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Tutorial Doctor

Patenting an Algorithm?

39 posts in this topic

Thinking on this a little more -- I think the two primary distinctions between being able to patent a machine and being able to patent software are these: Firstly, a machine is almost always an embodiment of a particular application and therefore meets a sort of minimum bar for specificity, and secondly, at the time patent law was first written, it was clear even to non-technical people that machines could be easily reverse-engineered and duplicated.

 

When software patents began to take root, people who didn't know software tried to draw an analogy to machines and failed to see key differences. The main thing they failed to see is that an algorithm is not like a machine because an algorithm can be used broadly, essentially without modification. In other words, it is decoupled from an application, and therefore loses that necessary specificity.

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So you don't actually have a single example of what you claim...

 

In respect to software, no.  But when it comes to patents for physical products, yes I do, having spent many years working in manufacturing.  And as I said, patents are the same, whether they're for software or hardware.

 

 


It's all very well saying that the system would work great if only they were issued and used properly - when that never happens. Software patents as they exist in the world today are something I dislike - what about you? If things are actually fixed (not "could be"), great, then I'll think further.

 

In other words, you don't want to discuss it until it's the way you want it?  If everyone thought like that, nothing would ever get fixed.

 


Though I note that some of the arguments in favour of other patents (billions of dollars of investment, no other means to protect) don't apply to software patents.

 

Can you give a valid reason why they don't apply to software?

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"In other words, you don't want to discuss it until it's the way you want it? If everyone thought like that, nothing would ever get fixed."

I'm perfectly happy to discuss it, that's what I'm doing now. Earlier, you said:

"Patents are not the problem. The problem is the bodies that issue them and how they are used."

Whether we blame "patents" or "the bodies", I don't care. But my point is that I disagree with "software patents", by which we mean software patents in today's world. Now yes, maybe you could propose an alternative world where "software patents" means something different, and I may or may not have a different view on those, but it would have to be a dramatically different system.

I offer a simple solution to fix them: abolish software patents. If you want to offer an alternative solution that's fine. But what we can't do is simply say "patents are fine, it's the problem with the bodies", and then carry on with nothing actually being fixed. What is your proposed solution?

"Can you give a valid reason why they don't apply to software?"

Don't involve billions of dollars of investment, and have other means to protect them (e.g., copyright).

 


 

 

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I personally think that if we are to have patents at all, we should also have software patents. However, I think that the patent offices, in particular the US one, needs to be more restrictive and not grant patents to obvious stuff. I think we should greatly reduce the expiration dates, and set them on a case by case basis.

 

I would also propose some form of limit in submissions or stockpile size so that you can't just patent everything you can think of, but rather have to select which ones you really care about. It would probably be really hard to implement though.

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But what we can't do is simply say "patents are fine, it's the problem with the bodies", and then carry on with nothing actually being fixed. What is your proposed solution?

 

The biggest problem with patents seems to be the US patent system, which seemingly grants patents for just about anything.  Not being an American, I have no idea what can be done to fix any part of their government system, especially since the companies with the most money would probably prefer to keep things as they are.

 

So unfortunately I have no idea how to fix the situation. But simply saying "Well, the system as we have it isn't working, so let's not have any system." isn't a solution either.

 


Don't involve billions of dollars of investment, and have other means to protect them (e.g., copyright).

 

There doesn't need to be billions of dollars invested to make a patent worthwhile.  There have been many valid patents made over the years by companies that don't make that kind of money.

 

And copyrighting your code isn't going to help you at all if your competition disassembles your code and creates a product based off of that. Their end product will be dissimilar enough to be safe from copyright infringement. 

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I was talking to my brother earlier about this very thing. Came up with a good idea. I think if people want to protect patents, it should be more investment required to do so. 

 

One way to do it is to shorten the length the patent can be held. Or make it so that a patent, in order to be held for a longer period of time, must be shown to be in active use (so that patent hoarders will have to use the patents they own).

 

I think the latter idea is the best idea. No one should have a right to have a patent that they are not actively using, with some impression that they are "going" to use it. 

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@LennyLen: "So unfortunately I have no idea how to fix the situation. But simply saying "Well, the system as we have it isn't working, so let's not have any system." isn't a solution either."

I do have one such solution - don't have software patents. You are the one going "Well I can't think how to make it better, so let's do nothing and keep it as it is".

Sure, I don't have a solution which involves still having software patents, but so - you are the one trying to entertain that possibility, not me.

You acknowledge the current situation is bad, you offer no solution that involves software patents without the problems, but you want are arguing against the people here who don't like software patents - I don't get it.

(Whether as a non-US citizen I can do anything is another matter; but that doesn't stop me having an opinion, either on the US, or when my country considers similar issues - the debate about software patents has come up in the EU over the years.)

"There doesn't need to be billions of dollars invested to make a patent worthwhile."

You asked me what arguments for other patents don't apply to software patents, so that was one of them.

"There have been many valid patents made over the years by companies that don't make that kind of money."

Out of interest, which software patents are you referring to? (Not saying they don't exist, but last time you claimed something, you admitted you couldn't offer a single example.)

"And copyrighting your code isn't going to help you at all if your competition disassembles your code and creates a product based off of that. Their end product will be dissimilar enough to be safe from copyright infringement. "

But the flip side is innocent companies who create something independently, but then get caught because it infringes, even if it's not copyright infringement.

You can't have one without the other - if you say "copyright is too narrow, as people could evade it by making things dissimilar, so let's allow protection of algorithms even when independently derived", you catch the innocent. What is the ratio of innocent to guilty - are there examples where companies have disassembled code, avoided a copyright infringement case, but could be caught on software patent grounds instead?

With copyright infringement, you can have court battles about whether a company disassembled (or otherwise had access to) code; with patents, you have it being questioned whether a company merely looked at other programs.

I don't claim that copyright infringement is perfect protection, just that it's something that say the drugs industry doesn't have. I don't believe that perfect protection should exist. Musicians and authors make do with copyright infringement - they don't get to "patent" using a set of chords, or all stories about wizard schools or teenagers battling to the death. And a good thing too. Even though someone could copy someone else's ideas, and make it dissimilar enough to avoid copyright laws.

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Whether as a non-US citizen I can do anything is another matter; but that doesn't stop me having an opinion
Careful though, you can't just do anytihng. You can still get sued if a single one US person buys your stuff. Don't need to live or have an office or such in the US.

 

the debate about software patents has come up in the EU over the years.

We're so lucky having Poland in the EU. First thing they said after joining in 2004 was "Lolwut? E-Patents? You guys crazy or what!". Had it not been for them, we would be living in Patent Craze Part II here since about 10 years. Thank you, Poland.

 

Unluckily, we may still see that coming thanks to the free-trade agreement that most of the laserbrains who run this union want so bad and that really isn't beneficial to anyone (well, except to the USA). With ideas like "if an US company settles in an EU country and isn't happy with the local laws, they can sue that country for compensation" surely they'll include something like "US patents are valid and enforceable in the EU" as well.

 

Patents, not just on software, are a tough matter, and there's probably no single best answer. You will surely want to give someone a kind of competitive advantage if he develops something genuinely new. Take pharmaceutics as an example: Imagine you develop a new drug and go through clinical testing and all, investing 3-4 years and a million of currency, and then a company like Ratiopharm just says "oh nice, well thank you" and sells the drug for half the price (effectively pushing you out of business). But then again, the other extreme is that the companies holding patents sell a package of pills that would reasonably cost like 2€ for 150€ simply because they can, as they have the monopoly.

 

With software, it's even more complicated. On the one hand side, most software patents are bloody obvious once you know them, but admittedly not all of them are really that obvious if you don't know them. Applying a cosine transform or similar to an image or sound may be a trivial idea to most people. Doing something like psychoacoustic modelling, too, is pretty obvious once you think about it. But you gotta have the idea first, and it's quite non-trivial work figuring out the right parameters and to put it all into a specification, complete with working implementation and all. That's why you and me and everybody else pays to Fraunhofer. Would I prefer if I didn't have to pay? Well sure.

Then again, the software patent world is so full with "Really, dude? You got to be kidding me? A patent on multiplying two numbers?!" type of patents that you'd want to shout and kill someone.

 

It's a bit like the problem with software (movie / music) piracy. If everybody was honest and was buying their software / movies / music, you could sell pretty much every major software which now costs 300-500€ for 5€ and still be comfortably in the profit zone. CDs or movies could easily go for 2€. No need for copy protection, and no need for DRM, it wouldn't even be worth the trouble pirating the stuff.

But of course almost nobody pays for the stuff they use, and the major players selling the content have greed beyond reason, so a CD that is reasonably recent costs 15-20€. Now the relatively few who do pay get upset because they, as paying customers, are the only ones who are having DRM in their way all the time. Can't play that BluRay on your PC, can't play that CD in your car, have to watch stupid non-skippable anti-pirating commercials before getting to watch the movie that you paid for legitimately, etc etc.

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I was talking to my brother earlier about this very thing. Came up with a good idea. I think if people want to protect patents, it should be more investment required to do so. 

 

One way to do it is to shorten the length the patent can be held. Or make it so that a patent, in order to be held for a longer period of time, must be shown to be in active use (so that patent hoarders will have to use the patents they own).

 

I think the latter idea is the best idea. No one should have a right to have a patent that they are not actively using, with some impression that they are "going" to use it. 

 

The problem is no set of rules fit every scenario perfectly. Maybe it takes 5 years to bring your product to market. Since you patented it in year 1, but it hasn't been in "active use" for 4 years, that means someone else can steal it, defeating the point of the patent system. Or by 'active use' (what a delightfully ambiguous legal term! Lawyers would love that. wink.png), do you include research and development? No problem! Patent trolls research and develop stuff all the time - partially to claim that they [i]are[/i] actively using their patents, and partially to discover new patents to sue people over.

 

And what if people invent something cool, but the computational power isn't available yet? It's not in active use because it can't be in active use.

 

And no, definitely there should not be a higher investment cost (whether financially or paper-work wise) for patents. That just means big companies get them and small companies (who patents are also intended to benefit) don't get to use them.

 

The length of patents currently are not excessive (20 years). Certainly not compared to the ridiculous length of copyrights (life of the universe, plus 70 years).

Trademarks don't even expire (until they are no longer in use), and that infinite length of time is actually beneficial to the public.

 

And honestly, if there were general labs that research and patent real inventions and then licensed them, that wouldn't bother me so much. Intellectual researching thinktanks. Bell Labs (AT&T), Google X Labs, RAND corp, and so on, are good things.

It's the buying of patents and then hoarding them that I have some problem with, but more specifically, it's the patent issuers who issue dumb patents. That is the real problem. The patent system is mostly a good system. It's the gatekeepers who are doing an amazingly crummy job.

 

In contrast, copyright is mostly not a good system (just out of date with technology, too abused, and too patched and modified over hundreds of years), and is in need of overhauling. Trademarks are fine as-is (they prevent the legality of counterfeiting goods and public deception).

 

There are also occasional immoral uses of patents to exploit the public - my dad's gout medication was purchased by another pharmaceutical company, and shot up from $10 for a month's supply (might've even been 90 days) to $400 for a month's supply. angry.png I'm not exaggerating either, those were the prices! So he stopped taking his gout medication. There are other medications, but that was the only gout-attack prevention medication that actually worked very well and didn't have side-effects - so it was bought out and the price raised 40 (or more) times higher. sad.png

I can't think of a good legal solution to that though - technically, they are within their legal rights to do that, just as Apple can charge luxury prices for Apple products. It's just when it comes to actual physical health necessities and then raising them drastically after it's shown to work, that it rubs me the wrong way.

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You acknowledge the current situation is bad, you offer no solution that involves software patents without the problems, but you want are arguing against the people here who don't like software patents - I don't get it.

 

Just because I don't have a solution doesn't mean there isn't one.  I have no knowledge of the legal side of patenting or how governments work, so I'm really not a suitable person to come up with a working solution.  Does that mean that I'm not allowed to have the opinion that anyone, irregardless of industry, is allowed to have a mechanism to protect their interests?

 


You asked me what arguments for other patents don't apply to software patents, so that was one of them.

 

And its an invalid argument.  The majority of non-software patents don't have billions of dollars invested into them either.

 


Out of interest, which software patents are you referring to?

 

I wasn't referring to software patents.

 

I agree with the rest of your discussion about copyright vs patents as to which can offer the best protection.  Without some form of metric, it's very difficult to determine if there are more people who have pushed copyright infringement to its boundaries in order to get around it vs the number of people who have innocently been caught up in patent infringement.

 

If patents were made harder to obtain, then the number of innocent infringements would certainly lessen.

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Wow Servant, that is crazy! I personally have been researching natural working alternatives for common medicines myself. I do believe that all of the things that are sufficient for life have been provided naturally in this world.

But this is where we come to the patent issue. As long as people cannot patent "natural" things, then perhaps patents have a slim chance at being ethical. However, is an idea "natural?" Can an idea one person has be obtained "naturally" by another?

Are we really patenting brain waves? haha.

I say, the main reason I would want to patent my own ideas is to keep others from being able to legally sue me for using "their."

But, I am trying to make some moola too. haha
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I say, the main reason I would want to patent my own ideas is to keep others from being able to legally sue me for using "their."


Does anyone know, whether I could be successfully sued for patent infringement, if I can prove that I had the idea before the patent was issued, either because I disclosed it for example at a conference, or because I implemented it in a software product that was released before the patent was issued?

Actually, as far as I understand the mechanisms, *in theory* patents can only be issued if the "invention" is actually new, and extensive checks have to be performed to ensure, that no prior art exists. So what about all the "prior art", that hasn't been explicitly disclosed, and only exist in some "compiled" form deep inside a machine or a software product?

In other words, if I create a machine or a piece of software that is in some way "new", and I choose not to patent it, do I have to disclose it's inner workings as a safeguard against others patenting it and suing me? Edited by Ohforf sake
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But this is where we come to the patent issue. As long as people cannot patent "natural" things, then perhaps patents have a slim chance at being ethical. However, is an idea "natural?"
That is the problem, almost everything we have and everything we know "is natural" or "comes from nature" one way or the other.

 

However, these didn't just fall from the sky as a divine gift. Someone looked at some natural phenomenon and said "hey, what if I tweak this a bit, and use it like that..." and then he spent years turning that idea into something that works and is marketable. Or someone looked at a natural resource and said "hey, what if I mash up this weed and mix it like this, and pronto... a new plastic". Surely, those people did considerable work and provide something that is immensely useful to your life and to society in general, so they deserve being paid for that. And, they deserve that someone else isn't just exploiting their work without giving them credit and without giving them a share of the profit.

 

Only when people abuse this system in one of the ways stated earlier, it becomes much less obvious that they really deserve being paid. Which, unluckily, is the case more often than it's not with software patents. The difficulty is there is no good (and fair) general way to distinguish between good and abusive patents, at least not an easy one.

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Good point Hogman. I recall I had made a post about this a while ago (I need to go peek at it).

How would the industry look without a patent system? I think people would be forced to innovate, but you always have to account for thieves in every business.

The main reason laws are established , is not for the good people, but for the bad people. And even then, the bad people try eveything they can to bend and break those laws. It's the form of societies.

So, I can't say that complete abolishion is ideal in a capitalist country like America, or even in the world. The reason I say that a capitalist country couldn't do well with complete abolition is because then the discussion goes all the way back to "the value of money."

If the law makers seek to gain from the policies they enforce, then that is the first corruption of the system. Perhaps it is that "seeking to gain" for the sake of gain, that is another issue with patents, otherwise I could make it all free and open source for the "good of the public."
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Imagine creating your own game engine in 1994 and being told that, no, sorry, you can't use it, because someone else has been granted a monopoly in that arena until 2004.

There's also laws forcing companies to share their patents at reasonable fees (for whatever definition "reasonable" has). That's why Apple can't stop Samsung from making touch-screen smartphones and tablets - all Apple can do is demand Samsung pay Apple the $10 per sold device (covering some hundred or so patents).
 

No, your own investment is ruined, because someone else was granted a legal monopoly over your own creation. You didn't even copy them, but you both invented the same thing at the same time and thy were the "first to file".

Yes, simultaneous invention is a genuine problem.

If I recall correctly (someone correct me if I'm wrong), one of the rules for issuing patents is supposed to be that when faced with solving the same problem, if the requested patent is an obvious solution for that particular problem by someone with experience in that industry, then the patent isn't supposed to be issued.
 

Not only do we need the patent offices to actually reject 99.9% of applicants by applying the originally intended tests (review by experts in the field as genuinely novel discoveries), we need those same experts to agree on actually reasonable time periods. My above example is of course a worst-case exaggeration, but the point stands -20 years on software is rediculous.


I agree with everything you mention here, except the assumption that 20 years is too much. If patents are limited to genuinely original inventions, aren't just abstract ideas (so other people can use the same ideas, just different implementations), and companies are forced to license them out (in certain circumstances) at court-demanded reasonable fees... I still wouldn't know if 20 years is overdoing it or not. It'd have to be decided by experts who actually study it, guided by the government (ugh) who'd set guidelines to determine what the actual goals are (sharing of knowledge publicly, for example).
 

If the current system is doing far, far, far more harm than good, and isn't actually required, and isn't fulfilling it's original purpose, then why can't "complete abolishion" be a suggestion for a solution/alternative.

It is a possible solution (I wasn't the one suggesting that that's not an option, that was someone else's post).

As far as software goes, it's not even a bad option, considering that the United States Patent and Trademark Office didn't even want to issue patents for software (until they were forced to against their will).

The thing is, it is still fulfilling it's original purpose, but it's also being abused. The purpose of the patent system is to share knowledge publicly, so companies (and indirectly, the public) can mutually benefit. With the provision that the company that created 'shared knowledge' can still profit off of it exclusively for a reasonable duration of time. If the past 'reasonable duration' is no longer reasonable, then perhaps it should be looked at and revised.

If the patent system is removed, or made of too little benefit, then corporations will revert back to what they did in the past: Trade secrets. Innovation won't be shared by big businesses, it'd be kept secret. Employees who come up with ideas will be forced to sign contracts promising that they'll never release or share that knowledge with any future employer or the public.

I like patents better. They need to be fixed, definitely, as do copyrights, but the primary fix is just making the gatekeepers obey their own rules.
 

The bourdon of proof lies upon those who argue that these rediculous artificial monopolies on thought,

Yes, it is artificial. The monopoly is the point, actually, but it's a time-limited monopoly of a short duration.
If, in the present day, the duration needs to be shorter still, that's a reasonable thing to explore. Though, you may still want to differentiate between software and non-software patents - if someone invents a physical invention, it may actually take him 20 years to build a successful business around it before he loses the patent. I'm not going to throw out arbitrary numbers about what is a "reasonable" length of time, because I don't know the answer to that - but it is something that the government should actually have economists consider and study.

Also, it's not supposed to be monopolies on thought. It's supposed to be monopolies on original thought. That the original thinker can profit from that original thought for a limited time before it becomes the patent-equivalent of public domain.

Since it's not currently working the way it's supposed to, we should figure out why and fix it. We know why: The gatekeepers are doing a horrendously stupid job of it, which permits patent trolls to abuse the system. So we should at least give a reasonable attempt at fixing that bug, instead of recoding our system from scratch.

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There's also laws forcing companies to share their patents at reasonable fees (for whatever definition "reasonable" has). That's why Apple can't stop Samsung from making touch-screen smartphones and tablets - all Apple can do is demand Samsung pay Apple the $10 per sold device (covering some hundred or so patents).

That's a nice comfort to a small business who's being forced to endure the legal costs involved when someone decides to accuse you of violating their patent.

If I recall correctly (someone correct me if I'm wrong), one of the rules for issuing patents is supposed to be that when faced with solving the same problem, if the requested patent is an obvious solution for that particular problem by someone with experience in that industry, then the patent isn't supposed to be issued.

The "obviousness test" obviously isn't rigorously applied these days, or applied at all.
Also, we now have the "first to file" system. I can already have a product on the market -- "prior art" as it should be called -- but if you file a patent on it before me, then you get to legally extort money from me. Yey. Monopolies are a good thing(tm)!!11oneone
 

If the patent system is removed, or made of too little benefit, then corporations will revert back to what they did in the past: Trade secrets. Innovation won't be shared by big businesses, it'd be kept secret. Employees who come up with ideas will be forced to sign contracts promising that they'll never release or share that knowledge with any future employer or the public.

That's the argument trotted out by corporate software houses (who have huge sunken costs in maintaining this harmful status quo), wait....
 
We already use trade secrets to protect software innovations - most companies rely on closed-source to protect their product line, not patents. At conferences like GDC we disclose our innovations, but not our source code. How often have you implemented a new feature that you discovered by reading a patent disclosure?
A lot of the time we choose to go with open-source, because there's great value in crowd-sourcing the implementation of an idea (which necessitates sharing the idea itself). There's very few successful open-source projects that have been founded around a patent, in an attempt to amortize the implementation cost while greedily owning the thoughts behind it...
 

Since it's not currently working the way it's supposed to, we should figure out why and fix it.

Seeing the current system is so completely broken, and there's so much money involved, 'fixing it' is impossible. Getting rid of the system completely is also impossible... so we're both equally in fantasy land here laugh.png
However, debate is always occurring within a window created by the current context. The current system has the debate shifted so far into harmful territory that I would say that it's impossible to have legislators properly debate a "proper" patent system -- all they can do is bikeshed on the trivial details of a harmful system. IMHO, if you outright abolished patents, then the context would be reset and it would be possible to have a frank, clean-slate discussion about how inventors could potentially be rewarded for their work. Edited by Hodgman
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