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05.27.09

US Breeds Software Patents

Posted in America, Europe, IBM, Law at 4:03 am by Dr. Roy Schestowitz

USPTOSummary: A look at some new articles about software patents in the United States

THERE ARE some new comparisons out there which show the difference between the European and United States-based patent systems. Great risk remains however because these two might be combined in a sense [1, 2]; that’s the plan of proponents of software patents anyway. From Science Business: [via Digital Majority]

One of the fears – particularly in the software community – is that globalization of patents will mean dumbing down to the system in the US, where the bar for what can be patented is set lower than in Europe.

In the EU the system not only sets tougher standards for applicants, it’s also much more expensive to litigate here than stateside, partly because you have to fight it out in several different national patent courts, rather than in just one in the US.

IAM Magazine, which is pro-patents and litigation, shows that the US system is more patent-happy and trigger-happy when it comes to litigation (that’s where lawyers like the IAM crowd make money). Here is why, based on the experience of SAS:

Even in Europe’s most expensive jurisdiction, the UK, it is very unlikely to cost more than £1 million ($1.5 million) to litigate a case. In Germany, France and Italy you are looking at perhaps $200,000 to $300,000 at the most. In the US, the latest I saw was that on average getting a first instance decision in a big case will give you little change from $5million. In other words, SAS could litigate a case in the UK, France, Germany and Italy, probably throw in the Nordic countries and the Netherlands, and still spend less than it would cost to litigate in the United States. But even were it to cost $10 million and you won, it would be money well spent if you ended up fighting off a competitor and protecting or establishing a revenue stream.

If legal action is discouraged, how it that a bad thing? Was the introduction of patents intended to spur lawyers rather than scientists?

Watch what type of redundant software patents IBM is filing for:

IBM Wants Patent For Regex SSN Validation?

“What do you get when you combine IBM contributors with the Dojo Foundation? A patent for Real-Time Validation of Text Input Fields Using Regular Expression Evaluation During Text Entry, assuming the newly-disclosed Big Blue patent application passes muster with the USPTO. IBM explains that the invention of four IBMers addresses a ‘persistent problem that plagues Web form fields’ — e.g., ‘a social security number can be entered with or without dashes.’ A non-legalese description of IBM’s patent-pending invention can be found in The Official Dojo Documentation. While IBM has formed a Strategic Partnership With the Dojo Foundation which may protect one from a patent infringement lawsuit over validating phone numbers, concerns have been voiced over an exception clause in IBM’s open source pledge.”

IBM should know better than this. It should help the ending of software patents rather than promote them.

Wired Magazine has this short new article about the genesis of software patents (some time before I was born). Here is where we stand today:

In 2007 alone, nearly 39,000 software patents were issued in the United States.

Does this promote the creation of more software? That, after all, is the original purpose of such intellectual monopolies. This whole bubble market has truly gone out of control.

Software patent on rise

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14 Comments

  1. Jose_X said,

    May 27, 2009 at 7:23 am

    Gravatar

    Software patents are an embarrassment (just look at the example given above). They leave a dirty mark on all that participate.

    Wasn’t IBM the one that recently said that the bar for software patents needed to be raised? Any bar is too low, but I was hoping their idea of a high bar was a little higher than a regexp for an SSN.

    Roy Schestowitz Reply:

    No, IBM has many junk patents.

  2. The Mad Hatter said,

    May 27, 2009 at 9:47 am

    Gravatar

    Software patents aren’t the issue. Patents are the issue. Software Patents aren’t any worse than the KSR Patent for installing a microswitch in a certain location (see KSR vs Teleflex).

    Roy Schestowitz Reply:

    There is a level of ethical and moral degradation in each patent, but it varies depending on the area and the nature of the patent.

    Complete implementation is an example where patents are not even needed, notably trademarks and copyrights. Some argue for the elimination of those too.

    The Mad Hatter Reply:

    Yes, there are some problems with Trademark and Copyright law. One example being that non-commercial performances of a song, technically you have to pay to perform “Happy Birthday” if you take the kids to McDonald’s for a birthday party.

    As to Trademark law, again, there should be a non-commercial exemption. Some kid painting Mickey Mouse, scaning it, and puting it up on their web site is not a crime.

    Roy Schestowitz Reply:

    Speaking of McDonald’s, They patented making a sandwich (in the USPTO).

    Jose_X Reply:

    I agree. Some classes of patents are worse than others because, eg, of greater opportunity costs to society. A lot more inventors/developers will be handcuffed by a typical software patent than by a typical industrial process patent because you have a lot more people developing software. You also have greater costs because the evolution of software is faster so more useful software *per contributor* is forgone in 20 years than useful industrial contributions per such contributor.

    Roy Schestowitz Reply:

    I agree. Some classes of patents are worse than others because, eg, of greater opportunity costs to society.

    It probably also depends a great deal on who you ask. I am most disturbed (in the sympathetic sense), for example, by protesters whose lives are at stake because of USPTO-granted patents on life-saving drugs or even human genes. Then again, as a programmer, I am most focused on the harms of software patents. I am not properly qualified in biology.

    Jose_X Reply:

    I forgot to add.. because the Internet+communication, computers, and other advances have lowered costs, sped up development, increased access to credit and services, allowed more people to participate in the process, etc, arguably all patents today take a greater toll than they did decades back.

    Jose_X Reply:

    >> I am most disturbed (in the sympathetic sense), for example, by protesters whose lives are at stake because of USPTO-granted patents on life-saving drugs or even human genes.

    Well, yes, that is a whole different argument I wasn’t thinking about.

    If no one could solve problem X for a hundred years and someone did it in one year, then they might argue that it’s acceptable to allow them to prevent everyone else from exploiting the solution for a measly 20 years; however, I think a more accurate scenario is that a solution would have been forthcoming within 5 years. There are too many capable people working on important problems and feeding off each other. The one to run to the USPTO likely gained from others as much or more than they put back.

    We still can’t ignore that some types of experiments are costly and are carried out by a limited number of people; however, with the Internet, you have a huge global workforce working on almost any problem of any significance. Perhaps for drug patents a much more limited monopoly and limits on fees — if we were to keep patents around for these cases, which, as argued, perhaps we shouldn’t.

    Roy Schestowitz Reply:

    I forgot to add.. because the Internet+communication, computers, and other advances have lowered costs, sped up development, increased access to credit and services, allowed more people to participate in the process, etc, arguably all patents today take a greater toll than they did decades back.

    Yes, the same goes for dissemination of knowledge. Journals (in the printed sense, with huge libraries) become Web sites and conferences/letters can become E-mail correspondence or Internet chats.

  3. Dale B. Halling said,

    June 4, 2009 at 7:00 pm

    Gravatar

    The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. For more information on patents and innovation see http://www.hallingblog.com.

    oiaohm Reply:

    The is a bigger problem. Take the MS approved COM(Component Object Model) protocol patent. Yes MS made a new design. There is a Older design still alive in OpenOffice called UNO that could in theory invalidate the patent.

    Yet people still try say UNO is in breach of COM. That is basically legally impossible. Both are based on the ideas from 1968 titled Mass Produced Software Components.

    This is the problem how do you prevent people from getting invalid patents and blackmailing others with it. Not everyone has the funds to research out to find. Even that Openoffice copyright says 2000 the UNO design comes from a prior product that is pre 1990~. So anyone who does not know this could be tricked into pay for a patent they never should have.

    Major problem is there is no requirement under patent a law to refund in case patent is found that is should not have been applied.

    Next Monopoly bit. Opensource does not pay for anything like patents. So patents can be used to exclude projects. Patent holder is not required to put a recommend price patent in advance so people know how much they are in for when using patent. This causes the Monopoly. You walk up ask for a license and the licensor can set what ever. Favoritism is ripe in the patent world. If your local stores did that everyone would be out to kill them.

    Even worse is the use of submarine patents. By the way forbin in the country I am in. So you release instructions how to do something other people do it. 4 years latter you hit them all with patent infringement and make a profit. This is bate and switch illegal to do in any store. Yet perfectly legal to do with patents in a lot of countries.

    Roy Schestowitz Reply:

    Please don’t post identical comments in all of our posts on software patents.

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