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Software Patents

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I know I've seen this topic come up here a number of times, so I figured it's a good place to ask for some opinions on highlights in the topic. For all of you who've been provoked by the issue of software patents, could you post some of the best examples you've found of abuses, or for that matter, justifiable use of software patents? I'm interested in reading more about the topic as it occurs on both sides, (those who consider them purest sin, and those who use them) and I'd appreciate any particular examples all of you can produce.

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I think you'll find patents to be about as religous a topic as OpenGL vs DirectX or Java, good or bad:).

I used to think that all software patents were bad, but as I gain more experience I've only personally seen patents used in a defensive manner, ie companies trading them to cross license each others technology in a constructive manner. Or they get them just to protect themselves from other companies trying to patent the same thing.

Microsoft is good in thisarea I find. They amass a heck of alot of patents but I've never heard of them sueing someone for use of their patents. Perhaps I'm out of the loop on this though:)

For all the big cases you hear about patents bringing about the end of the software industry, I'm surprised I've never personally seen this happen.

Perhaps its because I'm Canadian and many of our patent talks are done under Canadian law?? I don't know, IANAL.:)

Cheers
Chris

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The best known example of software patent abuse is the case of the LZW compression used by the GIF file format. Basically, the company said anybody could use it for free, then later changed their mind and all hell broke lose.

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Original post by Extrarius
The best known example of software patent abuse is the case of the LZW compression used by the GIF file format. Basically, the company said anybody could use it for free, then later changed their mind and all hell broke lose.


didn't something similar happen with mp3?

software patents exist for good reasons, but they're constantly abused. there are even companies that literally do nothing other than buy patents only to profit from lawsuits.

http://en.wikipedia.org/wiki/Patent_troll
http://en.wikipedia.org/wiki/Software_patent

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I've never seen a good software patent.

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I used to think that all software patents were bad, but as I gain more experience I've only personally seen patents used in a defensive manner, ie companies trading them to cross license each others technology in a constructive manner. Or they get them just to protect themselves from other companies trying to patent the same thing.


So, how are you, a one person startup with no patents, going to join the software development community then? You only hope will be to shell out big cash to get a bogus software patent so the other guys won't sue you.

The worst abuse, aside from the one's mentioned above, has to be the NTP vs RIM case. Not that RIM is such a decent, upstanding company in the field of software patents, but they were convivted to pay a 9 figure sum to NTP over patents that were wrong and were even invalidated by the USPTO during the course of the lawsuit.

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The medical imaging field has good cases of patent use. You need patents to protect the image reconstruction algorithms of next-generation systems so that you still can profit from your R&D in the long run while putting your invention under everyone's scrutiny when it goes under testing.

-cb

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Original post by Sander
So, how are you, a one person startup with no patents, going to join the software development community then? You only hope will be to shell out big cash to get a bogus software patent so the other guys won't sue you.


Its a valid question! You could just write something original:) But seriously I believe you need to strike a balance between protecting R&D IP that was done by a company and lowering barriers to entry for other companies.

How, I"m not sure:)

Cheers
Chris

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Original post by cbenoi1
The medical imaging field has good cases of patent use. You need patents to protect the image reconstruction algorithms of next-generation systems so that you still can profit from your R&D in the long run while putting your invention under everyone's scrutiny when it goes under testing.


The algorithms do not need patent protection. Simply patent the machine itself. If I want to use that algorith of yours to make some crazy 3D shooter engine or build a 3D cinema projector then I should be able to. Only creating another medical imaging machine that does essentially the same as yours should be off limits.

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Simply patent the machine itself.

Some machines only have the sensors and they feed the raw data to a separate workstation. Some algorithms use data from machines already in existence. You really want to protect the software, not just the machine.
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If I want to use that algorith of yours to make some crazy 3D shooter engine or build a 3D cinema projector then I should be able to.

Why should I restrain myself to only one market? Maybe I wouldn't care about video games, but if the algorithm is also useful to compute oil well location from surface sonar rebound data, why can't I make money off that market too?

-cb

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Original post by cbenoi1
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Simply patent the machine itself.

Some machines only have the sensors and they feed the raw data to a separate workstation. Some algorithms use data from machines already in existence. You really want to protect the software, not just the machine.

The software is protected -- by copyright law.

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If I want to use that algorith of yours to make some crazy 3D shooter engine or build a 3D cinema projector then I should be able to.

Why should I restrain myself to only one market? Maybe I wouldn't care about video games, but if the algorithm is also useful to compute oil well location from surface sonar rebound data, why can't I make money off that market too?


But you can! You can sell it to me like any other copyrighted work, or you can let me invest my own R&D and research the algorithm myself on my own cost.

The biggest prolem with software patents is that software is already protected by copyright. The only advantage a parent has over copyright is the ability to kill an independeltly created work similar to your own. In the software world, where new things are evolved from old things rather than radically redesigned and completely reimplemented in a new way, this kills the market.

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The software is protected -- by copyright law.

The difference between software and hardware can sometimes run thin. What runs in software some day might be run using dedicated silicon circuitry the following day. Cases in mind: alpha blending, Z-buffer, texture compression. Copyright laws won't help you here.
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The biggest problem with software patents is that software is already protected by copyright.

The legal protection between the two is not the same, though.

Maybe I should make myself clearer here: by software, I mean algorithms.

-cb

[Edited by - cbenoi1 on May 1, 2006 7:09:19 PM]

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Original post by cbenoi1
Maybe I should make myself clearer here: by software, I mean algorithms.


Ah... they should not be covered by anything. You can protect an implementation of an algorithm (say, in hardware and patent it, or in software and copyright it).

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Original post by chollida1
You could just write something original:) But seriously I believe you need to strike a balance between protecting R&D IP that was done by a company and lowering barriers to entry for other companies.

It's hard to be entirely original when so many things are patented. It's not really a "balance" when the existing companies are not held to the same standard (as they simply licence each others' IP). And the R&D IP is already protected by copyright law.

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Original post by Sander
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Original post by cbenoi1
Maybe I should make myself clearer here: by software, I mean algorithms.


Ah... they should not be covered by anything. You can protect an implementation of an algorithm (say, in hardware and patent it, or in software and copyright it).


I'd have to argue that point. :) You're assuming that the algorithms involved were relatively easy (hence cheap) to develop and that the implementation of said algorithms is where the real money is spent. While this is true most of the time, there could be cases where the cost of developing the algorithms themselves far exceeds the cost of implementation.

As a theoretical example, suppose a company developed algorithms detailing the interaction between a complex organic organism (like the human body) and a foreign compound (think drug research). Now pursuing such development would undoubtedly take many decades and cost hundreds of billions of dollars in research. So let's say that a company goes ahead and invests the required capital, and in 50 years has finally developed a working model. The company is then going to want to recoup their massive investment, so they'll undoubtedly sell an implementation of their previous effort, whether software or hardware based, to other companies for large sums of money, plus royalties. Now human nature being what it is, it wouldn't be very long before their product is reverse-engineered and the algorithms extracted from their implementation. So without patents that protect the algorithms themselves, what's to stop a competitor from stealing them, writing their own implementation, and then undercutting the original company that invested all of those billions right out of the market? Admittedly this is an extreme example, but I believe that in cases such as this software patents would serve a valuable purpose.

Now having said that, I believe that software patents as they stand today should be eliminated, with a new system put in place that only protects algorithms that are developed at a significant financial cost. The current system is simply too easy to abuse, but that doesn't mean that there aren't any cases where protecting an "idea" is necessary in order for that idea to take fruit. [smile]

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1) It's impossible to extract the software model/alogorithm used for creating the drug you speak of simply by looking at the drug itself.
2) The drug itself can be patented, so the competitors chemically reversed engineered product that undercuts you is infringing.

So from a software parent point of view the example doesn't hold water. I'm not going to try arguing for/against drug patents. That's a whole mess on their own which I'll gladly leave alone for now.

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Original post by Sander
1) It's impossible to extract the software model/alogorithm used for creating the drug you speak of simply by looking at the drug itself.
2) The drug itself can be patented, so the competitors chemically reversed engineered product that undercuts you is infringing.

So from a software parent point of view the example doesn't hold water. I'm not going to try arguing for/against drug patents. That's a whole mess on their own which I'll gladly leave alone for now.


Sorry, I guess I should have been more clear. :) I didn't mean that a company who developed such software would sell drugs researched with it, I meant that the company (quite possibly a biotech firm and not a pharmaceutical) would sell the software system itself. As the system would be built upon a complex series of algorithms developed at great expense, the company would run the risk that someone else would reverse-engineer it and avoid copyright law by writing their own implementation using the stolen algorithms. The second company could then claim that they independently developed the algorithms and avoid any litigation.

The point I was trying to make is that algorithms are not always intuitive, easy things to come up with, and thus should sometimes enjoy the legal protections that encourage necessary capital investment. In my "Holy Grail of drug testing" example, serious amounts of research would need to done in order to develop the appropriate scientific/mathematical understanding of the human body. Now if all of this research is funded by governments and universities then there's no need to protect it, but if one expects private enterprise to foot the bill then they're going to want some assurances that they'll be able to protect the fruit of their research from being stolen by their competitors. [smile]

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You can protect an implementation of an algorithm (say, in hardware and patent it, or in software and copyright it).

Copyrights do not protect the inherent algorithms (or methods herein), which are the actual valuable pieces of the whole software application. An astute programmer can extract those critical algorithms from the application and integrate them into other software applications. In that case, copyrights will only protect litteral copying (or "derivative works") of the entire application but not those valuable pieces of know-how.

-cb

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Original post by Ramius
Sorry, I guess I should have been more clear. :) I didn't mean that a company who developed such software would sell drugs researched with it, I meant that the company (quite possibly a biotech firm and not a pharmaceutical) would sell the software system itself.


1) The software is protected by copyright so copying is out. As for reverse engineering it, yeah that's possible. But if company A had to spend millions in order to research the algorithm itself (before even writing the software) then you can bet company B needs to spend vast ammount of money to be able to reverse engineer it. Think millions as well. So company A is quite safe. That is, even if it can be done at all. I think that the complexity of the algorith to make the scenario possible would be nearly impossible to reverse engineer.

2) Now suppose company B does the research itself as well. It also spends the millions and also makes a software model to sell. Should company A be able to put them out of business? Ofcourse not.

So, should the whole of the software industry suffer from the drawbacks of software patents just so a very, very rare and quite theoretical scenario as the above can be covered? I think not.

Would the algotithm still have been researched in a software patent free world? Most likely. Maybe by a university rather than company A, but company A has ample oportinity to make money from the algorithm even without software patents.

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Honestly I'm starting to wonder how it is there's a serious debate on this topic. I've spent a fair amount of time looking around on Google and Wikipedia, and the whole matter seems pretty one-sided against software patents. For instance, if you look at the external links section of Wikipedia's Software Patent Debate article, there's six sites listed supporting software patents, and many times that many in opposition. Of course I understand that could represent a bias on the author's part, but ultimately I've noticed about the same in looking around on Google. I can appreciate the comments of those of you who support software patents at least to some extent, but I'm wondering if you could point out any particular articles or organizations that make a case for software patents, whether you agree with them or not.

And of course, any comments you have on these perspectives are welcome as well.

A few of the meager examples I've been able to locate so far:
Cisco Systems: Defending Innovation
Shoring up Rights to Technology Inventions

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While I'm too lazy to compile an actual list of software patent advocates, I'd recommend checking out organizations that have a lot to lose if such patents didn't exist. :) This should apply to most cutting edge, time consuming research endeavors such as advanced image/voice recognition software, sophisticated compression techniques, voice synthesis software, and pretty much anything biotech. Basically any company that has to devote considerable resources to developing new levels of understanding required for algorithm construction is likely going to want at least limited software patent protection. Corporations that could care less would probably include any who rely primarily on common, well understood, and most importantly public domain scientific knowledge and research. If a given algorithm takes a couple of averagely skilled guys a day to come up with then there's really not much value in protecting it, is there? Whereas if it's the result of a year of research by a large team then there's likely to be a lot more interest expressed in protecting it. [smile]

As I stated earlier, I'm actually against the software patent system that we have in the United States currently. It seems that it's far too easy for a corporation/individual to abuse, so I'm all for some legal restructuring. However, I believe that the assumption that algorithms are never in need of any kind of legal protection is just as faulty as the current software patent system itself. Just my opinion though. :)

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Original post by Sander

The biggest prolem with software patents is that software is already protected by copyright. The only advantage a parent has over copyright is the ability to kill an independeltly created work similar to your own. In the software world, where new things are evolved from old things rather than radically redesigned and completely reimplemented in a new way, this kills the market.


Ah, having read this more carefully, I think I see where Sander is coming from. However, that particular problem (independent concurrent development) is an issue with patents of any type, and is hardly specific to software patents. While one can of course debate the value of patents in general, I was under the impression that this thread was about how software patents compare to more traditional patents. As for the statement that the software world always evolves new algorithms rather than spend significant effort designing them from scratch (relatively speaking of course), that is exactly what I've taken issue with in my other posts. =)

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I'm starting to wonder how it is there's a serious debate on this topic.

The alternative to patents is trade secrets. Keeping things under wraps works very well for the manufacturing-type industries. For example, if you want to steal your competitor's secrets and make cheap knock-offs, then you'd have to break into that competitor's facilities and take away that piece of technology. You basically have to commit a crime to gain the know-how.

The problem with trade secrets is that many inventions cannot be hidden away when marketed. Take drugs for example. Once you have discovered a mollecule and put it on drugstore shelves, any lab on the planet can determine its chemical composition and make cheaper duplicates. The same goes with software-based inventions. The few opcodes that make a software application so valuable are in plain view of everyone. How do you protect the invention expressed by those few opcodes?
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I'm actually against the software patent system that we have in the United States currently.

I don't like it either. As jurisdisctions tend to have differing opinions about what is patentable and what isn't, we are not going to see an end to the software patent debate anytime soon.

-cb

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Original post by cbenoi1
The few opcodes that make a software application so valuable are in plain view of everyone. How do you protect the invention expressed by those few opcodes?


With copyrights.

I'll restate: The only additionaly value of having a patent alongside a copyright on a piece of software is the ability to kill off an independantly developed alternative(*). Anything else is already adequately covered by copyright.

You do not have the 'right' to be able to kill alternative products. You do not have the 'right' to be free from competitors. The market does not owe you a living. The only use of a software patent is as an anti-competetive weapon.

(*)I'm not again going into how that alternative was developed (independant research, legal reverse engineering).

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I was under the impression that this thread was about how software patents compare to more traditional patents. As for the statement that the software world always evolves new algorithms rather than spend significant effort designing them from scratch (relatively speaking of course), that is exactly what I've taken issue with in my other posts.


Software patents differ from normal patents because softweare is already protected by copyright. No other patentable material is doubly protected this was. That is what makes software patents so heinous. As for the 'software evolves' bit, it's an arguement why softweare should solely be protected by copyrights and not solely by patents.

If you want to argue the case for software patents, argue why software should not be protected by copyrights, because the real evil is the double protection software has.

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Copyrights protect the expression, not the inherent invention. Those are two different things.


Exactly. :) There's no "double protection" involved, as copyrights make it illegal for someone to rip off pieces of your work verbatim (plagiarism) while patents make it illegal for someone to rip off your ideas that your work was based upon (more or less).

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You do not have the 'right' to be able to kill alternative products.


No, you don't, which is why a patent can be invalidated if evidence of prior art is met by another party.

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You do not have the 'right' to be free from competitors.


Uh... yes, you do. That is exactly what a patent (any patent) gives its owner. This is also why patents have expiration dates. ^_^ Now we can certainly argue whether or not patents are really necessary, but I think that's kind of outside the scope of this thread. Personally, given my take on human nature, I believe they're quite necessary, if often misused. :)

Disclaimer: I am an no way a patent lawyer or any other type of legal expert. My knowledge of patent law, such as it is, comes from my own readings and experience. If someone who has legal training regarding such matters needs to correct any greivous errors in my thinking, please feel free to do so. [smile]

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