Software patents have never contributed anything to society. Software is materially antithetical to patents. You can only ever clearly observe the output of software, and in many cases it's either hard or impossible to investigate the actual method (i.e. the patentable part).
Regular patents work because they are easily** enforceable. If your competitor brings a rip-off of your machine on the market, you can buy one, take it apart, see the similarities with your own eyes, and have a case. If Meta rips off your method to apply an image filter, you better have 10 years of experience in reverse-engineering obfuscated code. Actually, don't even bother. The code runs on their servers and you will never have the opportunity to even investigate it.
The upside to all of this is that a fun, creative interpretation of this exists. Which is that if you really want software patents, obfuscation and DRM should be forbidden so that patent claims can be investigated.
**: Yeah I know that's no longer true in many cases.
> Software patents have never contributed anything to society.
this is very noticeable because the truly useful software algorithms don't get patented, they get protection via trade secrets instead (and enforce it via courts and various internal processes).
I say abolish software patents. Software copyright is good enough.
Especially recently we've seen the widespread acceptance of copyright and license laundering through large machine learning systems such as copilot and chatgpt, backed by enough microsoft laywers to prevent meaningful push back from the copyright owners. They'll output verbatim copies of what was previously copyrighted code.
If it is true that software copyright can be cleaned away in such a fashion, maybe patenting the algorithm itself actually is necessary to avoid big tech companies like microsoft from forcibly strip mining the ideas of independent creators.
> forcibly strip mining the ideas of independent creators.
this is the same argument that patent proponents had, because patents protects the little guy.
And yet, most copyright enforcement occurs via large corporations who have an interest in doing so to further some other goal as part of a strategy to gain monopoly. Patents as well as copyright is but a tool, and any tool can be more powerfully wielded if the wielder is more powerful!
The little guy is better off without copyright imho (but that horse has already bolted).
Patents protect the little guy from the manufacturers.
A patent is supposed to secure the effort of R&D without necessarily having the budget for massive manufacturing. It prevents the manufacturer from taking off with your idea and giving you nothing for it. It seperates the manufacturing cost and r&d cost.
In software, there is 0 manufacturing, it is entirely R&D. As soon as you have developed your product, its ready. Hence why patents feel so useless in software.
Also why software startups are so attractive to investors.
> Patents protect the little guy from the manufacturers.
As long as the little guy's patent can improve the process without stepping on any of the countless pre-existing patents manufacturers have accumulated. Now how often is that the case?
How well has copyright really worked for the little guy? Even when there are wins in the GPL violation suits, the payout barely covers the cost of litigation (i'm imputing the cost even if it is pro bono).
Not to mention tivoization which trivially bypasses GPLv2.
By the way, it is much easier to enforce a patent as a "little guy" than a copyright. Because patents entitle you to huge damages and are harder to evade, many layers will take complex patent cases on contingency (as long as you have a solid read on the claims) and there is a lot of financing available otherwise. On copyright enforcement, you're pretty much stuck.
any mechanism will be used by someone to protect and entrench themselves. Small or large.
The more difficult and expensive it is to use, the more it will be the domain of those with more resources, and the more the small will be defenseless.
The answer is not to eliminate copyright or patents, but rather to make them simple and easy to apply for, defend, and find. The current bar is so high it favors the big guys only, and gives them leverage against smaller folks who can’t afford to even show up to defend themselves usually.
Or eliminate it entirely, but you’ll not be able to do that because Disney, Microsoft, Oracle, and the like would murder/compromise/destroy anyone who might be able to do that.
The thing is that it probably isn't. The thing you call "laundering" is probably actually fine. The thing that people misunderstand is that copyright is written such that it never protects function. If your code is open source, then I can write code that does the same thing, and if I can't because your code perfectly encapsulates the function, it's inseparable from that function and thus isn't eligible for copyright protection at all.
> maybe patenting the algorithm itself actually is necessary to avoid big tech companies like microsoft from forcibly strip mining the ideas of independent creators
a. Independent discovery of same algorithm is very likely before 17 years.
b. Big companies abuse such systems by patenting trivial ideas.
The nice thing is that this works in both directions. Just as Microsoft and Co. can train on people's data, nothing stops the people from training on Microsoft's chatbot output.
As long as we don't get any lawsuits derailing this practice, we actually might end up fine, as there is nothing that'll allow anybody to get ahead in AI without automatically provide a mountain of training data for the competition.
If that means the end of copyright right as we know it, I am all for it.
Unsurprisingly, the "creators getting ripped off is a small price to pay for progress" stance is less popular here than when HN discusses AI-generated art.
Yes. Copyright already protects what a patent granted for source code would protect.
The problem you describe exists in both scenarios, and is resolved with enforcement. You can sneakily break the law, and you run the risk of getting caught for fraud.
> Copyright already protects what a patent granted for source code would protect.
This is not correct. Patent protects the abstract functional design, copyright protects the reduction to practice. Two implementations of the same algorithm have independent copyrights.
You see the same thing in physical engineering too. A novel chemical process is protected by patent and each reduction to practice is protected by copyright. They are separately licensable.
These are not necessarily good examples, but most multimedia encoding is patented and widely used. Companies like Fraunhofer only exist to create these algorithms and make money licensing their patents.
I think this is because you have experience with software, so you see pretty much all software patents should have never been granted, but same goes for things like hardware.
I would partially blame the VC culture for this, when they state as a requirement for funding that product needs to be patented. So engineers try to patent whatever they can and as it seems these patents don't go through any scrutiny and are approved as they go.
Yes, because there's a reasonable chance they would not have been invented (or they would have taken much longer to appear) without the economic upside of a patent. Also, a patent trades forced disclosure for a limited monopoly. The disclosure in both of these cases has been very good.
Which are all built on top of the public disclosure of these algorithms, which was required by... the patents!
Prior to RSA being patented, a lot of encryption was proprietary (and probably mostly broken), and nobody could build on top of it. Post-patent, the RSA inventors could publish details and publicize their invention, which led to the alternatives.
Yes, and look at the history leading up to this(secret algorithms with a trust me it works non-guarantee). The cat was out of the bag on pki and there was no putting it back. People built on that knowledge and developed new techniques
Umm because medicine is supposed to be about helping other people? Why would people spend billions of dollars trying to help others work through a natural disaster?
To me that's one of the worst things about modern pharmaceutical companies, they care more about making money than actually helping people.
Drug discovery is the easy part. Many of the molecules come out of publicly funded academic research. The hard, expensive part is running the large-scale human trials necessary to demonstrate the level of safety and efficacy needed for FDA approval. There is no way to do that cheaply. That's why patents are needed as an economic incentive.
In theory the government could nationalize the entire pharmaceutical industry but there is no evidence that bureaucrats are capable of reliably picking the right candidate drugs. Countries with weak IP protections do relatively little new drug development.
> but there is no evidence that bureaucrats are capable of reliably picking the right candidate drugs
I'm not convinced that the govt bureaucrats would do a worse job than drug co bureaucrats. Current studies are poorly designed, implemented incorrectly, results are cherry-picked and gamed, p-hacking lives, ... This is an industry that can't even seem to accept pre-registration.
Also, as you say, most of these molecules come from publicly funded research. Why would the group funding the first set of research (and producing more molecules than industry) automatically be bad at the second?
In all, I'm not convinced that "Drug discovery is the easy part." If it was so easy, then why don't drug co's do it, and save the licensing fees?
> Why would the group funding the first set of research (and producing more molecules than industry) automatically be bad at the second?
People have different motivations and talents. Woz is a great computer engineer and Jobs was a great salesman. One without the other wouldn't have given us ubiquitous personal computers.
On further reflection, I see your point: the "context" was drug patents & their necessity, or lack of it, for drug development.
You have to admit that that is, itself, out of context for the original post, which is strictly about software patents. But yeah, at that point it had morphed into something else.
> If Meta rips off your method to apply an image filter, you better have 10 years of experience in reverse-engineering obfuscated code. Actually, don't even bother. The code runs on their servers and you will never have the opportunity to even investigate it.
That's not quite correct. You won't get to look at Meta's source code, but you will be able to have people you designate look at it for you.
Here's what happens.
1. From what you can readily see of their product and from what they've said publicly about it (documentation, press releases, presentations at trade shows, etc) you suspect that they are using your patented thing.
2. You do some reverse engineering and/or experiments to get more evidence to support or refute that.
3. If you get enough evidence to convince a patent litigation firm that they could file an infringement lawsuit for you without running afoul of Rule 11(b)(3) of the Federal Rules of Civil Procedure [1] have your patent litigation firm file such a lawsuit.
4. Your attorneys ask Meta's attorneys to provide a copy of Meta's source code. Meta does so. Typically they do so by turning it over to their attorneys and their attorneys set up a place in their offices where it can be viewed.
5. Your attorneys can go to that place and view the code. You can also hire outside experts to go look at the code and write reports to be presented as evidence at the trial.
6. Your attorneys can ask Meta to provide someone knowledgeable about the code to be deposed, where they can ask your attorneys and/or outside experts have about it.
This will work both ways. Meta's attorneys and outside experts will get to see your source code too if it is relevant to their defense or counterclaims. For example they might ask for your source to your image filter using products that were released before you filed for your patent, in order to try to show that they also used your patented methods and you failed to file the patent early enough.
BTW, patent trials are usually open to the public. It can be quite interesting because a lot of internal details from both plaintiff's and defendant's products can come out. I once spectated at a patent suit where Microsoft was a defendant, concerning some technology they used in Windows.
Plaintiff was using information from Mark Russinovich's books and articles about Windows internals. Russinovich's books were basically the Bible for third parties that needed to know Windows internals. Microsoft had engineers who actually worked on those parts of Windows testify and they specifically described several errors in Russinovich's books.
This was long after I'd worked on anything that needed to use undocumented Windows internals, but back when I'd worked for a company that made Windows system utilities and was spending half my time dealing with undocumented Windows internals the kind of information at that trial would have been a goldmine.
I’ve always wondered. In cases like your Facebook example. What prevents Facebook from giving a different source code instead of the actual code? Like if they were using a patented code, they could in theory quickly write some new code and show that in court. Who’s going to know?
1. Plaintiff's experts will have weeks or months to examine the code. There is a good chance they will notice it doesn't match what plaintiff figured out when they were doing their pre-lawsuit investigation to determine if there was enough evidence to support suing.
2. Plaintiff doesn't just ask for a copy of the code. They will ask for things like engineering notebooks kept during development, earlier versions, and various other things related to the development of the alleged infringing product. Facebook would probably have to fake quite a bit more than just the current product code.
They might claim they don't have any of that other stuff, but if they make/keep that kind of thing for their other products that is going to look pretty suspicious.
3. Plaintiff is going to depose individual engineers who were involved with the product, and probably also call some of them to testify in court. If they lie under oath (and depositions are under oath just like in court testimony) they could personally be charged with criminal perjury.
This is not one of those things where the employer is the one that gets punished. That falls squarely on the engineer.
In practice what happens is as an IC engineer, one of the meetings in your interminable string of Zoom meetings has the firm's legal department and outside counsel on it. They're asking about something from years ago that may or may not be real, or called what they think it's called, or have overlapped your tenure at all. You have neither the incentive nor the opportunity to launch some kind of conspiracy to protect the company. You tell them what you remember about it, if anything. Maybe give them the names of other people who might know something or links to documents they might not have seen. Then you probably never hear anything about it again.
Software patents are working exactly right: if I think that my patent is infringed, I am going to the court, court checks for visual similarities and then subpoenas infringer's source code.
The binary executable is easily transformed into a 1:1 ratio assembly code. Assembly code is readable by humans, and the algorithm deducable. So the method is researchable to anyone wanting to investigate.
Having said that, I despise all patents, including software patents. The head start a company has should be enough to capitalise on RnD.
I can turn a simple A* implementation into a behemoth of self-modifying, virtualised, encrypted code that will suddenly turn into Dijkstra as soon as you try to trace its behaviour.
The time that assembly code was readable by humans is long past, and I can't afford to pay NSA-level crackers who can reverse-engineer the 60MB of executable code in the Facebook app because I have a hunch that they're violating the image processing patent I have.
Except when the binary executable lives on a server somewhere inaccessible, a locked-down device,
behind protection mechanisms like VMProtect which actively thwart debugging/dumping, etc. Software patents apply to much more than "vanilla" fat binaries.
It's pretty easy to predict what would happen in practice if this policy proposal were adopted.
An entire category of bullshit jobs would be created to write "source code" that met the regulatory requirements but had little connection to the actual code deployed in production. This code would largely be derived from the claims, and, like much patent language, be crafted to be as vague and general as possible. Most of this work could be automated by ChatGPT, as no insight is required. Another class of bullshit jobs would be created to interpret and analyze the code, as it's outside the skill set of lawyers and examiners.
Any code published as part of a patent would immediately be anti-open source, as people actually creating things would be strongly discouraged from even looking at it, as doing so would support "willful infringement." The average level of code quality would be such that nobody would want to, anyway.
There's lots that could be done to make the patent system more beneficial to society (including, in my personal opinion, dropping software patents entirely), but I don't think a code requirement would be particularly helpful.
A patent makes claims, patents should be shown to work, code is a proof of that. They are computational existence proofs. We should hold our systems to higher standards of rigor.
You are shooting something down for how it could possibly be subverted, rather than do that, how about we think of ways that it could be made less corruptible? Is this not a pro-fatalistic stance?
Not only should the patent require the code, the product should require the code to be held in escrow. And for safety critical systems, the formal checked models should be presented in a way the proves that the bits on the system were generated from the formally checked code.
Would it fix all problems? Hell no! Would it prevent some entities from innovating in the market, hell yes!
As it currently stands, you don't even have to have a working system. Corporations are effectively patenting problems, not solutions. Patents themselves are a worthless way of transferring knowledge, this is what needs to change.
I may be wrong, and overall I'm very sympathetic to changing the patent system to incentivize actually making things. That said, I think changes to policy must be interpreted in an adversarial context, assuming that people will game the system as much as possible. With this policy, patent filers will clearly be incentivized to give away as little of the store as possible. Also, determining whether the code really works, and really represents the system being protected, is just as difficult a problem (if not more so) than interpreting claims today.
I don't disagree, we should always have a critical stance and understand how the systems we build can and will be subverted against the intended design.
But that isn't a reason to not build them, and in this case, the effort is to repair an already broken system that has been subverted. If creatively deconstructing it isn't an option, we have to add more "features" and this case the added constraint of functioning code.
We can disagree all day what functioning code means, but the goal is worthy and should be explored.
How we apply policy that meets the intended goals and isn't gamed is the problem for law makers. Good thing we have spirit as a backstop and not just letter. A certain hedge fund and a billion dollars in AI and civilization could collapse.
Right now, the inmates are running the patent system, if we value everyone's ability to participate in innovation, we need a way to reduce BS patents and make them intrinsically more valuable as a form of knowledge transfer.
IMO they shouldn't. Personally I'd like for patenting a new physical invention to require a physical object to accompany it that embodies what is being patented.
But that's never been the case, why should it be now? If you forced every inventor to have to make their invention, it'd be a pro-industry burden that diminished the capacities of any smaller organizations or inventors.
> But that's never been the case, why should it be now?
For the same reasons TFA is making the argument "No Source Code == No Patent."
> If you forced every inventor to have to make their invention, it'd be a pro-industry burden that diminished the capacities of any smaller organizations or inventors.
If an inventor never made their invention, are they an inventor? IMO no, they're just an "idea guy" at that point.
In 1790, when patents were first brought into law in the United States, it was a requirement that the Patent Office be provided with a working copy of the invention for their archives.
In fact, in some cases, you DO have to provide a working copy; admittedly now that's when your patent seems impossible (like perpetual motion). Also, for plant patents (that's something only there so they can put it on the Patent Bar exam /s), I believe you have to provide a plant.
"make their invention" is the law; it's the RP in ARP and CRP. You can't claim a new antibiotic without giving the formula. 112 rejections are common in patent prosecution.
Maybe. Or, maybe such CodeGPT would become subject to obvious "does it actually work?" tests. Joe Average in the jury box might feel pretty confident saying "a Patent for an apple-peeler ain't valid if the so-called peeler completely fails to peel apples". Similar for software that fails to run, or to do anything resembling the claims.
When I was at one of the FAANGs, the corporate legal people wanted to make a patent for a recommendation system I was the tech lead on. They called me into a room with two patent layers for a disclosure meeting. In general, I have an issue with software parents, but I definitely didn't believe our work was patentable since everything seemed like an obvious extension of standard practices to me (think agents reaponding to events).
I then proceeded to spend the next hour telling the lawyers that there is nothing novel in our system, that all of the connections and features would be obvious and intuitive to anyone familiar with the trade of software engineering, that all technologies in the system are common practices, and just in general refusing to let them reframe it in legalese to make it sound like something it wasn't. I could tell they were getting frustrated by the end, but it was one of the best hours I have ever spent. I'm proud I didn't let a megacorp patent standard software practices.
I check for it every few months. If they do publish it, I plan on filing a challenge with the PTO. It has now been long enough that I don't think it will be published.
So, put it another way, you, a person with an axe to grind, decided to be completely unhelpful, because of the axe you have to grind? Inventiveness is a legal concept in the patent world, not exactly coextensive with whatever you seem to think the concept means in your head.
It sounds like they called him in to give his opinion and he did that. I don't see how that is unhelpful. An employee's job is not to ensure that the employer gets its way no matter what.
My point was that everything they were they were trying to patent was an obvious trick of the trade. They were trying to patent thing along the lines of: generate->filter->rank. It's how basically any recommendation engine works and has been described in numerous existing patents.
But I tried not to be a jerk at all. Every time they asked me about a different aspect of the system, I could just say something like, "We used standard software engineering techniques using an algorithm built in to [common language] to sort things here. It's a fairly common approach to this sort of problem." After a statement like that, the patent lawyers had very little to pull on. They'd move on to another aspect and I'd give a similar answer.
A software patent without source code (or at least psuedo code) is effectively patenting "all possible implementions of this idea". That should be considered too broad.
That's what a patent is though. Protection for the idea, not the implementation.
You can disagree that software concepts can be patented (I tend towards this view), but you can't have a patent that only protects a particular implementation. That would be copyright.
>In Diamond v. Chakrabarty, the Supreme Court found that Congress intended patentable subject matter to "include anything under the sun that is made by man." ... However, the Court also stated that this broad definition has limits and does not embrace every discovery. According to the Court, the laws of nature, physical phenomena, and abstract ideas are not patentable.
>"something that makes light from electricity"
So yeah probably too abstract to be patentable. However something like "something that makes light from electricity by passing it through a filament" might be enough to make it not abstract.
> That's what a patent is though. Protection for the idea, not the implementation.
No, you can't patent "drug that alleviates headaches", you can only patent a specific formulation, and a competitor is still free to create any other formulation that achieves the same result.
Patents are supposed to cover non-obvious invented ideas - "drug that alleviates [condition]" doesn't sound like it can be invented, since drugs are commonly used to treat conditions, so there's no new invention here. The ideas you can patent are the use of a molecule for a purpose and the method of producing it. That's already pretty broad.
> "drug that alleviates [condition]" doesn't sound like it can be invented, since drugs are commonly used to treat conditions, so there's no new invention here
It's been attempted. They invent and patent X as a "method to do Y", and then try to sue others who do Y via some means other than X.
My point was that the original description of patents was not precise enough and implied that you could patent Y rather than X.
I have never heard of people using method patents to sue over methods other than things similar to methods in the claims. Usually, the claims are as general as you can get away with, and cover a lot more than just the actual "X" that they are introducing to the market. When someone does something similar to "X" without reading the patent, they can easily be walking in one of the claim sets that has been patented in the "method to do Y" patent. Most people who want to copy something do it in a fairly unoriginal way.
Still, patent claims are never as broad as "drug to alleviate headaches" or anything similar.
Do you mean that if I had invented a "machine for airborne transportation", such as, say, a hot-air balloon, I could collect royalties on jet airplanes?
If your claims were sufficiently written and not obvious in light of the prior art, yes. In this case, your claims would have to contend with literally millennia of prior art up to the story of Icarus, and including the drawings of Leonardo Da Vinci.
This kind of super-broad patent enforcement happened with 3D printing, and is still happening with e-ink technology. In both cases, the patents didn't have centuries of prior art covering what would otherwise have been entire industries, and could protect their monopolies for 20 years.
But you can patent your formulation in a way that will encompass many other formulations that might be distinct from your preferred implementing formulation... this is a basic tenet of patent law.
Wouldn't I be able to patent the idea of landing a rocket using a reverse launch process and stabilization fins and jets, even if I'm not even capable of landing a stone? If the implementation doesn't matter than I just locked everyone else out of landing rockets for decades.
The idea is worth something but so is the implementation because ideas are generic and the more specific you make them, the more you actually define an implementation, in the physical world at least.
Your patent has to fully describe how the invention works. And if it doesn't work at all, then who cares if you own a patent for it, it's a useless invention anyway.
If your rocket does work, then yes being able to lock everyone else out of it for decades is the entire point.
But once those decades are over, anyone else can copy your idea, which has been documented for all of eternity. There's an almost endless list of inventions before patents that were never made public, and nobody knows how they worked.
Unfortunately, that's the idea for how patents are supposed to work. In the real world what we have is patent trolls.
> Your patent has to fully describe how the invention works.
Exactly, a patent can't be just for "an idea" which is intrinsically generic but rather for the actual implementation with details. Patenting ideas would probably be the very definition of an overly broad patent.
> even if I'm not even capable of landing a stone?
No, because the disclosure has to enable a person of ordinary skill in the art to practice the full scope of the invention. This is called the “enablement” requirement.
Law is about word-smithing, so apologies for this:
You patent an invention, not an idea. Section 112 says you have to identify the Best Mode of making your invention. Patents are also careful to say "in one embodiment, the invention..."
> you can't have a patent that only protects a particular implementation. That would be copyright.
Yes, you can. Claims are drafted to not be limiting, but it can happen.
“ That's what a patent is though. Protection for the idea, not the implementation.”
So in theory an evil corporation could patent popular design patterns? Can a company patent the decorator pattern?
In concept you cannot (enforce) patented sky castles.
But you may patent them.
A patent becomes worthless when it is invalidated after you try to enforce it. The enforcement proceedings are the real legal test of a patent. The mere granting of a patent doesn't prove validty. Contrary to what lay people usually expect.
The reasons for having this sort of system are mostly diplomatic, economic, and administrative, so far as a I understand.
A) The patent system is an international patchwork
B) For obvious reasons testing all inventions comprehensively is extremely time consuming. It would increase the cost to register patents.
C) It's far more efficient to let the market sort it out by invalidating patents on sky castles when someone tries to enforce them.
> For obvious reasons testing all inventions comprehensively is extremely time consuming
that's true, but the 112 section of the statute says you have to prove that you "have" the invention, with a Written Description and an Enabling specification. Examiners do make 112 rejections all the time. This merely implements the intentions of 112.
I think it's worth pointing out that 112 (and other common rejections like 101) may have more public writing about them than almost any other part of the law since every patent rejection is public record, but it's still pretty subjective at the examination stage.
One of the more interesting documents that accompany some patents is the examiners opinion as to the novelty, inventiveness and applicability of the patent.
And this was what tripped up my team for years as we tried to patent a process we used to control a machine. No matter how we tried to narrow the claims, the examiner was always able to find some obscure prior art somewhere that they could use to reject the application.
Finally, after about 3 years of trying, our IP attorney suggested we drop it.
It was probably this more than anyone else that made me realize that Patent Examiners are really, really good at their jobs and not just rubber stamps, as the software community seems to think.
While the authors post seems to try to critique a US legal issue, the auto-generated ambiguous nonsense content is kind of disrespectful to readers.
Having gone though the Patent process several times, I have observed the following:
1. The company president was primarily focused on locking down the business IP anyway possible. This also bumped the valuation by around $300k each time.
2. People will clone low-hanging fruit, and simply ignore patent trolls in places Software Patents aren't valid. Note, going after users for dimes is a bad business model.
3. The author/programmer usually solves some key feature for a business use-case, and submits the draft to an IP legal firm. First-to-file patent systems essentially get flooded with business-intelligence cloners, and novelty can become rather illusive.
4. The lawyers and business owners try to strip any sensitive information, create the most generalized abstract interpretation of the IP, and convert English into obfuscated legalese. People want to capture a market, sue savvy cloners, and seize competitors inventory which _may_ violate IP.
5. The entire Patent is basically just describing the context of how the claims section is to be interpreted, and how the IP is related to other IP class areas. Note, generally this also means only the claims section itself at the end of the Patent is actually enforceable.
6. In a global economy, the cost to enforce IP is beyond the reach of most startup budgets. Thus, overly aggressive business owners tend to go bankrupt trying to imitate a large firms policies, and discover most funding channels will give a hard "No" to chasing Patent rights.
7. The best plans don't require secrecy, offer economic incentives encouraging competitor cooperation, and punish cloners in a tit-for-tat model.
8. While technically it was only a few thousand dollars to challenge pending Patents, as far as I can tell it is a very rare occurrence due to the volume of works.
Personally, I think once source-code is published it should fall under copyright , and invalidate current/future associated Patents. =)
I would also say No Source Code == No Copyright, we should require companies escrow their software source code so that when their software becomes abandonware, users can continue development of it.
This would also get closer to a right to repair software.
Add on that No Tooling == No Copyright. Source code is one thing, but particularly for large projects or ones ... creatively abusing compiler features depending on a specific version, you're straight fucked without the build environment used.
And that's not all... there is one elephant left in the room: code signing keys. Like, what is it worth when you have the source code and the build environment, but the computer running it is locked down hard by an actually capable TEE? For now, a lot of these can be bypassed by the arcane art of power glitching, but that won't be the case forever - and some console makers, like Microsoft or Sony prior to removing Linux from the PS3, took away the incentive many elite hackers had to make homebrew possible so it's a good question if there will ever be an Xbox Series X modchip.
Something not mentioned here is that software itself is rarely the subject of a patent. Instead, it is a "computer system running software". This, I think, is a trick to get around software itself not being patentable in some jurisdictions.
I really like this proposal but it lays bare the fact that the invention lies entirely within the software itself. When the patent industry has been pretending for years that the "invention" is a hardware thing that could, optionally, use software.
>Lawyers and politicians don’t want to solve a problem; they want to make a living from it. Lawyers want to add it to their practice areas, and politicians want to raise campaign funds from it. Solving it would defeat the purpose.
Ugh, this is so true. We (US) stopped trying to solve problems after we created one of the biggest problems with the war on drugs. That was the last time we tried to solve anything. Everything else has been the quote. A debate to raise funds or add "expertise" feather in the cap so they can charge $500/hr to discuss it.
For those outside the US. America went to war on people of color in the late 70s until 2014. It’s still the primary police handbook training guide for dealing with people of color. People of color is a racist way of saying Not White. We targeted the very social and economic policies we created for the poor and disenfranchised and then had the gall to be offended when they resorted to exactly what we created. This racism against black humans has been raging since 1776 in this country. With no signs of stopping. We would arrest people of color for drugs we put on the market and gave them ridiculous prison sentences where the white guy would walk with a fine, black people would get 10 years. Anyway, rant over, it’s fucked up.
I enjoyed reading it, but I have a few comments from a (non US) legal perspective. I also shared these in the substack. I put them here for discussion.
A) One import aspect not hightlighted about the patent system is that it's intended to only verify the authenticity of a patent (substantially) if a conflict arises when the holder tries to enforce it. The checks to register a patent are comparatively minimal and formal.
B) If companies file an ARP sample dated to the time they filed the patent they have already proven that they 'built' the software idea which the patent covers. The point of the patent is then to describe the application is sufficient detail that it may be enforced.
If it is challenged the patent holder will have to prove his ARP meets the requirements of the patent. If it's too basic or the patent is too broad, the patent may well be invalidated.
C) I am curious why there is so much emphasis on CRP patents.
Are most software patents are CRP patents?
Patent applications I've been party to have included source code (maybe all of them? don't recall). I think it should be required. I'm not confident that it would actually solve a lot, but it would help.
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For software, such disclosures are particularly poor, as the October 2003 FTC report on The Proper Balance of Competition and Patent Law Policy [7] notes: “Several panelists discounted the value of patent disclosures, because the disclosure of a software product’s underlying source code is not required.”
The best counterargument I can make is that applicants would provide obfuscated or fake source code, just like the many other ways they cheat the application process.
Still better than not requiring it. I liked the point that most counterarguments are effectively arguments that the patent absent the source doesn't constitute disclosure.
> Believe it or not, many of the examiners in software have Computer Science backgrounds and are perfectly capable of this.
I assume it's still the case that you need an appropriately shaped engineering degree, which does exclude many CS people.
But absolutely it wouldn't be to surprising to see an examiner try to run the code. Even if they're not CS people they're technical and smart and would figure it out quick enough.
A good bunch of comments here tapping into the old fallacy of "intellectual property is {good,bad} except in these other domains I don't understand the problems of and my work isn't directly affected by".
I've yet to see a case against software patents that doesn't also apply to all other modern patents rather than being compared to some easily comprehensible mechanical contraptions from the 1920s.
I once talked with someone who was writing a book about (among other things) how patents delayed development of aviation in the USA so much that they entered WW I without any aircraft of their own. (Despite the fact that the airplane was <ostensibly> invented in Ohio).
Oh, to be clear, I'm not saying intellectual property is good or bad, or at least what I'm saying applies either way.
What I'm saying is that if you make an argument either way for one specific domain you should consider whether it's really an argument about that specific domain or if that's just the only one for which you thought this through.
People in tech are used to treating tech as a special case so it's worth considering whether you've really found the exception or just found out that you actually disagree with the rule. Sure, software patents seem special if you contrast them with ye olde fashioned mechanical device but that's arguing against a strawman.
I don't think they seem particularly special even then. Patenting an algorithm to be implemented by levers doesn't seem so categorically different from patenting one to be implemented by transistors.
Read the automatic windshield wiper patents described in Flash of Genius. They provide circuit diagrams and explanations of why the wipers move faster when there's a lot of rain.
And you think it shouldn't have been patentable if it instead used a microcontroller to control the wipers even though the system is doing the same thing?
Last week's article was more of an anti-software-patent screed, and ended with a vague statement about copyright. I got some feedback and realized the copyright part looked thrown in (which it was), and I took it out.
That doesn't mean that copyright isn't well worth discussing, but I haven't spent as much time on that part of the law. This week's article is more focused on a specific issue, which would make a huge difference in the patent landscape.
Consider this: if math could be patented, IMHO we'd still be in the stone age. Maybe patents made sense two hundred years ago, but these days, they are mostly used as a tool for fighting between big corps and scaring the hell out of small players.
On the other hand, if solo inventors do not know how to monetize their invention, they should give/sell it to someone who will know, not to milk the idea it for decades.
> On the other hand, if solo inventors do not know how to monetize their invention, they should give/sell it to someone who will know, not to milk the idea it for decades.
That's partly what patents are for. So a small inventor can sell a technology without getting reverse-engineered in the sales process. If they do get reverse-engineered, then there is a whole new set of patent customers who will buy the patents in order to sue over them.
A source code requirement would not meaningfully impede software patenting. The teeth of a patent are its claims, not its enablement. The premise of this post seems to be that a patenting entity would be required to disclose its actual commercial source code, but of course, were source code required, even given the best mode requirement, it would still be horseshit source code.
The best-mode requirement was pretty much neutered as part of the America Invents Act, because:
1. USPTO patent examiners normally don't inquire about best mode unless there's a pretty-obvious failure; and
2. in litigation about an issued patent, "failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable ...." (35 U.S.C. § 282(b)(3)(A), at https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l....)
I think the first software patents were for things like UI elements - the Lotus 1-2-3 design, or one-click ordering. I don't see any point in releasing code for something like that; the code is competely orthogonal to the design. You don't even need source to prove you are in posession of the invention; a working instantiation would seem quite sufficient.
Code only becomes relevant if the "invention" amounts to an algorithm. But algorithms aren't eligible for patents are they? Well, they aren't here. So ironically, if you need to provide code to support your patent application, then you've proved you aren't eligible for a patent.
Working (!) source code should absolutely be required BUT there should also be a requirement that it not be unnecessarily complicated or obfuscated. Otherwise malicious compliance would be common.
Not every jurisdiction allows computer programs or algorithms to be patented.
Having said that, a jurisdiction such as the US that allows software to be patented, already doesn't require source code as part of the patent application/regsitration/grant process.
Good luck trying to invalidate every active software patent existing as on date with this clause. Ain't gonna happen!
Thinking purely using a non legal mind trying to grasp legal concepts:
If source code is akin to a machine whose inner workings can be patented, then data is akin to a physical object. A physical object could be a machine or it could be a creation made by a machine or both. Data is similar - it can be made by software or it could be software or both.
Is this the right way to think about how the legal system views software and data?
PS I’m in the US but interested to hear how this may vary from one country to another.
Nice idea, but at some point GPT + "generate code to implement this patent", may develop plausible enough code to satisfy most Patent Examiners. I don't see this fixing the issue in the longer term - maybe a "use it or lost it" rule + much shorter enforcement period for software patents is what is needed?
While I do think every software patent I have seen fails the enablement requirement (there is a bit of selection bias there I have only looked at ones people call out as horrific), I think requiring source is a bad idea.
Something like what would come out of a clean room reverse engineering effort should be good enough.
> This is exactly what the PTO examiner would do. Believe it or not, many of the examiners in software have Computer Science backgrounds and are perfectly capable of this. It is not black magic anymore.
notwithstanding the obvious arguments that patents are spectacularly unhelpful at leveling the playing field for at least software and pharma, pedantically shouldn't it be:
Why do we even bother? Ai will cause mass unemployment among software engineers, some of whom have built the free software that ai companies now monetise, and none of this will matter.
Regular patents work because they are easily** enforceable. If your competitor brings a rip-off of your machine on the market, you can buy one, take it apart, see the similarities with your own eyes, and have a case. If Meta rips off your method to apply an image filter, you better have 10 years of experience in reverse-engineering obfuscated code. Actually, don't even bother. The code runs on their servers and you will never have the opportunity to even investigate it.
The upside to all of this is that a fun, creative interpretation of this exists. Which is that if you really want software patents, obfuscation and DRM should be forbidden so that patent claims can be investigated.
**: Yeah I know that's no longer true in many cases.