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Direct the Patent Office to Cease Issuing Software Patents

315 points by acrum 15y ago

irrumator 15y ago
Why?
- byoung2 15y ago
  There is much debate over whether software patents encourage or discourage innovation. There are a lot of arguably obvious software patents (e.g. "Method to retrieve backups from the internet"). Since the USPTO only started issuing software patents in the late 1990's, some or most of these patents are predated by plenty of examples of prior art. Imagine if a movie screenwriter were suddenly able to patent the romantic comedy, or the buddy-cop movie and then use these patents to sue anyone who tried to make a similar film? How many movies would not be made just because of the fear of litigation?
  - teaspoon 15y ago
    In case you're not aware, a patent's title isn't an indication of what is actually claimed, nor is it a unique identifier. There could be several patents titled "Method to retrieve backups from the internet", each claiming very domain-specific and non-obvious techniques.
  - CamperBob 15y ago
    It's not very debatable at all, actually. Plot two curves on the same graph, one showing the rate of fundamental innovations in software and computer science in general and the other showing the number of software patents issued by the USPTO. My guess is that those curves will cross sometime in the 1990s, and never approach each other again. (The trouble is that the politicians, not knowing any better, will go to the USPTO to get both sets of figures. "See? All of these new software patents must mean that innovation has accelerated at a tremendous rate!"))
    - hugh3 15y ago
      Now let's plot the same curve "rate of fundamental innovations in software and computer science" against the popularity of the name "Tyler" for young boys. Correlation, causation, yada yada yada.
      - CamperBob 15y ago
        Yadda, yadda, indeed. The point is, there is no real correlation to begin with, except for what a naive politician will see when he looks at the number of patent grants.
  - hugh3 15y ago
    If the best thing you can say is that the benefits of software patents are debatable, then.... well, you haven't yet convinced me that they're bad.
elehack 15y ago
IANAL, but I don't think the executive branch has the authority to do what the petition is asking. The patent office merely interprets what Congress and the courts tell it - while there is some interpretational discretion, I don't think it extends to the point of rejecting all software patents and certainly not to the point of retroactively invalidating all of them.
- baddox 15y ago
  The President can certainly sign an executive order saying pretty much whatever he wants to say. The President doesn't really have any explicit authority to issue executive orders, but historically executive orders are treated the same as Congressional legislation (although the courts can certainly overturn one). That said, I would much prefer a proper legislative approach to an executive one. The Patent and Trademark Office is part of the Department of Commerce, so I don't think it would be frowned upon too much for the executive branch to enact some reform. Still, I think a legislative approach would be more robust and less controversial.
- mchusma 15y ago
  If it brings the issue anywhere near DC, it's a good thing.
- brlewis 15y ago
  Courts have already spoken: http://ourdoings.com/ourdoings-startup/2011-07-28 http://ourdoings.com/ourdoings-startup/2011-07-28
- zhemao 15y ago
  The US Patent Office is part of the Executive Branch, so the President certainly does have the authority to issue orders to them.
  - elehack 15y ago
    Yes, the President can issue orders to them. But if those orders countermand the direction and mandate the patent office receives from congress as interpreted by the courts, the executive branch has overstepped its authority. Such an order would be, in my opinion, an order to step outside authority and outside law. Yes, such orders have been given on many occasions, but that doesn't make them right.
marojejian 15y ago
This is a nice idea, but I can't sign a petition where the grammar is that bad.
s3graham 15y ago
Good lord, can we petition them to write the petition in English first?
alttag 15y ago
Dupe from earlier today: http://news.ycombinator.com/item?id=3028999 http://news.ycombinator.com/item?id=3028999 Same complaints on that thread. We as a community seem embarrassed to sign something which has such awful grammar.
randymorris 15y ago
Grammar aside, I think this should be signed at the very least to show interest in IP law change. You have to admit that any developer with any sense of the litigation battlefield currently represented in the law should jump at the chance to bring more focus to the subject. I would rather fight big business on a competitiveness basis than over the tremendous threat of litigation with the large legal team overlords cutting up every concept and locking it down.
hugh3 15y ago
Is this "petitions" feature on whitehouse.gov brand new? I've heard of a couple of petitions today, and never before. I see right now that there are only 32 petitions there, and every one of them is either a neutral or leftish cause. The only completely nutty one is the UFO one, and there are no troll ones either (I thought "Stop Animal Homelessness At Its Roots" was a clever troll, but apparently it's talking about abandoned pets rather than wild animals). Have conservative activists not yet got wind of this? Has 4chan not yet got wind of this? Or is the White House carefully curating what petitions it allows to appear on its site?
- m_myers 15y ago
  If it is indeed new, then my first guess is that the leftward lean is from Reddit.
- philfreo 15y ago
  In addition, a petition must get 150 signatures in order to be publicly searchable on WhiteHouse.gov.
  - hugh3 15y ago
    One hundred and fifty names (err, anons) should be easy enough to rustle up on 4chan for a petition to... well, whatever the meme of the week on 4chan is. I googled "white house petitions free republic" to see whether the freepers were planning anything, but so far they haven't got past the "They'll harvest my IP address" paranoia stage. I'm sure that conservative activists will get wind of this eventually. If there isn't a serious competition for the most-signed petition between "Legalize pot, man" and "Make Ron Paul President" by this time next week then I'll be suspicious that they're deleting things they don't like.
NormM 15y ago
Since there are trillions of dollars worth of software patents out there, most owned by US companies, this doesn't seem like a good way to proceed even if it were legal. You might be able to stop future applications for software patents. But really there's no bright line between software and hardware anymore -- you really need to reform the entire patent system.
- perlgeek 15y ago
  What makes you think software patents are worth trillions of dollar, and how do you define "worth"? I'd guess that for the economy as a whole, the combined worth of software patents is negative.
  - NormM 15y ago
    I agree their economic value is probably negative, but because of the broken patent laws companies currently need them. Since companies like Google and Apple have recently spent billions of dollars to buy relatively small collections of patents, the entire existing pool would probably cost a few trillion to buy. It's really not a good idea to make laws that cause companies to spend this much money, and then declare their value to be zero. It's also probably not legal.
dsl 15y ago
Software patents are not bad. Obvious patents are bad.
- mythz 15y ago
  Name a good software patent the world can't live without?
  - dsl 15y ago
    I'll quote PG himself: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not." By speaking out against software patents, you are essentially saying that programmers are not capable of inventing, or that they should not be afforded the same protections that other inventors receive.
    - vadiml 15y ago
      Not at all. The people who are against software patents are simply convinced that they (software patents) stiffling innovation.
      - hugh3 15y ago
        It's not clear to me where the line between "software patents" and "other patents" exists, or why that should be a bright line. And even if you could convince me that patents in field X (say, patents for mining machinery) were (at present) holding back rather than encouraging innovation in that field, this might not be a convincing argument anyway. I think government should treat all industries equally unless there's some very compelling reason not to.
        wnight 15y ago
jarin 15y ago
Just a small thing, but this site completely fails at the back button.
gavanwoolery 15y ago
As of this writing, 5029 of the required 5000 signatures have been collected! Now hopefully this actually goes somewhere...
- jayfuerstenberg 15y ago
  I wish I could participate and drive that number higher but I'm not American. I have linked to this petition from my blog urging Americans to sign it though.
dbingham 15y ago
Yes, this is a dupe from earlier today. I posted the damned thing by accident while learning the system in a half awake stupor. And, because I was in an half awake stupor, decided it was a good idea to share it with the world after accidentally posting it. I've been trying to get them to take it down to no avail. Failing that I've suggested better language and asked other people to suggest better language. On Monday I plan to call the White House switch board and see if I can beg/bully my way to someone with the power to update the text. The previous thread had my suggestion for better language, but I'll just go ahead and repost it here: ---- The US Patent system is badly broken with respect to software patents. Patents are being issued to companies for “inventions” that are, in fact, common knowledge included in any introductory software textbook. The result is that the large software corporations are buying up reams of patents and using them to bully small, innovative companies out of business or into paying ridiculous licensing fees. Quite apart from encouraging innovation, patents are now stifling it. The software industry is one of the few industries still strong in America. Even in a time of recession, there are not enough computer programmers to fill all the available positions. Startup companies are forming and growing readily. But if every line of code written brings with it a potential violation of someone else's intellectual property, this will cease to be the case. To solve this problem, we petition the Obama Administration to direct the Patent office to cease issuing software patents and to instruct the judicial system to take a long hard look at existing patents for validity. With these two steps, those of us in the software industry can stop worrying about mutually assured patent destruction and get back to doing what we do best. ---- If anyone else comes up with language the community prefers, I'm game to use it when I call the switchboard on Monday.
- JoshTriplett 15y ago
  Seems like an improvement to me.
- rbanffy 15y ago
  You shouldn't update the text of a petition people already signed.
  - dbingham 15y ago
dsosby 15y ago
Now how to identify what is a "software" patent and what isn't? Legally software already can't be patented -- it has to be a physical something. Read any "software" patent and it doesn't refer to the software, it refers to some sort of programmable machine that does something special with its software. Is it a machine patent or is it a software patent?
kman 15y ago
good luck with that.

315 points by acrum 15y ago

irrumator 15y ago

Why?

byoung2 15y ago
There is much debate over whether software patents encourage or discourage innovation. There are a lot of arguably obvious software patents (e.g. "Method to retrieve backups from the internet"). Since the USPTO only started issuing software patents in the late 1990's, some or most of these patents are predated by plenty of examples of prior art. Imagine if a movie screenwriter were suddenly able to patent the romantic comedy, or the buddy-cop movie and then use these patents to sue anyone who tried to make a similar film? How many movies would not be made just because of the fear of litigation?
- teaspoon 15y ago
  In case you're not aware, a patent's title isn't an indication of what is actually claimed, nor is it a unique identifier. There could be several patents titled "Method to retrieve backups from the internet", each claiming very domain-specific and non-obvious techniques.
- CamperBob 15y ago
  It's not very debatable at all, actually. Plot two curves on the same graph, one showing the rate of fundamental innovations in software and computer science in general and the other showing the number of software patents issued by the USPTO. My guess is that those curves will cross sometime in the 1990s, and never approach each other again. (The trouble is that the politicians, not knowing any better, will go to the USPTO to get both sets of figures. "See? All of these new software patents must mean that innovation has accelerated at a tremendous rate!"))
  - hugh3 15y ago
    Now let's plot the same curve "rate of fundamental innovations in software and computer science" against the popularity of the name "Tyler" for young boys. Correlation, causation, yada yada yada.
    - CamperBob 15y ago
      Yadda, yadda, indeed. The point is, there is no real correlation to begin with, except for what a naive politician will see when he looks at the number of patent grants.
- hugh3 15y ago
  If the best thing you can say is that the benefits of software patents are debatable, then.... well, you haven't yet convinced me that they're bad.

elehack 15y ago

IANAL, but I don't think the executive branch has the authority to do what the petition is asking. The patent office merely interprets what Congress and the courts tell it - while there is some interpretational discretion, I don't think it extends to the point of rejecting all software patents and certainly not to the point of retroactively invalidating all of them.

baddox 15y ago
The President can certainly sign an executive order saying pretty much whatever he wants to say. The President doesn't really have any explicit authority to issue executive orders, but historically executive orders are treated the same as Congressional legislation (although the courts can certainly overturn one). That said, I would much prefer a proper legislative approach to an executive one. The Patent and Trademark Office is part of the Department of Commerce, so I don't think it would be frowned upon too much for the executive branch to enact some reform. Still, I think a legislative approach would be more robust and less controversial.
mchusma 15y ago
If it brings the issue anywhere near DC, it's a good thing.
brlewis 15y ago
Courts have already spoken: http://ourdoings.com/ourdoings-startup/2011-07-28 http://ourdoings.com/ourdoings-startup/2011-07-28
zhemao 15y ago
The US Patent Office is part of the Executive Branch, so the President certainly does have the authority to issue orders to them.
- elehack 15y ago
  Yes, the President can issue orders to them. But if those orders countermand the direction and mandate the patent office receives from congress as interpreted by the courts, the executive branch has overstepped its authority. Such an order would be, in my opinion, an order to step outside authority and outside law. Yes, such orders have been given on many occasions, but that doesn't make them right.

marojejian 15y ago

This is a nice idea, but I can't sign a petition where the grammar is that bad.

s3graham 15y ago

Good lord, can we petition them to write the petition in English first?

alttag 15y ago

Dupe from earlier today: http://news.ycombinator.com/item?id=3028999 http://news.ycombinator.com/item?id=3028999 Same complaints on that thread. We as a community seem embarrassed to sign something which has such awful grammar.

randymorris 15y ago

Grammar aside, I think this should be signed at the very least to show interest in IP law change. You have to admit that any developer with any sense of the litigation battlefield currently represented in the law should jump at the chance to bring more focus to the subject. I would rather fight big business on a competitiveness basis than over the tremendous threat of litigation with the large legal team overlords cutting up every concept and locking it down.

hugh3 15y ago

Is this "petitions" feature on whitehouse.gov brand new? I've heard of a couple of petitions today, and never before. I see right now that there are only 32 petitions there, and every one of them is either a neutral or leftish cause. The only completely nutty one is the UFO one, and there are no troll ones either (I thought "Stop Animal Homelessness At Its Roots" was a clever troll, but apparently it's talking about abandoned pets rather than wild animals). Have conservative activists not yet got wind of this? Has 4chan not yet got wind of this? Or is the White House carefully curating what petitions it allows to appear on its site?

m_myers 15y ago
If it is indeed new, then my first guess is that the leftward lean is from Reddit.
philfreo 15y ago
In addition, a petition must get 150 signatures in order to be publicly searchable on WhiteHouse.gov.
- hugh3 15y ago
  One hundred and fifty names (err, anons) should be easy enough to rustle up on 4chan for a petition to... well, whatever the meme of the week on 4chan is. I googled "white house petitions free republic" to see whether the freepers were planning anything, but so far they haven't got past the "They'll harvest my IP address" paranoia stage. I'm sure that conservative activists will get wind of this eventually. If there isn't a serious competition for the most-signed petition between "Legalize pot, man" and "Make Ron Paul President" by this time next week then I'll be suspicious that they're deleting things they don't like.

NormM 15y ago

Since there are trillions of dollars worth of software patents out there, most owned by US companies, this doesn't seem like a good way to proceed even if it were legal. You might be able to stop future applications for software patents. But really there's no bright line between software and hardware anymore -- you really need to reform the entire patent system.

perlgeek 15y ago
What makes you think software patents are worth trillions of dollar, and how do you define "worth"? I'd guess that for the economy as a whole, the combined worth of software patents is negative.
- NormM 15y ago
  I agree their economic value is probably negative, but because of the broken patent laws companies currently need them. Since companies like Google and Apple have recently spent billions of dollars to buy relatively small collections of patents, the entire existing pool would probably cost a few trillion to buy. It's really not a good idea to make laws that cause companies to spend this much money, and then declare their value to be zero. It's also probably not legal.

dsl 15y ago

Software patents are not bad. Obvious patents are bad.

mythz 15y ago
Name a good software patent the world can't live without?
- dsl 15y ago
  I'll quote PG himself: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not." By speaking out against software patents, you are essentially saying that programmers are not capable of inventing, or that they should not be afforded the same protections that other inventors receive.
  - vadiml 15y ago
    Not at all. The people who are against software patents are simply convinced that they (software patents) stiffling innovation.
    - hugh3 15y ago
      It's not clear to me where the line between "software patents" and "other patents" exists, or why that should be a bright line. And even if you could convince me that patents in field X (say, patents for mining machinery) were (at present) holding back rather than encouraging innovation in that field, this might not be a convincing argument anyway. I think government should treat all industries equally unless there's some very compelling reason not to.
      - wnight 15y ago

jarin 15y ago

Just a small thing, but this site completely fails at the back button.

gavanwoolery 15y ago

As of this writing, 5029 of the required 5000 signatures have been collected! Now hopefully this actually goes somewhere...

jayfuerstenberg 15y ago
I wish I could participate and drive that number higher but I'm not American. I have linked to this petition from my blog urging Americans to sign it though.

dbingham 15y ago

Yes, this is a dupe from earlier today. I posted the damned thing by accident while learning the system in a half awake stupor. And, because I was in an half awake stupor, decided it was a good idea to share it with the world after accidentally posting it. I've been trying to get them to take it down to no avail. Failing that I've suggested better language and asked other people to suggest better language. On Monday I plan to call the White House switch board and see if I can beg/bully my way to someone with the power to update the text. The previous thread had my suggestion for better language, but I'll just go ahead and repost it here: ---- The US Patent system is badly broken with respect to software patents. Patents are being issued to companies for “inventions” that are, in fact, common knowledge included in any introductory software textbook. The result is that the large software corporations are buying up reams of patents and using them to bully small, innovative companies out of business or into paying ridiculous licensing fees. Quite apart from encouraging innovation, patents are now stifling it. The software industry is one of the few industries still strong in America. Even in a time of recession, there are not enough computer programmers to fill all the available positions. Startup companies are forming and growing readily. But if every line of code written brings with it a potential violation of someone else's intellectual property, this will cease to be the case. To solve this problem, we petition the Obama Administration to direct the Patent office to cease issuing software patents and to instruct the judicial system to take a long hard look at existing patents for validity. With these two steps, those of us in the software industry can stop worrying about mutually assured patent destruction and get back to doing what we do best. ---- If anyone else comes up with language the community prefers, I'm game to use it when I call the switchboard on Monday.

JoshTriplett 15y ago
Seems like an improvement to me.
rbanffy 15y ago
You shouldn't update the text of a petition people already signed.
- dbingham 15y ago

dsosby 15y ago

Now how to identify what is a "software" patent and what isn't? Legally software already can't be patented -- it has to be a physical something. Read any "software" patent and it doesn't refer to the software, it refers to some sort of programmable machine that does something special with its software. Is it a machine patent or is it a software patent?

kman 15y ago

good luck with that.