Patenting Software: The Business Responsible Thing to Do

Gee even Red Hat has Software patents, so they must be.

Red hat is, of course, patenting Software to protect itself against Companies that do software patents as a matter of course and as a matter of business practice, not because they believe software patents are a good thing.

The person, is right about one thing, every FOSS developer and their dog, should be applying for patents on every thing they possibly can, the FOSS community should be burying the patent office in patent applications. Any patents should be donated to the patent pool, to protect FOSS against the same people Red Hat are protecting themselves, and by extension the rest of the FOSS community, against.

I expected this would generate some discussion. :)

Now, first off, the author has one valid point. From a purely business perspective, as long as software patents are allowed a business owes it to it's shareholders to patent it's software. A business exists to make money for it's owners while operating within the law. If software patents are legal, then that's one of the methods they should use to do so.

That said, my argument has never been that business should not patent software. It's been that software patents should not exist. They are directly counter to the original concepts of patents, and should never have been allowed. Yeah, I know, the courts don't agree with me. What else is new?

Of course, it's not surprising that a patent attorney would hold this view. As others have noted “It’s difficult to get a man to understand something, if his salary depends on his not understanding it”. Attributions are important, so I should note that Google says this is a quote from Upton Sinclair.

jdixon,...

I think you hit it right,...

But since they are inevitable, at least until the system is over-hauled, it is necessary. You can copyright something, but that doesn't prevent someone from changing code arbitrarily to work around your end result.

I for one am considering patenting a particular project of mine. Now, I am not much of a coder, and the patent is for a very specific purpose, with very specific application to a particular industry's business process. It will be as much of a business process patent as it will be a software patent. But they key factor is that I wouldn't need to do this if people respected other people's ideas and gave them credit for them, both in terms of $$$ and/or accolades...

For the record though, I am against software patents. I believe it runs contrary to the idea of a Turing Machine, infinite configurable, which is essentially what modern computers are (or more approriately, attempt to be). My attitude is though,... "when in Rome"... and you gotta CYA...

JaseP

Your post shows a basic misunderstanding of the issue. Patent and copyright are attempts to make ideas into property which can then be sold or rented (licensed). In reality, only products can be owned and therefore sold. Services can be rented. The reason patents are important for a company like Redhat is to prevent other patentholders from using the legal system to prevent Redhat from selling its products and offering its services for rent.

If ideas were truly (legally) free then requiring attribution and compensation for them are ludicrous ideas, although there would still be a market voluntary market for ideas.

"You can copyright something, but that doesn't prevent someone from changing code arbitrarily to work around your end result." JaseP

Yes, it would. They can even spend thousands of developer-hours rewriting it in another language and your copyright would still apply, as theirs would be a derivative work.

Think code copyright, think book copyright.

Actually, re-writing code in another language would not qualify as a "derivitive work". You can only copyright an expression of an idea - but you can't copyright the idea itself.

http://www.copyright.gov/help/faq/faq-protect.html#idea

The re-write of code from one language to another is not the same process as translating a book from one language to another, so you're comparing apples to oranges. The doctrine of "Fair Use" also comes into play, so there is no guarantee that software written in a different language would be covered by the original copyright. It all depends on the Abstraction-Filtration-Comparison test.

http://www.copyright.gov/help/faq/faq-fairuse.html#howmuch http://en.wikipedia.org/wiki/Abstraction-Filtration-Comparis...

So, if a corporate entity were to spend "thousands of developer-hours" rewriting an application in another language, chances are that the resulting work would not fall under the original copyright.

Quoting:You can only copyright an expression of an idea - but you can't copyright the idea itself.

Someone should explain that to the Stoker estate. http://en.wikipedia.org/wiki/Nosferatu#Influences

patrokov -

You are incorrect. The original intention of patents were not the way they are being used at all.

The original purpose of patents were to increase the public good by allowing innovators to publish their inventions in exchange for a limited amount of time in which they can get a monopoly over the monetisation of them. Prior to this, commercial secrets were the favoured mechanism. Keeping things secret (which is BTW still the main way in which computer companies run their businesses) is bad for society on the whole as the body of public knowledge is not increased.

The vast majority of things given patent status particularly by the USPTO are not innovative and hardly useful monetiseable ideas. Coupled with the fact that the useful lifetime of software innovation is a lot shorter than the length of a patent means that society is not benefiting from the disclosure proportionate to the length of the monopoly.

One good example: the FAT filesystem. This should have entered the public domain years ago. There is nothing remotely innovative about this invention now and it is not something that Microsoft actively monetises itself with its own products. It is merely a cash cow for them to attack other companies with which is against the spirit of the whole patent idea.

"Actually, re-writing code in another language would not qualify as a "derivitive work"." DarrenR114

Oh yes it would. The mere act of developers viewing similar code is enough to make lawyers break into a sweat.

http://www.linuxjournal.com/article/6366 http://digital-law-online.info/lpdi1.0/treatise27.html

"The re-write of code from one language to another is not the same process as translating a book from one language to another, so you're comparing apples to oranges." DarrenR114

Copyright law does not make this distinction.

Patents were intended to provide inventors a limited monopoly in exchange for disclosing their idea to the public at large.

Funny thing is, you can patent software *and* keep the code commercially secret. So all that remains for the public good are "novel" patents like the idea of a 1-click shopping basket, or the idea of retro-fitting the FAT filesystem with long filenames. Doh!

> ...or the idea of retro-fitting the FAT filesystem with long filenames. Doh!

Which had already been done with the umsdos file system under Linux.

saint_abroad & jdixon -

Indeed.

What patent-holding companies should really do is to voluntarily relinquish their patents when they have no further use for them. Instead, they hoard them like greedy men with their pots of gold.

The biggest obscenity at the moment in industry, in my view, are companies whose entire existence is to hold patents and extract license fees from others. They truly pervert the original intention of the patent acts.

It would be difficult, but one way around this would be for an expiry clause similar to how trademarks can be withdrawn or reassigned by statute. You must actively use (defend) the patent in order to retain it. Similarly, you must defend a trademark otherwise you can lose it. It would be difficult to legislate for in a world of subcontracting and loosely coupled company groups but if it could be made to work, the whole business would straighten out.

One of the problems with patents, like with copyright, is that we have had this legislation for so long, people have gotten to think of it as a natural and historic right. It's not. It is a legal compromise intended to, on balance, benefit society. As soon as it stops doing that, it should be scrapped.

One of the most strident anti-patent authors I know, Stephan Kinsella, is himself a patent lawyer.

He says he is paid entirely (or at least almost entirely) for the defensive use of patents.

I can recommend his "Against Intellectual Property", http://www.stephankinsella.com/publications/#againstip

> One of the problems with patents, like with copyright, is that we have had this legislation for so long, people have gotten to think of it as a natural and historic right. It's not. It is a legal compromise intended to, on balance, benefit society. As soon as it stops doing that, it should be scrapped.

Cool! I couldn't have written that better myself. :^)

"Red Hat, Inc. [...] is named as the assignee on some 263 US patents [...] If patents are good for Red Hat [...] then why are software patents bad for you?"

There's a music group in Miami that has 263 guns. If it's good for them, then why not for you?

"The Study also revealed that the importance of patents was not limited by industry, finding that patents are an important factor with VC firms as follows: “60% for software companies, 73% for biotech, and 85% for medical devices.”"

Loan sharks consider gun ownership an important factor as follows: 85% for organised crime, 73% for bars, and 60% for rappers.

In short, guns help rappers create innovative music.

It's a dumb argument in any case, when a typical patent portfolio numbers in the thousands and tens of thousands. IBM was the leader in new patents last year, getting nearly 5,000. They are the perennial leader in all industries in getting new patents.