09 September 2012

‘My Software, My Choice’

Choice[Note: This article has been translated into the Serbo-Croatian language by Anja Skrba from Webhostinggeeks.com.  My thanks to Anja for making the effort to share this information with the people of the Former Yugoslav Republics: Serbia, Montenegro, Croatia, Slovenia, Macedonia, Bosnia and Herzegovina. - MS]

Last week we reported the last minute backtrack by the New Zealand government, deleting a controversial provision in its new Patents Bill stating that ‘a computer program is not a patentable invention’, and replacing it with a controversial provision which still says that ‘a computer program is not an invention’, but only to the extent that it is ‘a computer program as such’.  (See NZ Government Backtracks – to Europe – on Software Patents.)

The basic idea behind this change is to import about 30 years of European and UK jurisprudence on what it means for something to be a computer program ‘as such’, in the expectation that this will allow – amongst other things – inventions implemented using embedded software systems to be patented.

Not unexpectedly, some people are unhappy with this ‘watering down’ of the proposed computer program exclusion.  In particular, a group calling itself No Software Patents in NZ has set up a site no.softwarepatents.org.nz with an online petition requesting that the ‘as such’ caveat be replaced with a clause specifying that the computer program exclusion ‘does not prevent an invention that makes use of an embedded computer program from being patentable.’

In our view, this would be a bad idea for at least two reasons.  Firstly, there is no agreed definition of an ‘embedded computer program’, leaving huge scope for uncertainty, and for any patent applicant whose application is rejected on this basis to go running to court armed with arguments and expert evidence in support of an assertion that their particular invention does (or perhaps merely ‘can’) relate to an embedded computer program.  And even if there were a clear definition today, it is unlikely – based on past experience – that it will survive the test of time.

Secondly, while the NZ debate appears to have become strangely fixated on embedded software controllers for home appliances such as washing machines, these are not the only types of software for which there is a clear benefit in allowing patent protection to be granted.

It has been our observation, over time, that those who are opposed to software patents have a very limited view of the role that software plays across a whole range of scientific and engineering applications.  Objections to patents on common web technologies, widespread operating system features, and components of extensively deployed consumer and developer applications such as word processors, web browsers and compilers, are actually quite understandable.  But the typical response to these objections – to call for the banning of all software patents, or all except for some narrowly-defined exceptions – makes no sense at all.

WHAT IS ‘EMBEDDED SOFTWARE’?

We are not sure what it says about the subject that Wikipedia’s article on ‘embedded software’ is currently just a stub – and not a very good one, at that.  It opens by stating that:

Embedded software is computer software that plays an integral role in the electronics it is supplied with.

Embedded software's principal role is not information technology (i.e. it is not about information and the technologies related to providing information services), but rather the interaction with the physical world. It's written for machines that are not, first and foremost, computers.

We suppose that what this is intended to mean is that embedded software is not written for general purpose computers.

The entry for ‘embedded system’ is much better:

An embedded system is a computer system designed for specific control functions within a larger system, often with real-time computing constraints. It is embedded as part of a complete device often including hardware and mechanical parts. By contrast, a general-purpose computer, such as a personal computer (PC), is designed to be flexible and to meet a wide range of end-user needs. Embedded systems control many devices in common use today.

However, the many and various applications of embedded systems listed in the article include:
  1. telephone switches in communications networks, as well as mobile phones at the end-user;
  2. computer networking elements including dedicated routers and network bridges;
  3. consumer goods such as personal digital assistants (PDAs), MP3 players,  videogame consoles, digital cameras, DVD players, GPS receivers, and printers;
  4. household appliances, including microwave ovens, washing machines and dishwashers;
  5. transportation applications, including aircraft and automobile systems; and
  6. medical equipment and imaging systems.
A few of the items on the above list would have been uncontroversial a decade ago, but might now raise questions as to whether they really qualify as ‘embedded systems’.  Not least among these are mobile phones, PDAs, MP3 players (the iPod is surely not merely an ‘embedded system’), and videogame consoles.

It is also now hard to distinguish an embedded system by its user interface:

Embedded systems range from no user interface at all — dedicated only to one task — to complex graphical user interfaces that resemble modern computer desktop operating systems. Simple embedded devices use buttons, LEDs, graphic or character LCDs (for example popular HD44780 LCD) with a simple menu system.

More sophisticated devices which use a graphical screen with touch sensing or screen-edge buttons provide flexibility while minimizing space used: the meaning of the buttons can change with the screen, and selection involves the natural behavior of pointing at what's desired.

Even trying to spot an embedded system by its basic hardware profile is getting difficult:

A long but still not exhaustive list of common [processor] architectures are: 65816, 65C02, 68HC08, 68HC11, 68k, 78K0R/78K0, 8051, ARM, AVR, AVR32, Blackfin, C167, Coldfire, COP8, Cortus APS3, eZ8, eZ80, FR-V, H8, HT48, M16C, M32C, MIPS, MSP430, PIC, PowerPC, R8C, RL78, SHARC, SPARC, ST6, SuperH, TLCS-47, TLCS-870, TLCS-900, TriCore, V850, x86, XE8000, Z80, AsAP and others.

There are a few on that list which you will find inside tablets and smartphones, as well as notebook and desktop PCs, and a range of general and special purpose computing devices in between.

You might try arguing that if you can run Angry Birds on a device, then it is too ‘general purpose’ to qualify as an embedded system.  But that argument will probably not hold up for long, as this YouTube video demonstrating Android-powered home appliances proves!

Not only is there no longer any clear dividing line between embedded systems and general-purpose computing, much of this change has occurred in less than a decade, and we can only guess at what might happen in the next 10, 20 or 30 years.  Perhaps we will see an increasing range of special purpose devices being embedded in the human body (pacemakers, bionic ears, and other implanted medical devices already qualify), though it is only a matter of time before people become more highly-integrated with their general purposes devices.

It seems clear that it would be a pretty foolish parliament that would pass legislation containing such a contentious, and contemporary, term as ‘embedded software’.

IT’S NOT JUST ABOUT ‘EMBEDDED SOFTWARE’

But the problem is not just that embedded software is not well-defined.  There are other types of software, including applications run on general-purpose computers, which have a strong claim to being worthy of patent protection.

Back in October last year we wrote about a UK decision relating to a computer implemented invention developed by Halliburton Energy Services Inc (see Computer-Aided Design Method Held Patentable in UK).  The invention is question was entirely implemented in software.  It did not directly control anything operating out in the ‘physical world’.  It could be (and presumably was) executed as an application program running on a general purpose computer, such as a desktop workstation or PC.

In other words, no matter which characteristics of ‘embedded system’ you might choose from the examples above, the Halliburton invention would not qualify.

Yet we would argue (and the UK High Court agreed) that the invention in question was exactly the sort of thing which is deserving of patent protection.  The court described it thus:

A computer-implemented method of designing drill bits that includes simulation of the performance of the drill bit based on calculating a three dimensional mesh for each cutting element and for the earth formation and using that to determine the forces acting on each mesh segment of the cutting element and then the forces and stresses acting on each cutting element.

It was an invention developed specifically for the mining sector.  It enabled efficient custom design of drill bits for cutting into specific rock formations.  Its output was not an actual drill bit, but a design for a drill bit – i.e. a data file containing specifications which could be used to make a drill bit.

We have some experience with computer-aided design and engineering (CAD/CAE) systems, as this patent demonstrates.  Our invention was a method of improving the accuracy with which the expected error performance of an optical fibre transmission system could be estimated via a combination of Monte Carlo simulation and analytical techniques.  The existing methods were known to overestimate performance, meaning that actual installed systems needed to be designed conservatively to allow for the additional error margin.  A better technique could reduce the amount of guesswork involved, and potentially save millions of dollars that might be spent on installing an over-engineered system.

When you read the patent – assuming you can understand the maths – it all seems quite straightforward.  However, developing the theory, the algorithms and the actual implementation to the point at which it was sufficiently robust to be deployed in a commercial product took about six months in total, and involved a team which included not only the programmers, but also a PhD-qualified mathematician, and a PhD-qualified optical fibre technology engineer. 

And having produced something which was able to produce sensible results – or, failing that, sensible and helpful error messages – no matter what the end-user threw at it, we then had to publish the underlying algorithms in our manuals!  Why?  Because the communications engineers who used the product were not willing to trust results of calculations based on ‘secret’ algorithms.  So without patent protection, there would be nothing to stop our competitors from simply copying the results of our R&D effort from our own documentation.

Our software ran on desktop PCs and Unix (Solaris or Linux) servers.  It was application software, and by no stretch of the imagination could it be described as ‘embedded’.  It was also something, we would imagine, well outside the experience of most anti-software patent campaigners.

And CAD/CAE applications are not the only software having these types of associated development costs, and requirements for meaningful IP protection.  We would not want to try to pre-empt the needs of present and future software developers in a wide range of fields, by creating specific exclusions or exceptions.  What we do know, however, from the UK experience, is that allowing patents on computer-implemented inventions, so long as they are not for computer programs as such, permits these – and other inventions which make a technical contribution – to be patented.

CONCLUSION

At the end of the day, if a business can be more successful in developing and taking an innovative new product to market, if it can be more viable on a long-term basis, if it can more effectively grow, service and expand its market, and if it can create employment and a net economic benefit, by obtaining patent protection for its key new technologies, then it should be permitted and encouraged to do so.  It should make no difference that those technologies may happen to be wholly or partly software implemented.  Arbitrary exclusions deny entire industries the intellectual property protections that are available to others.

Nobody is forcing anyone to obtain patents on their computer-implemented inventions.  And nobody is enforcing patents where it is clearly uneconomic to do so.  Not getting sued is as easy as not getting out into the market and making money, or taking market share from an incumbent market participant.

Denying patent protection to an entire technology sector denies businesses in that sector a choice that is almost universally available to other innovators.  This is not something that should be done without very good reason.  There are many software developers and engineers out in the commercial world who would like to see the abolitionists just butt out.  Patents are not right for every business, but for those cases in which patent protection makes sense and adds real value to the enterprise, developers should be crying out: ‘my software, my choice!’  In this context, the anti-software-patent activists are choice-deniers.

The debate over software patents is not going to end any time soon.  What is most disappointing, however, is how little progress has been made in understanding and communicating the complexity of the issues around software and patents in the decades since the first patents were granted for computer-implemented inventions.  Can it really be that the most nuanced discussion we can have is based upon an artificial distinction between ‘embedded software’ and ‘all other software’?  Let us hope not.

24 comments:

lightweight said...

Mark, your point above, isn't quite accurate. We're not suggesting carving out a particular kind of software (embedded software) as patentable while the rest of software is excluded. We (and Fisher & Paykel, for that matter) are saying *all software is unpatentable*. However, we're making the explicit exception that an embedded invention, which makes use of software, can be patented. The software part of it can't be. Make a bit more sense to you now?

Guy Burgess said...

Hi Mark,

Thoughtful comments, although (as you know) I disagree, in summary because:

a) "embedded software" is no more or less certain than most other terms in use in legislation anywhere - you have not given any reason why this particular term (widely used in the IT industry) is worse than any other word or phrase; and

b) regardless of any possible question over "embedded software", the European approach has *proven* problematic - in the IPTA's view, it would lead to uncertainty, confusion, and cost. Why New Zealand would want to import "about 30 years of European and UK jurisprudence" that has been so heavily criticised by the Australian industry bodies remains a mystery! (Thanks to IPTA for kindly trying to tell our Govt, but to no avail it seems...)

Re "the NZ debate appears to have become strangely fixated on embedded
software controllers for home appliances such as washing machines".

Yes it has, because the only New Zealand company to submit in favour of retaining software patents was Fisher & Paykel (washing machine company). Funnily enough, they asked for an express-carve out embedded systems very similar to the industry petition.

Re your comment: "The debate over software patents is not going to end any time soon."

In New Zealand, it has ended (in principle). All major parties are publicly opposed to software patents. The only question - albeit important - is one of implementation. The options seem to be:

a) Import proven-problematic European laws that IPTA and others have warned would be an unwise thing to do;
b) Use an industry-supported approach unencumbered by such problems; or
c) Kick the issue back to a Select Committee (or rinse & repeat, to keep the washing machine theme).

Regards,
Guy

Patentology (Mark Summerfield) said...

In my view, that is just semantics. If this is what you intend, then your proposed amendments will fail to achieve their objective.

An 'embedded invention' will often be a known combination of hardware elements interfacing to the physical world, which is only rendered new, useful and inventive by virtue of the software used to drive them. Think, for example, of an electronic fuel injection system in a car. If you reprogram the engine controller using a newly-developed algorithm to deliver more power with better fuel economy, that should be patentable. But the only thing that is new is the software, so it must logically be the software which is protected by the patent.

Adding various physical hardware elements to the patent claims, to bring it outside of the 'software' exclusion, is precisely what we patent attorneys already do to try to circumvent other attempts to exclude our clients from the patent protections that are widely available to inventors in other fields. It is, essentially, the difference between 'computer programs' and 'computer programs as such'. Tie your claim to an application in the physical world (controlling an engine, designing a drill bit, optimising a communications system) and you have a patentable invention, rather than just a bit of software.

And if you are going to allow patents for new and inventive ways of operating existing combinations of physical hardware, where do you draw the line? Somewhere, presumably, between fuel injectors and touchscreens?

Since you bring it up, if I'm honest I would have to say that the drafting of the proposed provision is pretty bad. If it were to be enacted, I will guarantee you that the first time it comes up for judicial consideration, the patentee/applicant will argue that subclauses 10A(1) and 10A(2) are actually contradictory, the court will be asked to go and look at the extrinsic record to try to figure out the intentions of the parliament, this will be completely impossible to ascertain given all of the competing views that have been expressed, and all bets will be off for what it actually means.

My overall point, in any event, is that computer-implemented inventions should not, in general, be unpatentable. What is needed is a more focussed discussion of exactly where, and in respect of what kinds of software, real problems arise, so that we can look realistically at how to address them. I am not necessarily opposed to meaningful exclusions that target identifiable failures of the system. There are also other potential solutions, such as new defences to infringement or limitations to remedies (e.g. no injunctions against software).

However, all of this 'no software patents' campaigning throws out the baby with the bathwater, and I am yet to be convinced that the vocal opponents have a sufficiently broad view of the issues to understand all of the potential unintended consequences of what they are proposing.

Mark

lightweight said...

Again, you misunderstand, Mark. You provide an example above of a changed software system for a fuel injector. You assert that the fuel injector is unchanged, but the software is altered, and this should be a patentable invention. We're saying no. It shouldn't be. That simple. The legislation explicitly states: computer programs are not an invention. If the invention is a new fuel injector which has a software component, the fuel injector is an embedded software device and can be patented. The software which drives it, however, is protected by copyright and not by the patent.

lightweight said...

By the way, Dr Mark, are you in complete disagreement with the Institute of Patent & Trade Mark Attorneys of Australia and their, well, damning statements about the "as such" wording in their letter to the NZ Commerce Minister Simon Power? You've been conspicuously quiet about that from what I can see.

lightweight said...

Also, Mark, it'd be interesting to know if you're working for any of the several multinationals, like Microsoft and IBM, who are leading the pro-software patent brigade in NZ. Are any of them paying you to represent their views in your blog?

Patentology (Mark Summerfield) said...

This is still just semantics, from a legal and practical perspective. Your proposed amendment says nothing of what would make a device with a new and improved function patentable. If the device is a sealed unit, there may be no way to tell whether its 'newness' derives from hardware improvements, software improvements, or some combination of both.

Similarly, if a patent specification describes various ways of achieving an improved result, some of which are done by hardware, some by software, and some by a combination of both, how do you decide if that is patentable?

You proposal also leads to the absurd situation in which someone can have a patent for a hardware implementation of, say, a new electrical filter design, but if they describe the same invention as an implementation achieved through software-based digitial signal processing, then it is not patentable.

And how would you classify an implementation based on a large scale programmable hardware device, such as an FPGA, within your scheme? And would it matter whether the design was developed in the form of a circuit schematic, or using a description language such as VHDL, even though the end result would be functionally identical?

The more you try to explain yourself, the more unworkable you proposal appears to be. The fact is that patent law - not to mention the reality of modern engineering - does not make the kind of distinction you are trying to draw.

Patentology (Mark Summerfield) said...

I am not an IPTA member, in part because I do not always agree with the position the Institute takes on certain issues. This does not mean that I feel any need to debate them publicly on particular points - I have a pretty good platform for my opinions right here!

Having said that, see my comment on Guy Burgess' blog, here http://www.burgess.co.nz/law/patents-bill-the-embedded-software-solution/#comment-199

lightweight said...

Clearly, then, your position is at odds with a number of kiwi IP lawyers.

Matt Adams said...

Mark,


Another great post.


The recent Supplementary Order Paper deletes controversial clause 15(3A) and introduces a European-style exclusion into the Patents Bill. I'm pleased to see that there is almost universal support for the deletion of clause15(3A). However, like you I'm a bit bemused as to the sudden focus by the open source folks on embedded software, when it is a European-style exclusion that many open source submitters asked for during the submission process.


If you look at the commentary to the Patents Bill the Commerce Select Committee considered embedded software briefly. They decided that it was too hard to draft 'legislation that would enable embedded software to be patentable'. They also decided they did not want to 'prevent the granting of patents for inventions involving embedded software'.


I don't see anything in the commentary that said the Commerce Select Committee intended to exclude all computer-implemented inventions except inventions involving embedded software. By contrast, the latest amendment in the SOP does provide for computer-implemented inventions including inventions involving embedded software. The new amendment seems consistent with the intention of the Select Committee.


The fuss about embedded software in my view is a sideshow. If there is some benefit to come out of this, it is the acknowledgement from the open source folks that previously proposed clause 15(3A) is unworkable.

lightweight said...

Heh - I'll let readers of this thread have a look at Guy's response to yours... I'm quite confident I know whose point will resound.

Name said...

but why "the software part of it can't be'? I get so confused when i read statements like these because they lack substance and clearly does not answer the question - why not?

Patentology (Mark Summerfield) said...

Thanks for your comment, Matt.

Is it perhaps that the anti-software-patent lobby feels that if they can avoid getting Fisher & Paykel offside they will stand a better chance of achieving their objective? Perhaps we should call this version the 'F&P exclusion'.

Even so, I find it hard to believe (as suggested in an earlier comment) that Fisher & Paykel would really be content to be able to obtain patents only for entirely new washing machines, but not for improved methods of operating existing ones.

Mark

Patentology (Mark Summerfield) said...

Good point. More fundamentally, I wonder what is meant by 'software'. Whatever the issues may be, they surely cannot be the same for an e-commerce web site, a touch screen gesture, and an industrial process control system. I have yet to see any opponent of 'software patents' actually define the term. This is not surprising to me. In my experience, there are no bounds to what can be achieved with reconfigurable and programmable systems in the hands of creative people. To deny meaningful IP protections to such people is to rob them of the potential rewards of their creativity. I cannot conceive that a world in which everyone is free to copy, and nobody has the option not to 'donate', can be one in which innovation will truly thrive.

This is not to say that everything should be protectable, or that IP rights should be absolute. Clearly a balance must be struck. But there is no balance in blindly repeating a mantra that 'all software is unpatentable'. It is necessary to be specific. What, exactly, should not be patentable? And why not?

lightweight said...

Shades of meaning are the bread and butter of lawyers, particularly IP lawyers... those who claim that this is a problem are either not very good lawyers or they're pushing a different barrow. I'll leave it to the reader to decide which one we're seeing here.

Patentology (Mark Summerfield) said...

I am curious -- what sort of software development do you do, i.e. what is your background, training and experience?

I don't claim to speak for all patent attorneys, software developers, engineers or researchers (though I am, or have been, all of these in my time). Sure, I write hundreds of words a week of opinion (on which anyone is free to comment here). Much of this is based on my experience, which you can read about in posts such as this one, or by reading the 'about' page on this blog. So I think it's pretty clear where I'm coming from.

So what about you? What is it about your experience that makes you so strongly opposed to software patents?

I am not baiting you here -- I'm genuinely interested.

lightweight said...

My background's pretty easy to find online. Have been a software dev since 1989 since I started university and had access to computers and the 'net. Studied computer science and maths as part of my Physics degree, and still further for my subsequent masters in engineering. Came to NZ in 1994, was a research scientist for a Crown Research Institute (CRI) developing a novel computer system (computer vision and photogrammetry) for measuring and grading felled trees in the forest. Left that job to start my own software development company (incorporated 14 years ago today, as it happens) due, in part, to my disgust in the IP policies and poor management of the CRI.

I have always been very pro sharing, and see that as a fundamental part of learning. IP can create barriers to sharing and learning. I've been a free software advocate since the early 1990s - I went to Linux full time in 1994 upon my arrival in NZ. I have written software my entire career, although I now let our development team, who are more talented than I, do most of the clever stuff.

I see software patents, as expressed in the US and EU, and increasing everywhere else in the world where the US is inflicting its legislative imperialism (e.g. via the TPPA in NZ and ACTA before it), as an unlimited liability of every company producing software. Software patents are a chilling influence on every facet of development - the mere threat of a lawsuit for infringement of a poor quality software patent (which could probably be overturned in court) is enough to keep people from undertaking development in those areas.

I am completely confident that software patents can never achieve their aim in practice - to provide an incentive for creativity - and as a result I am committed to seeing them abandoned. I believe that very very few software "inventions" are worthy of patenting, and that the vast majority of patents granted for software are invalid. Sadly, it takes someone to test this in court, and as a result, the barriers to correcting the situation are too high.

Ultimately software patents are unnecessary - my colleagues and I were never even aware of patents as we created software... not, that is, until 2003 when Microsoft started trying to patent common everyday practices with heaps of prior art right here in NZ... That, and watching promising and innovative companies overseas being demolished by wasteful patent litigation (with jury trials decided by illiterate jurors, like a roll of the dice) inevitably by market incumbents with poor quality patents. I decided I would do what I can to ensure that it can't happen in my part of the world.

Name said...

why do you believe that software deserves copyright protection but not patent protection?

lightweight said...

Because copyright is the expression of an idea, and a patent is "the idea". I believe that, as with melodies in a song or themes in a book, many pieces of software will logically use almost identical components, and like book themes or melodies, they will be invented simultaneously by many people. From my point of view, copyright's main value is that it protects the use of someone's own expression of an idea. That said, I do not support the typical current copyright terms. They're way too long.

Patentology (Mark Summerfield) said...

Thanks for sharing that. There are many things we will never agree on, largely because our experience is so different. However, we might be able to find a little common ground!

I agree, for example, that patents (and not just software patents) cannot provide an incentive for creativity. But I do not consider that this is their purpose -- and nor, I think, do policy-makers, jurists or economists. Patents provide an incentive for people and companies to invest in research & development, innovation and commercialisation, by allowing a period of limited market exclusivity over the results of those processes. While these activities will usually involve 'creativity', it is not the creativity that is rewarded, but the commercial application of innovative ideas.

I also agree with you that people need no incentive to be creative. It is in our nature to create, and many people are driven to do it even in the absence of any reward or, as history tells us, even when that creativity may be considered subversive or illegal and lead to punishment!

For much of the software that you seem to be concerned with, there is but a small gap between the idea and the implementation. The only investment required is a cheap PC and some spare time. I get this, and I agree that in these circumstances patents will often serve no positive purpose. Certainly a 20 year monopoly is vastly disproportionate to the contribution. I do not know what to do about this problem, without causing collateral damage, though I have often thought about it. My only consolation in this failure is that there are thousands of smart people in the world who have also clearly failed to solve the same problem!

There are, however, many computer-implemented inventions for which the gap between idea and implementation is far more substantial. It is trite 'Commercialisation 101' that it is very difficult to justify investing resources in an enterprise unless there is some way to mitigate the risks involved, including the risk of competition from a cheap copycat product. IP rights can provide that element of risk mitigation.

I believe that when the costs of development are high, the costs of copying are low, and/or the market for the product is small and highly specialised such that even limited copycat competition can erode the basis for a viable innovative business, IP incentives such as patents can play a vital role. There are very many software-based systems and applications which meet these criteria, although they are perhaps not the kinds of things in which you have been closely involved during your career.

To my mind the question is not whether software should be patentable or not, it is how we should distinguish between those activities for which a patent incentive is appropriate and beneficial, and those for which it is not. I expect that there are things which involve software, as well as things which do not, on both sides of the dividing line.

lightweight said...

You're right, Mark, we're unlikely to agree. The issue with software patents - and I agree with you that a tiny percentage (maybe 0.01%) represent sufficient up-front investment to warrant patent protection (although up-front investment is no justification for patent protection - plenty of utterly daft projects have lots of time and money spent on them, and deserve no protection whatsoever) - the issue is this: there will never be a fair system for granting software patents. It will always be run by people who are unqualified to judge applications, and who will always grant patents for completely undeserving applications. Those poor quality patents (which make up the vast majority of both NZ's and the US' and other jurisdictions' patents) are then a problem with which all software developers. It's like large scale manufacturers externalising the cost of their environmental waste.

Ultimately, "IP" has a cost. Patents are a cost on society. We cannot justify them for software because they are always done badly. The incumbents love them... because it helps them stay incumbent. And the lawyers love them because it keeps them rolling in work. I find them utterly unacceptable for precisely the same reasons, and for the fact that the wealth of the few comes at the expense of the many.

lightweight said...

Talking about the definition of the term is a total red herring, and you well know it, Mark. Very few of the terms in any of the proposed legislation are rigorously defined. They've be subjected to varying degrees of legal semantic game playing over the years (at monumental cost to all involved) and many of them are still quite "fluid" - it often depends on what a jury (particularly for the US jurisdiction - in East Texas) can be convinced to believe. The goal is to make the legislation legible to non-patent lawyers. If it is, then maybe some people "skilled in the art" will feel sufficiently confident enough to mount opposition to some of the inexcusably try-hard patent applications that are perpetually (but without justification) being accepted by various patent offices around the world.

Patentology (Mark Summerfield) said...

What you say would be a sound basis for policy and law-making, if it was at all supported by evidence. However, I am unaware of any reputable study to have ever shown that 99.99% of software patents are 'bad' (particularly not in Europe, where the 'as such' caveat limits patents on 'non-technical' software, such as business processes). That number is, frankly, ridiculous.

I am also unaware of any evidence to support the contention that patents disproportionately benefit incumbents. The biggest problem the US has is not abuse by incumbent players, it is small non-practising entities. And these are largely a problem unique to the US - see http://blog.patentology.com.au/2012/08/patent-trolls-as-american-as-apple-pie.html

Some of the biggest patent cases of recent times have involved small companies asserting their rights against incumbents (e.g. i4i v Microsoft).

Mark

Name said...

in theory the patent system protects inventive concept (which may be
referred to as 'idea'), in practice however inventors try to secure
strong patents by patenting expressions of a particular idea. You should
know this if you have been reading patented inventions associated with a
specific segment of an industry. There are risks in trying to patent a
generic idea that appears to be too broad or not implementable.

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