Related link: http://www.oreillynet.com/pub/a/network/2005/03/08/softwarepatents.html
This blog entry is in response to
Software Patents in the EU: A Perspective on the European Computer Implemented Inventions Directive
Like almost everything I've read on the web in regard to patents, the preceding article is full of inaccuracies and opinion masquerading as fact. Let's not throw the baby out with the bath water. A poorly implemented patent system is bad (agreed!). But the solution is to improve the patent system, not simply discard software patents. (Disclaimer: I have a patent pending on some online collaborative database software that I've designed. The patent wouldn't cover all databases or online collaboration. It is more narrow than that, but the details aren't important for the purposes of this discussion.)
Here are some points of the aforementioned article with which I take issue:
1. The authors write: "For small and medium enterprises (SMEs) and in particular, free software projects, there is much to lose."
While patents can have negative effects on the activities of some software developers, one could also argue that software patents can help protect the inventions of smaller software companies. If Microsoft was free to imitate any software without regard to patent licensing, what would prevent them from crushing anyone who invented anything novel in software?
2. The authors write: "The argument over the directive revolves around the question of whether or not we should be able to patent physical inventions that use software--such as a traffic light system--and whether or not we should be able to patent software itself. Most anti-patent groups accept that the former should be patentable, while the latter shouldn't. If it were, then inventions such as the progress bar would be patentable."
It is not accurate to say that the progress bar would be patentable. To be patentable in the US, an invention must be novel and non-obvious. Something as trivial as a progress bar might well not (indeed should not) meet that standard.
3. The authors write: "Patents were originally introduced to protect concrete and physical inventions."
Actually, patents (and copyrights) in the US are authorized by Article I, Section 8, Clause 8 of the US Constitution:
"Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"
Nowhere does it say that inventions must be concrete or physical. In fact, it says "discoveries", and it would be hard to argue that computer programs are neither science nor useful arts (in fact, they are both). With regard to copyright, the original citation mentions "writings" and not pictures, videos, and music, and yet those are still afforded copyright protection in the US. So it is reasonable to assume that the definition of an "inventor" or "discovery" should also change with the times. I believe that the Bessemer steel process, for example, was patented, even though the process is not physical but rather produces something physical.
3. The authors write: "Any type of state protectionism is a contract between the creator and society, under which society abridges certain freedoms in return for increased productivity through financial compensation."
I disagree. It is a stretch to claim that respecting the rights of copyright and patent holders amounts to an abridgement of freedom. By that argument, I should be able to steal your bicycle because not being allowed to do so abridges my personal freedom. Richard Stallman (RMS) argues that bicycles and software are inherently different, because taking your bicycle deprives you of your bicycle whereas appropriating your software does not. This is untrue, because if I choose to sell my software, I can use the money to buy a bicycle. So freely using software can, in many cases, lower the value of it to the creator.
4. The authors write: "Specifically, patent law gives inventors an exclusive right to new technology for 20 years in return for publication of the technology's specifications and for use of the technology in the monopolist's products."
That isn't accurate. There is no requirement that a patent holder use the technology. And having a patent does not make someone a monopolist (a monopolist must have power over a market, and few software patents define an entire market). Furthermore, there are exceptions to patent law. For example, under US law, you cannot patent a nuclear device, and the US Gov't can manufacture whatever they like without regard to whether it is patented (or licensed) if they deem it in the national interest. For example, one company invented a configurable splint that they wanted to license to the military. The military contracted with another vendor to manufacture it without paying the patentee a license fee. But yes, having a patent does give you some rights if someone else infringes on the patent. Regardless, the gov't doesn't enforce the patent for you. You still need to do that on your own dime. (It isn't akin to the way that I can call the police to arrest a tresspasser on my property.)
5. The authors write: "So allowing patents wouldn't lead to increased productivity, and they wouldn't benefit the whole of society; they would be a bad idea."
Huh? I don't see how that follows from the preceding text. Patents encourage investment by giving the inventor some protection against people copying his/her ideas. You might argue that invention would take place without such protection, but it is certainly up for debate. Does anyone think that the software and web industries would exist in their current state were there no financial incentives? Certainly patents aren't the only financial incentive (nor should they be) but they have a place in a healthy ecosystem.
6. The author writes: "While traditional patents were for concrete and physical inventions, software patents cover inventive ideas. An example that the Foundation for a Free Information Infrastructure gives is that, instead of patenting a specific mousetrap, you patent a "means of trapping mammals" or a "means of trapping data in an emulated environment."
This statement is highly misleading. A well-written patent application (from the standpoint of the applicant) is as broad as possible. If I invented a "mousetrap", I would be foolish to patent it as such. For maximum protection, I should patent it as an "animal trap" so that a competitor couldn't simply claim that his version trapped rats instead of mice. Likewise, if someone patents a gun, they don't patent the gun for a limited target, they try to patent it for all applicable uses. That is why patent applications read as broadly as possible. This is not limited to software patents.
7. The authors write: "This is not appropriate for software development, where innovation occurs rapidly, can be made without a substantial capital investment, and tends to involve creative combinations of previously known techniques."
Innovation occurs rapidly in many sectors. There are thousands of patents that apply to bicycles, which have been around for well over 100 years. Some software development takes huge capital investments (or the equivalent in time). The fact that people are willing to write software for free doesn't mean I can develop software at no cost (open source developers tend to write software to meet their own needs, not that of some company's business plan). Furthermore, "creative combinations of previously known techniques" are generally not patentable or difficult to patent at best. By definition, if the techniques are previously known (or at least known to the patent examiner), they are not patentable. Even the patent applicant has a fiduciary obligation to reveal known "prior art" as it is called. Then, the applicant must show how the prior art doesn't apply to the new invention and/or how the new invention is a non-obvious application/combination of prior art. Regardless, even if such a patent were granted, it generally affords very narrow protection for a very specific use.
8. The authors write: "For SMEs (who make up the majority of the industry) and free software projects, patents on pure software would be a disaster."
On what basis do you make that claim? The US offers software patent protection, but the industry is not a disaster.
9. The authors write: "But for some big businesses, they are a lucrative prize."
That is true. IBM makes a lot of money licensing their patent portfolio (several billion $). But there are many lucrative business prizes. Software patents is one that has not slowed software development in the US as far as I can tell. Are you seriously claiming that software developers do a patent search before deciding whether to use a particular technique? It simply doesn't happen that way in reality.
10. The authors write: "With our economy increasingly dependent on knowledge, there has been a large movement towards increasing protection on information with copyright, patents, trademarks, and other legal means, misleadingly grouped together under the term "intellectual property." "
What is misleading about that? And, BTW, you mean "trade secrets" not "trademarks". Trademarks have nothing to do with intellectual property. And, FYI, the US gov't offers no protection for trade secrets. Anyone who can discover them without breach of contract or other illegal activity is free to use a trade secret once it is no longer secret.
11. The authors write: "Patents are another way for some big businesses to "protect" software in their interests."
Patents are available to small businesses as well. This isn't poliitical payola we're talking here. If I recall correctly, some of the US patent filing/application fees are actually cheaper for small businesses.
12. The authors write: "Though there hasn't yet been a concerted attack against free software using patents, there have been many attacks on SMEs. If any big business needs to remove competition and is failing to do this by beating them on price, quality, or free licensing, then they can simply attack them with their patent portfolio."
This is a very specious argument. If a company is not infringing on another company's patents, then they can't be easily "attacked with a patent portfolio". If a company is infringing on another's patents, then why shouldn't the patent holder be allowed to recoup its investment without being undercut by copycats? You're implying that every innovator is bludgeoned by a big software company. That simply isn't true. (I'm equally suspicious of companies like Microsoft that claim they lose billions to piracy, because most of those pirates wouldn't ever buy the software.)
13. The authors write: "Even more worrying are the so-called "patent trolls" like Acacia Technologies, which "develops, acquires, and licenses" patented technologies, using them to extract licensing fees out of software developers, but who do not actually produce any software. The company is opening an office in Europe in the spring with the intention of demanding royalties on patents."
This would seem to be the great equalizer where a small company would be able to enforce its patents against a larger, well-financed company. Why should Acacia be expected to produce software? They're not a software company. That is like calling a banker a troll because he underwrote a software company's IPO without creating software.
14. The authors write: "Since software, especially free software, is usually based upon a huge number of sub-programmes and ideas taken from other programmes, it would be extremely difficult to avoid patent infringement."
The fact that programs are often based on earlier work is a testament to the thriving ecosystem that has developed. Many patents have been around long enough that the patent protection has expired, and they are therefore now in the public domain. I don't understand what makes you think you have an unfettered right to take ideas from other programs without the inventor's consent. First of all, the vast majority of software development is not patented. If you can demonstrate that the "invention" existed before the patent applicant invented it, then it is "prior art" and the patent should not be granted. If it has been granted, it can be overturned. The trouble is that patent examiners are not familiar enough with the prior art. Therefore, I'd recommend a public comment period and/or a large public prior art database to facilitate stricter standards for the issuance of patents. IOW, there are ways to fix the system without trashing it altogether.
15. The authors write: "However, under the U.S. system, SMEs have been restricted due to large companies building up patent portfolios that they use to reap billions in licensing revenues from other businesses."
Unless the licensees are using the product to make money, they probably aren't bothering to license it. Can you name a single open source developer paying licensing fees? Why shouldn't other businesses pay for the right to use another companies software? (BTW, most large companies cross-license portfolios rather than paying large fees outright.)
16. The authors write: "The idea of selling products over the Internet has already been patented in the U.S., and Amazon used its "one-click buying" patent to famously sue Barnes & Noble in the late 1990s."
Without exception, every time I've investigated these public claims, they turn out not to be an accurate picture. To my knowledge, no one in the US has paid any licensing fees for selling products over the internet. I'm sure there are many patents that "sound" like they cover internet commerce but are in fact much more narrow in scope than you describe. But many of these are so-called "defensive patents". A large company will apply for a patent to avoid having some other company claim they infringed. But everyone in the US still buys and sells stuff on the internet without paying licensing fees. (You find much greater limits caused by, say, taxation than software patents.)
When a company tries to enforce an overly broad patent (which is rare), the whole industry gets in an uproar, prior art comes out of the woodwork, and the would-be patent enforcer backs down. So it simply is not true to suggest that whole segments of software development are being hijacked due to patents.
The one-click patent dispute was very specific (it wasn't as broad a patent as many public commentaries claim) and Amazon was merely trying to protect its turf against a "me-too" competitor. Why shouldn't Amazon be rewarded for innovation? Why should B&N be rewarded for merely following everything its competitor does? You might argue that Amazon shouldn't be given a 20-year head start, and I agree. A software patent term of, say, 3 to 10 years might be better. But it really depends on the technology. Some take much longer to take hold.
17. The authors write: "Examples of currently granted European Patents are EP803105 and EP738446. These patent the idea of selling objects over a network using a server, client, and payment processor, or using a client and a server. In other words, these are patents on selling products over the Internet; clearly a lot of software would infringe on these overzealous patents."
I haven't examined those patents, but if they are overzealous, that should be addressed by the patent granting process, not by throwing out all software patents. By definition, a patent should only be granted for a very broad thing if that thing is new and non-obvious. Selling things over the Internet seems pretty obvious, and unless they applied a long time ago, it certainly isn't new (at the time of the application). There are differing rules in different countries as to whether protection goes to the "first to invent" versus the "first to file."
18. The authors write: "The time and money spent on patent filing, prosecution, maintenance, litigation, and licensing (which SMEs cannot afford, and which have caused many to fold or be bought out) could be better spent on product development and research leading to more innovation."
Well, you could say the same thing about advertising or any duplicate infrastructure. By its very nature, competition is inefficient in the short term for increased efficiency (allocation of resources) in the long term. Lots of resources get wasted while multiple companies compete. The goal is to maintain the appropriate amount of incentives. To some, patents hinder incentives. To others, patents provide incentive.
19. The authors write: "Surely, software companies would prefer to live with the pressure of having to improve and innovate constantly instead of having to deal with software patents?"
Um, why would any company with unique intellectual property prefer to constantly give that innovation away to competitors for free?
20. The authors write: "This is how it works under copyright, which already prevents competitors from merely copying software. This is also how it has worked up 'til now, and we have managed to develop the Internet, operating systems, and other software without patents."
Well, copyrights and patents are two entirely different things. If I invent some cool software application, without the protection of a patent, you can copy its functionality verbatim as long as you don't literally take my code. Patents offer protection of the idea and not just the implementation of that idea. Yes, many things have been invented without software patents in Europe, but many things have also been invented in the US despite (or perhaps because of) software patents here.
21. The authors write: "For the free software community, which eschews patents both on pragmatic and ethical grounds, they represent an even more worrying threat."
Some people consider it unethical to eat animals. Doesn't mean I'm planning on becoming a vegetarian. So please don't imply that anyone in favor of patents is unethical.
22. The authors write: "Free software can only guarantee its safety in an environment without patents, in which the only other threat is copyright infringement, which is easy to avoid--just don't copy proprietary code."
It isn't the obligation of inventors to guarantee the future safety of free software development. The problem is that the original premise of a patent was that "If Bob didn't invent this today, no one might ever invent it, so we better give Bob a patent to stimulate innovation." Frankly, in software development, an idea might come a year or two later without patent protection, but there are so many people working on software, that almost any insight is likely to evolve from the community. Patent law tries to account for this by not allowing patents for something that is "obvious to someone skilled in the art". But obviousness is a constantly moving target. Many things are obvious today simply because someone already invented them or something similar. I think there needs to be a higher barrier for "non-obviousness" although in my experience (applying for a patent in the US), the barrier is pretty high. The patent examiner bascially was arguing that if you take five existing patents in concert, they "anticipate" (a legal term) my invention. My reply was "Well, no one else was doing it, so it couldn't be that obvious."
Lastly, what do you do when software can generate something in the physical world, such as software to build a 3D model/prototype? I don't think you can make an artificial distinction between physical inventions and "pure software." I'm not saying these are easy issues. For example, some people are patenting medical techniques, such as a particular way to perform surgery. Maybe the solution is to have a patents rights clearing house so that a known fee could be paid to license a particular technology, similar to the way someone can license a song for a move soundtrack.
But I think software patents have a place. It is a matter of getting the implementation right.
What do you think?
Comments (17)
Read More Entries by Bruce A. Epstein.
After 4 years let's see the progress.
I stopped reading at this sentence:
"It is not accurate to say that the progress bar would be patentable. To be patentable in the US, an invention must be novel and non-obvious. Something as trivial as a progress bar might well not (indeed should not) meet that standard."
And the "non-obvious" patent.
http://www.patentstorm.us/patents/7415666.html
4 years, more patents :(
Bruce replies
Bruce,
I'd like to see you do a point by point reply, to the rebuttal of your article posted by Jonas Maebe at http://wiki.ffii.org/Epstein050309En
I would be interested to hear your thoughts.
Bruce you should have used protection before, not after showing them your idea
Bruce,
You claim you need the patent after showing somebody your idea - this makes it protection in the sense of an morning-after pill rather than the comdom a sensible person would use to protect themselves.
There are NDA's and 'business in confidence' protection you could have and should have used.
Now because of your mistake, other more able developers who will likely reimplement your idea a thousand times without any knowledge or care of your 'groundbreaking state of the art' idea have to step over the patent mine you have left in place.
I'm sure they'll all want to thank you for your innovation, just as I'm sure that a few days work for any programmer worth their salt deserves a 20 year monopoly.
Perhaps you should research intellectual property law a bit before you make these decisions and statements.
As much as programmers like to solves problems we don't like to jump through hoops because of other peoples stupidity. PNG was written through necessity - if GIF wasn't patented then we could have 1 file format that worked well and is supported (IE still doesn't support PNG) rather than 1 well supported but broken and no longer developed format and 1 badly supported but developed and superior format.
Having to work around every software patent will become harder and slower, its bad enough that something novel and nontrivial in 1999 will be tired and trivial by 2001 and that patents still last 20 years, its worse that every software patent so far has been trivial with the exception of Public Key Compression - but that of course had prior art and so wasn't novel. It was also pure mathematics and so shouldn't have been patented.
Finally when you think your ideas are so important that you deserve a 20 year monopoly, have you considered their are surgeons who have great ideas and innovations, yet they don't patent them and with good reason. Surgeons innovate, and they aren't all starving. They get paid to do their job, those that are really good have a huge waiting list. The same applies for developers - Miguel de Iza, Linus Torvalds, Andrew Tannenbaum, Tim Berners Lee. All release their great ideas for free - all are gainfully employed.
Its unreasonable to patent a way to stitch or cut, but it is reasonable to patent a device that will cut or stitch that way. In the same way its reasonable to patent a machine that builds widgets but its not reasonable to patent a program that processes information about widgets.
As Bill Gates himself said - if people had patented the Internet, The World Wide Web, basic encryption, SSH, RPC, Networking, etc we would be waiting until 2040 for all the patents and their deriviatives ran out to do what we do now - and he's somebody whose company patents tens of thousands of things every year.
I hope that you will see your mistake. I really hope you will realise the damage software patents do to everybody. And I hope that happens soon.
Bruce replies
"That is because there are an inordinate number of software developers for whom money is not the primary goal. This turns the wisdom of the patent system on its head, as the patent system assumes a profit motive."
A lot of companies object to software patents exactly from a profit motive. See e.g. this account of IRIS software, an innovative Belgian SME (you may even already have heard of their OCR software and hardware).
Sure, there are innovators who have earned money with the patent system, but the question is whether that compensates all the money which has been lost due to it (especially in the software development field). Due to the high transaction costs, a lot of money simply disappears from the tech sector for each patent license and litigation case.
Your belief in the patent system is touching (and you're definitely not alone in that), but you can't design economic policy just based on a gut feeling or on some utopian view on how things should work. The patent system has proven it simply doesn't work for covering mathematics and the like (implemented on a computer or not), if you really want to offer some sort of monopolisation for that kind of stuff you should look at alternatives to the patent system, with different incentive policies.
And I would like to hear where I misinterpreted or misrepresented your arguments, then I can adapt my answer. I believe I have enough evidence to back up what I say without the need to misrepresent what people who do not agree with me say.
Bruce replies
Hi everyone,
I've been out all day and missed the fun. I'd go through point-by-point where/how I feel my statements were misinterpreted or misrepresented, but I have neither the time nor energy.
I agree that software development would likely progress perfectly quickly without patent protection. That is because there are an inordinate number of software developers for whom money is not the primary goal. This turns the wisdom of the patent system on its head, as the patent system assumes a profit motive.
I develop plenty of software for fun, but I also develop some software for profit. No one has yet responded to the question: "How can software developers of any size defend their business if another company is free to copy every innovation?" The answer seems to be "Well, software businesses should not be defended, everyone has a right to everyone else's software."
I agree that the patent system in the US is badly broken. I confess to not knowing anything meaningful about the European system. In the US, the system is funded by the patent applicants. It doesn't cost the taxpayer anything (although one could argue the costs are passed onto the public in higher prices).
Yes, the patent system primarily increases the income of lawyers, but it has made a tidy penny for inventors and investors as well.
I suppose I object to being painted as an extremist. I am not. I'm not defending the one-click patent. But I'm not attacking it either. I read through that patent, and it isn't as obvious or trivial as most people who haven't read it assume it is. Yes, without Amazon, someone else probably would have invented it. Again, this is the problem with the patent system--something is considered non-obvious even if it would likely appear in the near future. But one can nevre judge that after it in fact appeared. Everything is more obvious in retrospect.
I don't think it is impossible to fix the patent (or design a proper one). I think we need something that is accurate, protects programmers from "patent harassment" while doing bread-and-butter work, and protects truly innovative ideas. When the company that owned the GIF format demanded licensing fees, the industry came up with PNG format. That is the way the world should work. Innovators should be rewarded, but the industry should have an option to reject outrageous demands. Windows isn't popular because Microsoft has patents. Windows is popular because people choose to buy it and because Microsoft used unfair business practices (and I'm a vocal critic of MS, actually, so I'm not sure why people think I support them just because I'm in favor of patent protection if properly structured).
Anyway, I've started to bore even myself. I am a SME in favor of patent protection for *some* software. I wasn't claiming to speak for everyone in the world. I applied for my patent because after approaching a mid-cap company about it, they said, "Yes, we'd love to incorporate your ideas into our next product with no payment or benefit to you." So I thought a patent would be my best defense to dissuade a company from appropriating the idea wholesale based on my disclosure of it. The patent is still pending. It may never be approved. I hope it is. I'll let you all know how it turns out. (For the record, I've invested about twice as much in software development as in legal fees. Not a good ratio, but caused by the fact that lawyers are more expensive than programmers.)
But will they actually work?
There are two problems with this :
Firstly that 'the people who come up with smart ideas should recieve appropriate monetary rewards', and secondly that there software developers will starve if their 'ideas' aren't "protected" with patents.
The first is a myth - a very small number of people with smart ideas ever receive appropriate monetary awards.
This is because there is a huge barrier to the success of a smart person with a good idea, from the lack of capital to the abuse of monopolies, to business disinterest in big ideas to the lack of equally smart people with capital to back the good ideas.
Also as a programmer it is your job to have good ideas and solve problems well and innovate for the success of your business. For this you get a salary, a nice computer to work on (if you are lucky), some decent collection of books (if you are really lucky) and maybe some training. If you are one of the lottery winners in employment you will get a bonus or profit-sharing and get paid trips to confernces. Of course you can get all of those without being smart or having good ideas (although they can help).
The Second has been 'inevitable' since we started moving away from the mainframe or releasing open source software or shareware or software piracy.
Software piracy has made Microsoft rich, giving away open source software has made Redhat, Mysql, etc rich. Joel Spoelsky isn't a starving programmer yet I can try out his product and see its source code and he has no patents.
The only company I worked for that patented something went broke. The patent was a sign they were thinking too little about the business plan and too much about impressing the wrong people in the wrong way - which was the case and why it failed.
If you think your software patent will have any impact on your career or the health of your company you are mistaken. Microsoft or any company could steal your idea and you'll settle for a pittance rather than fight them in court (better people with better ideas and better cases have done so).
But will they actually work?
I note that your approach to Software Patents (like some of the Free Software groups who take the opposite tack) is essentially ethical. That is, in your ideal world where laws actually achieve, and only achieve, the effect they publicly profess to be seeking, the people who come up with smart ideas should recieve appropriate monetary rewards. Your several references to the poor starving software 'inventors' having their ideas (and their bikes) stolen by bad people makes this clear.
However, you make no clear clase that, in practice, any type of software patent will actually be of benefit to anyone but large multinational companies and their armies of lawyers.
That intimidation of small businesses, misappropriation of others' hard work by people playing the patent game and other costs accompany patents is a simple fact. The big question is whether the cost outweigh the benefits or vice versa.
another problem with your rebuttal
Bruce,
you claim that the software patenting in the US is not doing any harm, yet the US economy and japanese ones are growing slower than the UK which has no software patents - see http://www.theregister.co.uk/2005/03/09/intellect_market_predicts/
.
The fastest growing IT sectors are china and india because they are not encumbered with the much higher costs of IT in an litigous economy and where Large Corporations can squash innovation with their armies of lawyers and portfolios of patents.
good vs bad
You make good points and in an ideal world things are indeed as you describe.
But the world isn't ideal and the patent system (both in the US and in Europe) suffers largescale abuse by companies large and small who exploit weaknesses in the knowledge of patent examiners and loopholes in the system to get exceedingly broad and vague patents passed and then enforce them (often years later) in scenarios completely unrelated to their original business.
The victims of such claims often either don't have the resources to battle the claim and are destroyed (go out of business) or more frequently the victims give in to the extortionist claims and pay huge sums in assumed damages in order to avoid being taken to court and potentially suffering even more (judges and possible juries are no more experts than are patent examiners).
You bring up the one-click patent as an example of a patent that was a good one. In fact it was not as the system was NOT non-obvious.
The Euro system will go further than the US system in that even more will be patentable than in the US. Indeed here someone most likely could go out and patent something like the idea of a progress bar without giving any specific target uses. In contrast to what you state patents were intended to be granted on specific applications of specific technology, if they no longer are such but in fact are granted on sweeping ideas without any specific application given that only shows the degeneration of the system.
When Sikorsky patented the helicopter he couldn't patent "a device for flying which has the ability to at will take off and land vertically without the need for a prepared runway", today he could have patented it like thus without any further specification.
Mind I'm all in favour of having a patent system in order to protect the rights of inventors. But in its current form the system has gone from a system that protects the rights of inventors to a system that protects the income of patent lawyers and specialised firms whose sole reason for existence is to extort money from unsuspecting people for infringing on overly broad patents.
Your rebuttal doesn't stand up bruce
Come one then Bruce, lets see you respond to facts and somebody who actually understands the problem.
For instance if SME's benefit from software patents why have Organisations representing half a million and eleven million stated that software patents will harm small to medium business?
Why have several major Banks and Economic writers and professors said the same?
Why are the only organisations supporting software patenting in Europe representing Large Corporations (including convicted monopolists) and Intellectual Property Lawyers.
As for the ammount of developer hours in research and development required for a patentable idea - you are clearly mistaken if you think it compares to any kind of real engineering. Do you have to meet the rigurous tests of structural engineers, chemists, biologists and 'proper scientists' who deserve patents? Do you even have unit tests or follow the basic rules of software engineering?
The barrier to entry to the patent system is low for ideas and high for cash - you can patent software that you have spent 30 minutes thinking about and most software patents have 100 or 1000 times more money and time spent on their application, management and defense than on their research and development.
Look at how microsoft and IBM can shovel out patents by the day - the only thing slowing them down is the legal work. Do you really think each of their patents took years of r and d?
Do you really think that amazons one click and gift sending ideas (they are ideas, not technical inventions and so should never have been patented) deserve patents or took more than a few minutes to think up. Both are 1% idea, 10% implementation on their own systems and 90% litigation and lawyers.
Small to medium businesses (which make up 90% of employment and about the same proportion of GDP in europe and probably similar in the US) don't have the money or time to patent what they do let alone defend them.
Do you have any facts to back what you say?
It seems you lack any facts and understanding of the software industry.
Do you really think you could defend your patent in court if a company with bigger pockets decides to use your 'novel and groundbreaking idea'? I doubt it - can you name a single small company that has successfully defended a software patent against a bigger company.
Small companies cannot afford the litigation costs of patents - particularly when companies like microsoft can assemble a portfolio of patents that you are almost certain to be infringing in a matter of weeks.
And that is just the argument against the myth of Patents benefitting small businesses and innovation.
I very much doubt your software technique merits a patent at all. It will by its nature be deriviative of many things before it and it certainly would not qualify as an 'invention' under UK and EU law. (The U.S. changed the rules years ago to allow patents that no smart country would ever want).
Perhaps you should read the amended patent directive, it would (I hope) disallow your patent and this is a good thing that will benefit everybody.
I for one don't have the time or inclination to check what every misguided individual in the US, EU and Japan has patented for themselves before writing software and don't plan to. I very much doubt your patent would stand up to due dilligence as you clearly don't understand how much prior art there already is in both the the US Patent System and the public domain already.
Patents and innovation
Huh? I don't see how that follows from the preceding text. Patents encourage investment by giving the inventor some protection against people copying his/her ideas.
Can you post proof with hard figures that patents encourage investment? I have asked this question endlessly on other boards and have yet to receive a reply.
In fact, read just one paper, by the economist Bronwyn H. Hall at the University of California at Berkeley 'Business Method Patents, Innovation, and Policy' (where she discusses software patents, as no non-trivial business method patent has been granted which does not rely upon software). You see the conclusion: "Broad evidence that the patent system encourages innovation always and everywhere is hard to come by. When innovations are incremental [such as with software] and when many different innovations must be combined [such as with software] to make a useful product, it is less obvious that benefits of the patent system outweigh the costs."
Or how about the Journal of Economic Growth, 2004, vol. 9, issue 1, pages 81-123:
"Furthermore, patents affect the allocation of R&D resources across industries, and patents can distort resources away from industries where they are most productive."
Some 95% of software patents are held by large corporations. They will admit that they are used defensively and that it is time to market, marketing, customer service, meeting customer expectations, all the classic stuff that gets them their edge and that patents generally, are not used for innovative purposes and are costly. This is precisely where the SMEs are at a disadvantage.
The article is about software patents in the EU.
Our laws are different from the US. So is our "software industry". We have a few big players (SAP et al) and many small companies that get along just fine without patents. Not to mention the hordes of F/OSS developers who are quite unhappy about the prospect of getting sued.
Innovation does just fine over here. We don't need protection for it.
Refutal
I've posted my comments on this article on the FFII wiki, since I don't have a blog and it was a bit too long to post it here.
just the facts.
I'll restrict myself to a few of the verifiably false statements in this article:
--We don't just have to look at the Constitution to look at what is patentable; we can also look at Jefferson's writing, since he had a major hand in both. The law he wrote (now 35 U.S.C. Sec. 101) was in reference to "a new and useful art, machine, manufacture, or composition of matter...". You and the entire software patent industry are relying heavily on the `art' part of that statement, but there's clearly a heavy leaning toward physical objects there. Jefferson goes further in his opposition to patenting ideas in private writings: "It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property."
--You write that "Patents offer protection of the idea and not just the implementation of that idea." That's how it's often characterized, but in the spirit of Jefferson, this is false. Here's the most direct quote from a relevant case would be from Gottschalk v Benson, a Supreme Court ruling: "It is granted that one may not patent an idea."
--Trademarks are a type of intellectual property by any standard definition of the term.
Gulf between you and the authors
I think I went off on a tangent above and need to distill my post some more.
Fundamentally, the patent issue comes down to what purpose patents (and other IP protection) serve.
1. If the overall goal is the same as that in the Constitution - to promote the sciences and useful arts - patents are desired only as long as they accomplish that goal. If patents get in the way of the goal above, there is no reason to have them and waste public dollars paying people to grant, catalog, and review them. In my example above, patent nonsense definitely got in the way of our intent to do original software design and pedagogical research.
2. If the overall goal is to establish a property right and allow people to protect their ideas, then even a flawed patent system is preferable to none. However, in this case, don't be surprised when people play speculator with respect to ideas without developing those ideas. It's simpler to patent an idea, sit on it, let someone else unwittingly do the heavy lifting, then extort license fees.
I personally come to the patent question from the first perspective. It seems that you're coming from it from the second.
There's also the question that given a perfectly good patent system, can we trust people to participate in good faith and not game the system. If I had faith that we could implement the patent system you have in mind, I'd probably support software patents. However, I don't think that we can get anywhere close to that optimal patent system in reality and I'm opposed to software patents on the grounds that people gaming the system will cause more trouble for honest people than if there were not the system in place.
Gulf between you and the authors
I think that the gulf between you and the author of the patent (and other) articles is that you're describing how things are described and should be implemented, while the author is reacting to the way things are implemented.
It's true that patents should be non-obvious and new, but there are a large number of stupid patents that are granted and the costs of rectifying the situation is non-trivial.
I work for a university that is doing work on annotating media. We are a private university and we were collaborating with a public university in this project. Due to some of the budget crunches public schools are facing, there's intense pressure to patent and monetize as much as possible.
We ran into a snag in our collaboration as the other university announced that they had filed a patent application for annotating audio files online. This caused no end of problems as we (at the private school) were interested in licensing our work under the GPL. (It is a loose collaboration.) However, due to this patent announcement, that torpedoed some of what we were hoping to release.
It was a phenomenally bad patent. However, the local university lawyers were not at all interested in potentially spending the time and energy to fight this patent so that we could release an open source package. It was a bad patent, but the costs of having a court declare so were not small.
The situation was resolved when the other university dropped the patent application after a similar patent was found that had been granted to Microsoft Research about nine years ago. *shrug*
The point to all of this is that if the patents that were actually granted were non-obvious and innovative and there was a cost-effective way to overturn the bad patents, things wouldn't be quite the mess they are today. However, we don't live in the idealized patent situation you champion and support above. People can arrive at the same methods and ideas independently, and while the patent office continues to shirk its duty, there is a hazard for software developers. I do think that in your example above, with the right legalese and wording, someone could patent the progress bar in our current patent environment. (If it has not been patented already.)
For a good example of a stupid patent, look at http://www.freepatentsonline.com/5443036.html . If someone can patent the act of teasing a cat with a laser pointer, the system is probably broken and in need of major work.