[Discuss] more on software patent

[tmetro-blu at vl.com (Tom Metro)]

Glad to see the spirited discussion on software patents.

If you want to listen to a decent investigative report on how the patent
system in general (not specific to software patents) is broken, and
learn more about how troll companies operate, check out:

"When Patents Attack!"
http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

Also:

"The Very Basis Of Our Patent System... Is A Myth"
http://www.techdirt.com/articles/20110725/03174515229/very-basis-our-patent-system-is-myth.shtml

The above article comments on this paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610

and pulls this key quote from it:

  The theory of patent law is based on the idea that a lone genius can
  solve problems that stump the experts, and that the lone genius will
  do so only if properly incented. But the canonical story of the lone
  genius inventor is largely a myth. Surveys of hundreds of significant
  new technologies show that almost all of them are invented
  simultaneously or nearly simultaneously by two or more teams working
  independently of each other. Invention appears in significant part to
  be a social, not an individual, phenomenon. The result is a real
  problem for classic theories of patent law. Our dominant theory of
  patent law doesn't seem to explain the way we actually implement that
  law.


In regards to the RMS talk, even if you don't buy his case for the
abolition of software patents, most of his reasoning applies equally
well to making a case that any purely software invention should be
granted a substantially shorter protection period, simply because
software invention is comparatively easier. (One could pretty easily
expand on that line of thinking. For example, no need to make massive
capital investments in factories, etc. to produce a software product.)
17 to 20 years of protection is laughable. 3 years would be more like
it, though if that's from time-of-filing, and our approval process
doesn't get streamlined, it would need to be more like 5 years.


The current patent system has a measurable negative impact on my
business as a contract developer of software solutions. More often I'm
seeing clients seeking to put patent indemnification clauses into their
contracts. If such a clause is present, there is no action my business
can take to avoid liability. With a copyright violation, you are fully
aware that you are copying someone else's work, and this can be easily
avoided (and management can use tools to insure employees aren't
infringing). But with patents it is an impossible task. Even if you took
the impractical step of performing patent research on every line of code
you produce, that code is generally kept proprietary, and not patented,
and thus could be in violation of a patent published in the future, and
you'd have no prior art as defense.

The only recourse is to modify the contract, when possible, to make
liability conditional on *knowingly* violating a third party's IP, or
buying insurance.


Hsuan-Yeh Chang wrote:
> By filing a patent application and getting it published, your
> Examiner friend would have citations to reject late comer's claims.

As others have pointed out, prior art can come from just about anywhere,
and doesn't need to be another patent.


> Should the open source community started to file patent applications
> in the few decades, there would have sufficient number of references
> to knock out those what you called "obvious" patents. 

Your premise seems to imply that merely having a concept contained
within a patent application will make it easy to find by the examiners.
While having the information in the PTO's database should help, it
should be obvious to anyone who has done patent research that it can
still be very challenging to find prior art. Patents are classified into
broad categories, and with software being abstract concepts, what
categories are used and how a concept is described could vary tremendously.


> Examiner's would not even bother looking at your applications, if you 
> expressly abandon them AFTER publication at the 18th month. 

Wile apparently typical that they don't make their decision sooner than
18 months, in theory aren't they supposed to start looking at them
before then?


> The patent office has already received tens of thousands patent 
> applications for ridiculous inventions.  I believe that they wouldn't
> mind to take hundreds or thousands more from the open source
> community.

Flooding the PTO with applications that are never intended to be pursued
seems like a poor solution.

As was mentioned earlier in the thread, the open source community could
set up their own database. Even if this couldn't be funded by some large
sponsor (like IBM, for example), the "filing" fee would likely be less.
And the application could be designed better for electronic
cross-referencing of concepts, with the ability to let others tag and
link related art, and comment on the originality.

Eventually you could provide an API and have tools that semi-automate
the process of breaking down source files into "patentable" chunks,
prompting the author to fill in an abstract describing what each chunk does.

There are already several companies that build databases of open source
code to address copyright violations (for example, Black Duck Software,
who makes their database available via koders.com). A variation for
patents - though far more complicated - could be layered on top.


A better solution to the "obviousness" problem is peer review. You want
industry professionals reviewing patents from their industry, as they
will already be well familiar with the prior art and will know what
should be considered obvious. Large businesses will also find it is in
their best interest to pay employees with expertise to review patents,
as it would be far cheaper to knock out a competitor's patent at this stage.

The PTO has made it known that they'd welcome this, and I think I've
read a few times about proposals to formally adopt such a system. To do
it right, you need early public disclosure of the application. I've been
wondering if the AIA incorporates this.

Until formally adopted, anyone can volunteer to review applications
using monitoring sites like http://www.freshpatents.com/ .


> Accordingly, "patent" means "disclosure" and not
> monopoly by itself.  So, what the patent system does is that the government
> solicit disclosure of ideas from smart inventors, and award them with some
> "exclusive rights" with certain "limited time" if these smart people would
> tell the public in detail what the invention is...
> 
> To take away patent protections from all subject matter, inventors would be
> less inclined to disclose their invention.  Take blue LED for example, it
> took Nakamura 20 years of lab life to find his formula.  If Nakamura keeps
> his technology secret, I can't predict how long it would take for another
> person to develop the same thing.

The NPR piece cited above makes the point that current patents fail at
the objective of disclosure because they are intentionally worded to
obscure the invention as much as possible while also being as broad as
possible. (This is the difference between a "professionally" written
patent and an inventor's self-written patent.)

Anyone here tried building or coding something based on the description
in a patent?

Occasionally you'll see one that is straight forward, but clearly if the
objective was disclosure, the norms for patent language wouldn't be what
they are.

 -Tom

-- 
Tom Metro
Venture Logic, Newton, MA, USA
"Enterprise solutions through open source."
Professional Profile: http://tmetro.venturelogic.com/