has, let's say an algorithm for indexing a song into a specific genre, and then someone reverse engineers it and copies it, this is no longer protected by a patent?

If someone is copying the program, then they are at risk of copyright infringement.

What if two people independently solve the same problems - which is not unreasonable, I would argue few problems in software are so hard that only one person ever would solve it - should the one who gets the patent first prevent anyone else from doing it?

So where do you draw the line that an invention is no longer an invention because it is electronic and not tangible?

Where do you then draw the line between algorithms, and patenting mathematics?

I think there are other reasons why engineering of physical products is different. Software can be much cheaper to produce, perhaps even a single person writing code for fun - which means the legal costs to get a lawyer to check the code represent a much higher proportion. Software is also a newer industry, so we end up with the equivalent of people patenting the nut and bolt.

If someone spends time and resources on something to create it, why is it not patentable? Where is the incentive for businesses to spend time and money creating things that can then just be reverse-engineered and copied for free?

The incentive is that people will buy your product. Your work is protected by copyright.

But competition is an important part of our markets. You want to be granted a monopoly so that no one else can do something similar, even if they develop it independently, and even though your work is already protected by copyright?

I think there is a middle ground between no functionality is patentable, and today's US system where you can patent generic ideas "I'm patenting software that allows you to store data in a 'table' ."

What examples of software algorithms do you think do deserve/require a patent, out of interest?

[mdwh]

The reason patents, "promote the Progress of Science and useful arts," is because it protects the patent holder if they decide to share their technology. Without them a good number of corporations would obfuscate any of the technology they've developed.

Like only releasing the software in compiled binary form? Most companies go to great lengths to obfuscate already, even with the protections of copyright and patents.

Actual patents are very much a required for progress and innovation. Without being able to patent a new and potentially valuable process you basically hand all developments to a handful of the most powerful companies with the deepest pockets. Which means no new startups based on innovative advances in software.

What actually happens is the opposite. Large companies with deep pockets already have lots of patents, and can do cross-licensing deals with each other. A new start up might manage to get one patent, but unfortunately they're infringing on several patents owned by big company. So big company either gets to do a cross-license anyway, or also has the option to blow them out the market. For new startups that don't have patents, it's even worse. Large companies also have more money for expensive legal battles.

People support patents because of this idea of it protecting the individual against big companies - but the practice seems opposite to the theory.

The whole point of the patent system was suppose to be to allow someone with limited capital to invent something and protect it so they could safely go to those with capital to invest and say "Hey, I have this great idea, want to buy part of it?". Without Patents any attempt to do that results in those with capital saying "Hey, nice idea. Let me have our engineer take a look at that. ... So Engineer, do you think you can build something like that for me? Yes? Sweet. Someone throw the inventor out of here."... which results in great ideas never being developed for market.

Although with software, you can protect it with copyright (and as anyone who used to hang out in Help Wanted should know, ideas alone are cheap and often worthless - it's the implementation that counts).

I agree with you on the problem of too obvious patents.

And personally, I think copyright on creative works should last for as long as there is active development on the material. If I become a published author of a loved series of books, share my vision with a far younger writer in my old age, and pass the series to them to continue, then I think they should continue to have the full protection from other writers eventually coming in and doing their own "Vision" of our work. If they want to do their own "Vision" of something, make up your own damn characters and settings! Or pull from thousands of years of existing literature if you're not creative enough to come up with something new.

But wait - why is it okay that the "existing literature" is public domain, but you want protection of your stuff long after you are dead?

Should Disney have come up with their own ideas? Should whether we get film versions of Tolkien's work be purely up to the say so of people who aren't the author?

I say allow the creators to choose when and how their work enters the public domain. Maybe I want to let my early works be copied and redistributed for free, but for non-commercial and non-derivative use only. (You would be free to read and share with your friends, but not free to charge them money for it or alter the text.) Maybe I get bored of the project and just toss the whole thing to public domain and let society do with it as they please.

Sure - but after you are dead?

If you're worried about "Corporations owning all the rights" then throw in some clause against it, but honestly with the amount of literature we have from before the 1800s, I really don't think there is a shortage.

It's a good thing that the copyright laws today weren't around then, then

[Luckless]

People support patents because of this idea of it protecting the individual against big companies - but the practice seems opposite to the theory.

This only stems from abuse of patents which have allowed a whole host of trivial things that should never have been patented in the first place.


You also glossed over my comments of "Active Development" for my views on copyrights. If the last person who was granted creative control over a copyright lets it pass by, then it would pass into public domain as anything would now. Such a change to copyright likely wouldn't have that huge of a change in the big picture. It would offer fair protection to a handful of authors and content creators who choose to continue to develop a collection. Anyone doing a one off with no interest in expanding their work would simply allow it to fall along the path of current copyright. If you created a world/setting/character set with which you wanted to make many creations from, and choose to pass control on later in your career, then things stay under the creator's control.

[mdwh]

People support patents because of this idea of it protecting the individual against big companies - but the practice seems opposite to the theory.

This only stems from abuse of patents which have allowed a whole host of trivial things that should never have been patented in the first place.

It's conceivable that software patents might be a good thing in a world where we didn't have trivial things patented. Though I'd like to see reform of the patents granted (software or otherwise), before I ever consider lending my support to software patents.

You also glossed over my comments of "Active Development" for my views on copyrights. If the last person who was granted creative control over a copyright lets it pass by, then it would pass into public domain as anything would now. Such a change to copyright likely wouldn't have that huge of a change in the big picture. It would offer fair protection to a handful of authors and content creators who choose to continue to develop a collection. Anyone doing a one off with no interest in expanding their work would simply allow it to fall along the path of current copyright. If you created a world/setting/character set with which you wanted to make many creations from, and choose to pass control on later in your career, then things stay under the creator's control.

What counts as active? If people who have done nothing creative on the original work but simply inherited the rights, occasionally grant licences to make themselves lots of money for nothing, that's okay? What about all the historical works now in the public domain, that have been constantly under active development due to people creating derivative works - would the world be a better place if all those works were under the control of descendants of the original authors?

Also note that derivative works of your work would still be copyrighted. E.g., author A releases something, which becomes public domain. Author B creates a derivative work. You refer to "our" or "their" work, but if author B is still alive, then the collective work of A and B would still be covered by copyright.

What I disagree with is that if author C comes along and wants to make a derivative work of dead A's work, but with nothing based on B, that he should still be prevented from doing so because of copyright on a dead person's work. Your argument isn't about protecting a collective work whilst some authors are still alive - it's about trying to control who uses it, even after you are dead.

[way2lazy2care]

cut

This kind of mentality is why things like 'The Great Gatsby' in 3D are allowed to be made. Just... sayin...

[Antheus]

Re: Patents

Make them non-transferrable.

- If company dies, patent expires, obviously exists as prior art - it offered no competitive advantage
- If filed by individual, it's registered to person and if they leave (company and such), they take it with them (incentivizes individuals to invent since they'll have bargaining position).

- Same as trademarks - use it or lose it. Either enforce a patent on everyone or lose it. Prevents cartels and backroom deals.


If you now develop a true innovation, something as revolutionary as 4-stroke engine, good for you, you'll be rich, dominate the market and advance transportation. It will have actual market value.

Otherwise, it's not worth anything, at least as far as market goes.

Edited by Antheus, 09 May 2012 - 11:16 AM.

[way2lazy2care]

Re: Patents

Make them non-transferrable.

- If company dies, patent expires, obviously exists as prior art - it offered no competitive advantage
- If filed by individual, it's registered to person and if they leave (company and such), they take it with them (incentivizes individuals to invent since they'll have bargaining position).

- Same as trademarks - use it or lose it. Either enforce a patent on everyone or lose it. Prevents cartels and backroom deals.


If you now develop a true innovation, something as revolutionary as 4-stroke engine, good for you, you'll be rich, dominate the market and advance transportation. It will have actual market value.

Otherwise, it's not worth anything, at least as far as market goes.

I think the problem with non-transferable patents is it forces inventors to become business people. If all I want to do is invent, I don't want to get involved in licensing my patents; that would just waste my time. I think having subject matter experts be more involved in patent applications would solve a lot of the issues. A problem with that though would be that now we have an enormous backlog of trivial/non-original patents that would have to be re-evaluated.

edit: Cnet did a special when Buzz Out Loud was still running, and they mentioned possibly crowdsourcing the patent application process. Put it up for a while and allow people to flag things as obvious or having been previously patented or whatever; then patent officers would have a little more time to thoroughly look through the applications.

Edited by way2lazy2care, 09 May 2012 - 01:05 PM.

[Antheus]

I think the problem with non-transferable patents is it forces inventors to become business people

If you're not interested in business, you don't need to file patents. Patents only matter for business.

You have two options:
- file patents in name of your employer, thereby relinquishing any ownership
- file patents, but get a salesperson to handle the licensing paperwork on your behalf for commission

[mdwh]

cut

This kind of mentality is why things like 'The Great Gatsby' in 3D are allowed to be made. Just... sayin...

Okay, I have no idea what the great gatsby is, what the 3D version is, whether it's a problem that something is "allowed to be made". Nor do I know which of my posts you are actually referring to, at which argument of mine you are arguing against, or what your argument against me is

(Nor is it particularly fair to brush someone's arguments off as a "mentality", when you aren't willing to engage in the debate yourself. If you have some arguments against points I've made, please elaborate...)

Edited by mdwh, 10 May 2012 - 08:45 AM.

[mdwh]

- If company dies, patent expires, obviously exists as prior art - it offered no competitive advantage
- If filed by individual, it's registered to person and if they leave (company and such), they take it with them (incentivizes individuals to invent since they'll have bargaining position).

I don't disagree, but in the UK at least, I believe that patents are always filed by individuals. So they have to be transferred to a company, even if done by employees on work time.

So either we are always in the second situation - or the law should be changed to allow companies to register patents, which then die when the company dies.

What about if a company is bought out? Or splits up? I mean, I agree with the general idea - it's depressing the way rich companies can go around buying companies just to build up patents to then lock other companies out the market, when the company had nothing to do with developing the invention. But one might have to be careful of the wording on when exactly a patent expires because of this. E.g., if a company buys a smaller company, which then continues to operate as before, arguably in that case it would be unfair for the patent to expire. In contrast to a company buying another company to completely ditch everything, but just keep assets like patents - but it seems hard to frame a law to distinguish the line between those two cases.

[mdwh]

I think the problem with non-transferable patents is it forces inventors to become business people. If all I want to do is invent, I don't want to get involved in licensing my patents; that would just waste my time.

What sort of situation are you referring to? An individual who just wants to create inventions? Or an employee of a company? For the latter, as I say above it's already the case that patents have to be transferred, though the company will handle all the legal business work for you.

For an individual, surely you have to do the licensing of patents now anyway? Out of interest, are there examples where someone has invented something, not engaged in any business, but been rewarded via patents? (But as I say, surely this would involve having to licence the patent, at least. Not to mention that the work of filing a patent still seems very much "business".)

[Antheus]

What about if a company is bought out? Or splits up?

At some point, the company is delisted, which means it died, so same rule applies.

Locking down to inventor means encouraging actual use and development of an invention. Let's say Joe's Shop Ltd. invents something Ford could use. Let Ford license it.

Current system heavily favors M&A approach and abuse of patent system.


Here's another example. Let's say I have $10,000. I lend $5000 of that to someone else which will require repayment of $5500. What is the most expensive car I can buy now?
a) $5000
b) $10000
c) $10500

Not so long ago, it was a).

Then it was changed to c). And the result was financial collapse of 2008. Banks were giving out mortgages and then traded with full sum of money (which didn't exist).

It's just a matter of policy, but it can have far reaching effects.

but just keep assets like patents

Patents as assets are counter-productive to spirit of innovation. They don't encourage improvement, they encourage hoarding and extortion.

Let's say I buy a patent on circular widgets. When someone wants to license the patent, I say no. I don't make circular widgets, I don't have a factor, I don't even have a business. But I do have a patent and refuse to license it. Until someone does go and make such a widgets, upon which I sue them.

This is perfectly legal and even encouraged by current patent system. It's by far the most profitable way of doing business.


Patents should protect inventors and innovators by allowing them to build better products without fear of being ripped off. They shouldn't be property that one sits on.