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Comment by ultimoo | Hacker News Reader

We recently covered patents and basic copyright law in a technical writing class. What my professors taught me was that 'patent is a contract between society and inventors to encourage progress'. And it seems fair on certain levels.

I am a huge proponent of FOSS, I respect Stallman, I've read his book and I think patent trolls are dicks. However, is it a good idea to make software not patentable? Will we as a community fail to innovate then?

Disclaimer: I only skimmed over the OP

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The point of patents isn't to encourage progress. Inventors have existed and will exist with or without patents, and we will have progress with or without patents. The point of patents is to destroy trade secrets. The contract between society and inventors is, tell us how you did it, and in exchange we promise to not compete with you for a while. The word "patent" itself means open, as in the phrase "patently false", i.e. manifestly or obviously false.

This is an awesome patent:

http://www.google.ca/patents/US5255452

This is what patents are supposed to be about: a magician revealing his tricks. Without patent law, the public may have never known how Michael Jackson did the Smooth Criminal leaning trick. He would have taken the secret to his grave.

This is a ridiculously stupid patent:

http://www.google.com/patents/US5963916

Do you get what this patent is saying? It's saying "click on a button in a browser, and it plays music!" Here is a detailed analysis of it:

http://www.gnu.org/philosophy/trivial-patent.html

The problem is the vast majority of software patents are of this kind. They are not revealing any secrets. They're just making life difficult for everyone else. This is what needs to be abolished.

The problem is that the vast amount of computer software doesn't contain an inventive step. The vast majority of software development is taking existing, well-understood techniques and solutions, and applying them to an equally-well-understood problem. Implementation, rather than innovation.

The parts of software development that are genuinely inventive (and thus could be considered worthy of patent protection) are either already held to be not patentable (mathematical algorithms, development practices), or are far better served by copyright and trademark law than by patents (design). Patents serve little-to-no-purpose in protecting legitimate invention in software.

Lets also not forget that proprietary software implementations are by design a secret, which almost always are kept forever from the public.

So a genuinely inventive idea can be independent created over and over again. A email sorting algorithm could had firstly been made in then 1950, again in the 1970, 3 times in the 1990, and then claimed in a patent in the 2000. Even if source code was public, a patent examiner would have to compare and understand billions of line of codes to even try to grasp what is genuinely inventive, and was has already been done before.

Examining software patents is an unsolvable problem. Society can either have them an accept that any review is a token effort at best, and a rubber stamp in the common case, or they can avoid the whole mess by not allowing those kinds of patents.

Take it to the extreme: say IBM patented the `operating system software`, for example. Would Microsoft and/or Apple have come to exist as projects out of a basement or dorm? Say someone patented a media player that could hold a library in the cloud and could stream it to the user via a network / internet... would Spotify, Rdio, or any other competitors exist today?

Software patents are suffocating innovators, rather than inspiring them.

Misconceptions abound. You cannot patent "operating system software" because it is an abstract concept with no embodiment, like "flying car" or "hyperdrive spaceship".

And people did patent "media player with music in the cloud", or more accurately, various aspects thereof. Spotify famously got sued over a patent on a specific way to do DRM for streaming music, for example, when they entered the US. They just licensed it and moved on. The streaming music industry is growing all the time, despite tons of patents in the field.

Conversely, if you think weak patent rights means unbounded innovation, I haven't seen any particularly impressive tech originating in China or India.

Things are patented left and right in the US, and always have been, and I don't see innovation here slowing down any. And it would not be surprising if people understood the realities of patents instead of believing what tech media tells them (insert reference to pg's "Submarine" essay here).

> You cannot patent "operating system software" because it is an abstract concept with no embodiment, like "flying car" or "hyperdrive spaceship"

Exactly why I started my sentence with _take it to the extreme_.

Innovation in the US may not have slowed down (I would argue that it has, although I'm not in the US), but it has definitely become quite expensive. In my opinion, that's a barrier for independent software developers.

Actually, small players like startups and independent developers are the least likely to get hit with patent problems. It's only because the few trolls that sued a lot of small guys got a huge amount of publicity that it seems like a big problem. These trolls are abusing the cost asymmetry of patent litigation, and something needs to be done about this, but they are still relatively rare. Unfortunately, this problem shows signs of growing fast.

Will we as a community fail to innovate then?

Yes, because there was no innovation until patent protection came to be. Do you seriously think we would have invented and shared the secret of making fire over 10,000 years ago without patents to protect the original inventors? Or the wheel or the steam engine or telescopes? LOL

Making something patentable does not magically transfer attributes to it, i.e. 'to encourage progress'.

The question is not whether not to patent but whether patentability is appropriate.

In respect to software patents, which is little more than mathematics and a form of art, that has been shown to be wholly inappropriate.

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