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.
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.