Quote: Original post by bueno

Quote: Original post by John Schultz
It's not a big deal: that's how the world+business operate.

That's how the USA business operate. In a rest of the world (Europe for example) things are working diferently.

Complaining about patents is akin to complaining about taxes: everyone (worldwide tech industry) has to deal with it. There is currently no better system to protect intellectual property. While the EU does not have software patents, the USA+Japan is a very large market, making it worthwhile for global businesses to use the patent system.

The Open Source movement was thought to be an industry changing idea (it has certainly helped Linux to thrive). However, (especially with application software) businesses need accountability for the software they use, and commercial, closed software has remained strong, with previous Open Source users moving back to paid-for, accountable closed-source software.

Quote: Original post by bueno
I'm always wondering how is it possible to make patent on something which is not really invention?

For example, Microsoft got patent on using electrical signals inside the human body. If one company wants to create device which can comunicate to another device over the human body, it must pay to Microsoft first. Where is an invention here?

Microsoft's patent claims are pretty broad (in other words, well written). If there is no prior art (and cannot be successfully challenged in court), it will be tough to create and sell such a system without paying fees. Personally, it does not sound like a very healthy system for a living creature...

In the other extreme, some countries don't respect intellectual property at all: government promoted software piracy! As a commercial software developer (that is, in business to make a profit), the US IP laws are currently the best compromise available on this planet (the EU doesn't want to compete with US+Japan tech companies: their resistance to software patents is purely based on... money and profit, not philosophy or ethics).

The patent system is slowly changing: for now it's best to understand and work with the system the best you can.

Quote: Original post by John Schultz
It's not a big deal: that's how the world+business operate.

Of course it's a big deal:

1. A software developer is likely to infringe upon one or more patents when creating large, non-trivial computer programs.

2. Twenty years is an awful long time when it comes to computer software.

3. There are lots of questionable software patents out there, and it costs a lot of money to defend oneself against patent infringement claims. Small developers are at the mercy of larger companies that hold or claim to hold a patent on a technique employed by their software.

4. You make it sound as if it's easy to look for patents one's software might potentially infringe, but it actually costs a lot of money to hire an attorney who will thoroughly research the matter in such a manner as to be reasonably certain that said software does not infringe upon any patents.

Quote: Original post by chronos

Quote: Original post by John Schultz
It's not a big deal: that's how the world+business operate.

Of course it's a big deal:

1. You're likely to infringe upon one or more patents when creating large, non-trivial computer programs.

2. Twenty years is an awful long time when it comes to computer software.

3. There are lots of questionable software patents out there, and it costs a lot of money to defend yourself against patent infringement claims. A small developer is at the mercy of larger companies that hold or claim to hold a patent on a technique employed by your software.

I don't like worrying about getting nailed with a patent infringment suit any more than any other commercial software developer. However, I realize that I cannot change the system (at least not quickly; no one can). Things you cannot change must be categorized as "It's not a big deal: that's how the world+business operate". Why not spend time on working within the (unchangeable) system the best you can?

Quote: Original post by chronos
4. You make it sound as if it's easy to look for patents your software might potentially infringe, but it actually costs a lot of money to hire an attorney who will thoroughly research the matter in such a manner as to be reasonably certain that your software does not infringe upon any patents.

Actually, looking for patents that one might potentially infringe is searchable by anyone, for free (you don't need an attorney). Doing research for prior art when writing a patent (more than searching the patent database online) is more expensive (sometimes requiring a visit to the PTO library in person). However, for software, it's not that bad. I recently ran across patents that directly pertain to the type of game I am working on. I have to be careful how I design any element that is similar to the existing patents (ghost vehicles showing prior lap performance). There's nothing I can do about it, except design around the patent (claims). If something in my game ends up overlapping an existing patent, I'll change/remove the item(s) rather than fight (unless I find prior art, etc.). That's the way the system works; the world is not always fair.

I testified as an expert witness in a patent infringement suit that covered something I described as intuitive and totally obvious. Nevertheless, the company being sued ultimately decided it was more cost effective to settle than to go to trial. That's business... Still a lot more civilized than marching to one's competitor's "castle" and laying siege as was done in the past.

The patent system is about business and making money: a smart (efficient) business person will find ways to work with the system, only spending time and money to fight when there is no other choice.

Quote: Original post by John Schultz
Actually, looking for patents that one might potentially infringe is searchable by anyone, for free.

Except that the language used in patent applications is often so obscure that it's hard to find all relevant patents by entering a few keywords into a search engine. Relying on a search engine is not a good way to determine what to avoid and what to pursue.

Quote: Original post by chronos

Quote: Original post by John Schultz
Actually, looking for patents that one might potentially infringe is searchable by anyone, for free.

Except that language used in patent applications is often so obscure that it's hard to find all relevant patents by entering a few keywords into a search engine. Relying on a search engine is not a good way to determine what to avoid and what to pursue.

Remember, all you need to protect yourself from a patent suit is to have no infringement of the patent claims. Patent claims are actually a form of boolean algebra expressed in words. Compared to complex math and writing software, patent claims are trivial. Any commercial software developer worried about patent issues might want to obtain a copy of Patent it Yourself, by Nolo press. Here's a snippet from an email spam I recently received (cheaper than buying through the main page links):

Patent It Yourself
(Book)
- List price: $49.99
- YOUR PRICE: $33.99*
- Download for $29.99*
(Save $20!)
Discounted link

Once you read about how claims work, it's relatively easy to understand and pretty cool (like understanding a puzzle that once was challenging).

Additionally, unless a software product is making money, it's unlikely to be the target of an infringement suit, as it won't be cost effective (unless an example is being made for zero tolerance such as MP3, music industry, etc.).

Quote: Original post by John Schultz
Complaining about patents is akin to complaining about taxes: everyone (worldwide tech industry) has to deal with it.

Similarity between taxes and patents exists only because both are used by the government to fill budget. And this is where similarity stops. Patents in general should exists to protect somebody's invention. Nothing more and nothing less.

Quote: Original post by John Schultz
The Open Source movement was thought to be an industry changing idea (it has certainly helped Linux to thrive). However, (especially with application software) businesses need accountability for the software they use, and commercial, closed software has remained strong, with previous Open Source users moving back to paid-for, accountable closed-source software.

I'm glad that you mentioned OS community, becuase you just add one more reason for software patents to exist on my list:

1. To fill government's budget
2. To prevent small companies competing large companies
3. To shut down OS community

Last point is very interesting, because someone on the top doesn't really want to give too much freedom to one on the bottom. On other words, rich one can't be rich if it doesn't control the poor one.

Quote: Original post by John Schultz
Microsoft's patent claims are pretty broad (in other words, well written). If there is no prior art (and cannot be successfully challenged in court), it will be tough to create and sell such a system without paying fees. Personally, it does not sound like a very healthy system for a living creature...

Nothing is healthy this days. Everything is about profit.

Quote: Original post by John Schultz
In the other extreme, some countries don't respect intellectual property at all: government promoted software piracy!

I never heard about government really promoting software piracy. Maybe closing one oye, or something. I know that some governments are pushing open source solutions, while other are complaining about money they lose because of the software piracy.

Quote: Original post by John Schultz
As a commercial software developer (that is, in business to make a profit), the US IP laws are currently the best compromise available on this planet (the EU doesn't want to compete with US+Japan tech companies: their resistance to software patents is purely based on... money and profit, not philosophy or ethics)

Almost agree, because there is no single country on this world which is ethical.

Quote: Original post by John Schultz
Compared to math and writing software, patent claims are trivial.

Writing a patent application is very different from finding each and every patent your software might potentially infringe. There is no standardized language for software patents, so looking for relevant patents is potentially very difficult. It's not a matter of understanding how claims work, but rather about finding the particular patents that apply to your particular application.

Quote: Additionally, unless a software product is making money, it's unlikely to be the target of an infringement suit, as it won't be cost effective (unless an example is being made for zero tolerance such as MP3, music industry, etc.).

Not only if you're making money, but also if your software is potentially taking sales away from the patent-holding company. Programmers who write freeware or open source software have good reason to worry about software patents.

Quote: Original post by chronos

Quote: Original post by John Schultz
Compared to math and writing software, patent claims are trivial.

Writing a patent application is very different from finding each and every patent your software might potentially infringe. There is no standardized language for software patents, so looking for relevant patents is potentially very difficult. It's not a matter of understanding how claims work, but rather about finding the particular patents that apply to your particular application.

A big part of actually writing a patent application* is researching prior, published patents (and now patent applications). Published patents are included as references to: (a) show that you are aware of the prior art and performed a reasonable search and (b) to discuss how your new invention is different (and fundamentally does not infringe). One does not even start to write a patent application until a thorough search has been performed. Searching the PTO to make sure one's software (which will not be patented) does not infringe won't take any more time. Nothing is guaranteed either way in either case: do the best job you can with the available time/budget and move on. If something comes up later, deal with it the best you can. Worrying about things one cannot control is not efficient.

As for standard language, keep in mind that a patent application must be understandable to a layperson or "layjudge". If the language is so obscure that one performing a reasonble search (including the PTO itself internally!) cannot match what is patented to an artifact that is challenged by said patent, it's not likely to resist a legal challenge (as the meaning would be obscure, weakening any strength the patent may have had (it would be hard to believe such a patent would even be granted by the PTO)). If one performs keyword searches on industry standard words, they will find most if not all relevant prior patents. For example, if just the word 'physics' is searched for in the PTO, 65353 hits are returned. With physics and software search, 6768 hit. With physics and software and collision and detection, 340. Also keep in mind that patent application writers want their patents to be easily searchable and found by proper keywords.

Quote:

Quote: Additionally, unless a software product is making money, it's unlikely to be the target of an infringement suit, as it won't be cost effective (unless an example is being made for zero tolerance such as MP3, music industry, etc.).

Not only if you're making money, but also if your software is potentially taking sales away from the patent-holding company. Programmers who write freeware or open source software have good reason to worry about software patents.

If software is not making money, the developers can change the software so that it does not infringe on their hobby, pay a small license fee to continue using the patented element (and pay for the small fee from any peripheral revenue if the venture is not a hobby), or work on another hobby project without infringment issues.

*Patent claims language is standardized. See online references for patent claims, or Nolo's book(s).

"There is no consistent terminology that allows you to search for patents with keywords. Of course you can search for certain words, but you won't get all of the patents that you may have a problem with. Your database may violate a patent that only contains words that have to do with programming languages. Your e-commerce software may infringe upon 'telecommunications' patents, and so forth. So if you wanted to be certain that you have no problem, you'd have to study them all. Each patent is many pages written in a very hard-to-read language that programmers don't use in their day-to-day work." -- www.nosoftwarepatents.com

"The very obscure language makes 'published' patents extremely difficult to search and review, even by patent professionals." -- Wikipedia

"Having to search those databases and match your product with badly written and obscured patent language of huge number of patents is time-consuming, costly and does not provide adequate level of certainty." -- Wikipedia

"In Australia alone, there are 10,000 applications filed in [that] class... If you ever try to do a search in that class, you try to think of key words and you'll find all the words you can think of are in most other patent abstracts. You might get the list down to 7,000." -- Bob Kemp, Patent Researcher, R. E. Kemp & Co.

Quote: A big part of actually writing a patent application* is researching prior, published patents (and now patent applications). Published patents are included as references to: (a) show that you are aware of the prior art and performed a reasonable search and (b) to discuss how your new invention is different (and fundamentally does not infringe). One does not even start to write a patent application until a thorough search has been performed. Searching the PTO to make sure one's software (which will not be patented) does not infringe won't take any more time.

While it's doubtless a bad idea to submit a patent application that contains no references to prior art, it's not actually necessary to do so:

"Legally, one is not required to conduct what is referred to as a 'prior art' or a 'patentability' search, but not searching could result in needless expense. [...] Once you submit your application for patent to the United States Patent and Trademark Office (USPTO), a Patent Examiner will spend many hours, using sophisticated search engines, to search for a publication that he or she will be able to use to reject your application. Patent Examiners conduct patentability searches for a living. They spend most of their working days searching. They are good at it and the tools with which they are provided allow them to search quickly and thoroughly." -- www.costanzo-patents.com

Clearly there is more work involved -- out of sheer necessity -- in protecting yourself against potential patent infringement suits than in filing a patent application.

[Edited by - chronos on February 16, 2006 4:46:37 PM]

Quote: Original post by chronos
Clearly there is more work involved -- out of sheer necessity -- in protecting yourself against potential patent infringement suits than in filing a patent application.

Without acrimonious bias (www.nosoftwarepatents.com, LOL), I can tell you from personal experience that it's not hard to sanely search the PTO for possible conflicts. If it's understood that it's impossible to search and acquire all possible knowledge (related to defending your software product), all that one can hope for is a reasonbly thorough search, and defend oneself skillfully if an issue arises. There's nothing else one can do; complaining and/or being lazy (not bothering to search because a website stated that it is impossible) is not efficient. The system is not going to change due to people complaining on the web. It will take money, influece of power, and (hopefully) votes. In any case, change will only happen slowly (government process). Learn the system; do the best you can.

The information provided in this discussion is to help software developers; it's not a debate on whether patents are good or bad philosophically. This is the system we must operate in, and these are the rules. Do the best you can with the cards you deal and are subsequently dealt in return.