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Weekend Watching: Patent Absurdity - How Software Patents Broke the System

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Key points to keep in mind here is:

  • Software patents are being used as weapons in corporate warfare
  • The Federal Government is handing out the patents
  • Software patents are killing innovation, not encouraging it

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The Supreme's decision on this will be huge.

WSJ Article

WASHINGTON -- The Supreme Court gave a skeptical and at times scornful reception to arguments that there should be broader patent protection for "business methods," which several justices suggested did little to spur the technological progress that patent laws were intended to promote.

At arguments Monday, several justices seemed almost contemptuous toward patents for financial strategies, risk management or teaching methods, which they contrasted with inventions such as the telephone or Morse Code that an inventor might devise in a laboratory.

That boded ill for Bernard Bilski and Rand Warsaw, who are seeking to patent a method for hedging risk in commodities trading due to fluctuations in the weather. The U.S. Patent and Trademark Office rejected their application, a decision upheld by the U.S. Court of Appeals for the Federal Circuit.

That court held that to be patentable, a business method must be "tied to a particular machine or apparatus" or transform "a particular article into a different state or thing."

The Supreme Court agreed to review that decision. But instead of reconsidering whether the Bilski method should be patented, several justices seemed concerned that the Federal Circuit hadn't gone far enough to block inappropriate patents.

The lower court had left open the question of whether the same steps Messrs. Bilski and Warsaw proposed might be patentable if they were framed as software rather than a series of equations.

"That's just saying instead of looking in the Yellow Pages, you look on the computer; and that makes all the difference," said Chief Justice John Roberts.

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patenting processes doesn't

patenting processes doesn't help society. If your a programmer, it's ridiculous that you should have to worry about whether or not your process for programming an application, is an infringement on someone's patent.

I'm not theoretically opposed to patents,

however, the system is so corrupt and broken today that we'd be better off eliminating them completely than to continue with today's system. Patents are supposed to protect innovation, but the Patent Office hands them out like candy and lets "the courts sort it out." The problem is that it costs $2 million or more for someone to fight an invalid patent. Even then, the court system picks unqualified jurors and judges rule irrationally on issues they don't understand making it a coin flip as to whether you can even defeat a bogus patent. If the patent system worked like it's supposed to work, you could probably count on one hand the number of patents that would be awarded in a year. Very little true innovation is represented via patents. Mostly, they're just weapons for rich companies to bully small companies to limit competition.

I do some programming as part of my job.

I haven't run into any of these issues before, but I would agree that it is ridiculous to try to patient "ideas" that go into software. But software can be written so that the code can't be accessed and the software itself could be patented. This would protect the "invention" without having to worry programmers about having to make sure they are not violating a patent. Anyone who would hack into the particular program unauthorized to learn the special techniques used to develop it would be prosecutable.


they don't only try (and do) to patent algorithms/internal techniques etc. they even patent "business processes" and user interface ideas and more. How does a black box help when your enemy sees (he used a 1-click-buy button, harr, harr) and attacks you on that basis, nobody needs to see the actual implementation.
Furthermore, copyright is supposed to protect original products/software etc. Copyright exists to protedt your "black box", so that nobody can copy it without your authorization or disassemble it lawfully, if you distribute your "black box" using a proprietary license. Patents aren't for the end-result (which is protected by copyright anyways, against unauthorized "hacking into" for example), they are for the ingredients used in making it.

It's like trying to patent a certain type of storyline in a book. Or like trying to patent a certain type of movie set. Or like trying to patent mathematical formulas. Or like trying to patent a business idea (not a physical/chemical scientific breakthroughs/mechanisms in use in actual physical products etc.))...

Plain absurd!

Napolitano: "We need Ron Paul now!"

I can understand this to some

I can understand this to some extent. On the other hand, patents also encourage creativity from individuals with little or no resources and invest in their ideas. Without patent protection only the big companies can monopolize and prosper.

it shows

that you're probably not a hacker(used in the good sense of the word).

The overwhelming majority of software guys (the individuals you are talking about) are against software "patents" (maybe 90%), even the most small, mid-sized software businesses are against it (maybe also 90%). Hell, even in the corporate world there are not too many fans of the idea.
There is consensus that software patents make competition more difficult and development more cumbersome and expensive, as well as a lot more risky, and that 99% of software patents are actually ridiculous (progress bars and stuff like that, or amazon's 1-click-buy, and on and on and on). Guarding against software patent "traps" is a major problem for all individuals that want to develop/destribute/market something, software patents are a giant large minefield (there are so many, you can't know them all in one lifetime), set up to destroy the small guy, to benefit those who can afford a huge patent protection pool (think nuclear weapons arsenale), and of course it makes the lawyers happy. The lawyers and patent trolls(yeah, due to software patents attacking individuals without even having "invented" something yourself (lawyers who buy software patent pools) has become a business of itsself) are indeed the number one benefactor, number two befenefactor are small folks like Microsoft, Oracle and so on who can bully competition at will and prevent interoperability and thus competition. They have the cash to drag their competition through years of ridiculous software patent law suits, just to drive them mad and hopefully out of cash.
Actually, it's quite obvious that you don't have much of an insight into the world of software, software developers and what has already happened (and not happened) because of software patents.
Your last sentence is correct, when you completly reverse the meaning.

Without patent protection the big companies (and lawyers) can not monopolize (as much) and extort (as much).

Dude, you don't have a clue, sorry.

So why do we have "software patents"? That's simple. Lawyers make laws, for lawyers. And some of the big guys (with all the $$$) collude with them.

Napolitano: "We need Ron Paul now!"

You are wrong about me

I have designed and developed software for many years. I have patents on my name and I even learned the process and patented myself. I know many small start up companies are moving forward with their ideas only because they have an ability to protect themselves against large corporations through patents. If you learn the process and patent it yourself (as a small entity), it doesn't cost much unlike in many other countries. The response below states it costs $20,000 for prior art search - may be true only if done by professionals. If you do it yourself it costs zero. Maintenance fees are also reasonable and affordable to individuals. You can always dropout if it is not worth it, which makes it public.

I think US patent laws are inventor friendly, while European, Japan and other countries are not. In these countries, the fee is so high only rich individuals/large corporations can afford to do it.

I agree with you regarding ridiculous patents and the patent process can be enhanced to improve the quality of the patents. But the idea of patents helps individuals and small businesses.

I didn't know

these differences between European/US patent procedures, thanks for clearing that up.

I used to be a fierce enemy of software patents, but once I saw this lecture (as part libertarian myself), I became more or less critical of all patent laws:

I like this Jefferson quote, which in my opinion sums it all up:
(As secretary of state, Jefferson ran our first American patent office. For him, its purpose was to promulgate inventions, not to protect them. He hated monopoly and was determined that the patent process shouldn't serve it. The peculiar character of an idea, said Jefferson, is that)
"... no one possesses the less because everyone possesses the whole of it. He who receives an idea from me receives [it] without lessening [me], as he who lights his [candle] at mine receives light without darkening me."

And sorry for doubting your credentials. :-)

Napolitano: "We need Ron Paul now!"

It actually stifles innovation.

I talked to a patent attorney about filing a patent and he told me that the minimum fee for "due diligence" is $20,000. Due diligence is important because you have to figure out if the thing you are patenting has already been patented or is already somewhere in commerce.

So consider that you want to create a website that performs what you consider to be some fairly obvious and basic functions. Unfortunately, someone has already patented your very basic function, and it cost you $20,000 to figure this out. Then you try to get a license for this technology and low-and-behold the patent is being held by a squatter. Patent squatting is an incredibly profitable industry which does nothing but buy unused patents and then sue people trying to do what the patents do. My understanding is that often they sue small businesses that have no money to defend themselves, then settle out of court.

What's worse is that taxpayer money goes to fund many patents used in the private market. It's not uncommon to find university professors using public money to create things that are patented, and that same professor's own company gaining exclusive rights to the patent. The universities love this set up because it brings huge research dollars to their schools. I called MIT about a patent paid for with DOE money and I was immediately connected to their public-relations specialist who, before I even asked any questions, began quoting all these 'studies' which demonstrated that ever since the U.S. started granting patents on technologies developed with public money, all sorts of great things happened.

I used to believe that patents and copyrights protected private property rights, but after being directly involved with them I believe they erode private property rights. It's what Bastiat referred to as 'legalized plunder.'

I had lawyers try to get me to do the same thing with software

products that I had written. The search (for what they call: "prior art") is only one step in the process and it gets more expensive. I have no problem with the concept of copyrighting a work (which is intended to protect the expression of an idea).

"An economy built on fiat money is a society on its way to ashes."

Do it yourself

If you do it yourself it costs nothing. USPTO website has a great patent search service for free. You can even draft claims by reading books on how to patent yourself. Actual patent office fees are very reasonable. You pay only 50% as a small entity.

Thank you. I'm familiar with the process.


"An economy built on fiat money is a society on its way to ashes."

Good watch

Good watch

The People's President
Ron Paul R[̲̅ə̲̅٨̲̅٥̲̅٦̲̅]ution 2012

I look forward to watching it.

Pricing should be set by the market and that includes intellectual property. Anything that has value simply because of government imposed controls has NO value in reality. If music, electronic documents, and software are so abundant and duplicable that they are everywhere, then the price should reflect that. Some try to equate this with communist ideology, but it is in reality the simple result of supply and demand and drives innovation. It would supply the most people with the most information for the most affordable price.

Money cannot be merely electronic, and I believe that neither can "intellectual property" if we are to be consistent in defense of the free market.

"Endless money forms the sinews of war." - Cicero, www.freedomshift.blogspot.com

absolutely! you're so right

absolutely! you're so right on that. a truly free market in this sense does not monopolize intellectual work. egalitarianism is natural in the free market for ideas, sounds, language etc. no one has any right to create a monopoly for their product using government as their tool belt, especially in those cases. equating that with communism is about as shallow as it gets. i would equate the bureaucracy of patenting as truly communist.

Important book on IP


Here's a quick summary by the author:

Pretty radical, but a very well thought out argument.

Thats what the free marketis for

Open-source is running rings around most commercial developers, Microsoft included.

Microsoft has a few thousand people working on the core of their operating system. Linux has hundreds of thousands. Microsoft is absolutely surrounded.

Almost all software that is deemed important by corporate users has an free analog. And the quality of free software grows over time, until it matches commercial software.

Another benefit of open-source VS commercial: Security. When you have hundreds of thousands of eyes looking at the source, to make it more secure, it becomes more secure. Much more than a few thousand can accomplish.

One problem I have seen over the past few years: Open-source projects tend to get corporate 'care takers' that develop a more capable version for sale, while the free version lags. Almost an analog of the Ruling class versus We the People.

//Here is your Friday 'code snippet of liberty':

#import Our.Constitution
namespace Paul.Rand
public static class Senate
static void Main()
Senator Rand_Paul=new Senator();
President p2012= (President) Rand_Paul;



Good one.

Use java to create the right kind of politicians.

five stars

Thanks Michael.

LL on Twitter: http://twitter.com/LibertyPoet
sometimes LL can suck & sometimes LL rocks!
Love won! Deliverance from Tyranny is on the way! Col. 2:13-15

About as good of a review of the subject matter as I've seen in

some years. If it would help put some of the patent lawyers out of business, then it's hard to imagine how that could be a bad thing. The patenting of software is a relatively recent thing. When I started writing software, it was a copyrighted product, but not the subject of a patent application.

"An economy built on fiat money is a society on its way to ashes."

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