Remember when patents were considered this grand thing?
That, should you be so lucky to create some great idea and then patent it, the world would be better and you’d be rewarded for your genius!
I am 1st or second author on two granted patents. I have received neither any compensation nor any benefit for it. I don’t even get to do anything with them because they are property of another company.
Patents don’t even appear to be serving their intended purpose, I mean Broadcom odd just blocking the use, meaning Netflix subscribers just got a worse service now when Netflix could easily just pay to license like they should have.
I know at least one patent author for whom the system worked exactly as designed. That being my uncle. Imagine the literal bearded tinkerer in his garage inventing a (much) better sprinkler head. What's the next step? Without the patent system, I guess raise money, build a factory and establish yourself in the market? With the patent system, he sold it to one of the largest manufacturers and today AFAIK about a third of sprinkler heads sold in the US are his invention. He was paid handsomely for the decade plus of tinkering, the manufacturer got a great invention without spending a decade on R&D. Win all around.
You're not supposed to be able to patent 'Mathematics' or 'Nature' because these phenomena are 'discovered' and not 'invented'. You can patent a device that exploits a natural phenomena but not the phenomena itself.
Unless an algorithm is observed in nature, I don't really see how it makes any more sense to claim it's a natural phenomenon than it would to make the claim of a machine.
There are a lot of bad software patents. Many follow the formula "abstract mathematical concept, but now it's on a computer". For a long time, that's all that was required.
The problem with that is not the math, it's that it's basically the same as patenting "elevators, but yellow" after elevators have been patented. It's not novel.
I don't understand really why these patents are granted. Software is math and math formulas are not patentable.
The patent (and copyrights) system today is actually subverted by greedy players and instead of promoting progress and sciences is serving to enrich the middlemen by artificially SLOWING the progress.
Saying “software is math” is akin to saying “books are just letters”; the building blocks of software is not what people want to protect, it’s the idea and the effort to invent.
Whether software should be patentable or not is obviously open for discussion, but saying it’s just math isn’t really enough of an argument.
The best of the mainstream arguments against software patents has always been: What does Intellectual Property and Copyright not cover that patents do when it comes to software?
I only have a few friends I trust on such a topic, and my understanding is between IP and Copyright laws from them (ones a public policy researcher, the other a lawyer), it would be more than sufficient for protecting companies work and patents were lobbied only because their enforcement is more heavy handed, IE, it can stifle competition under the guise of "patent infringement"
> What does Intellectual Property and Copyright not cover that patents do when it comes to software?
Copyright cannot and does not prevent someone from clean-room engineering a replacement for your software. Patents can do that. (Whether or not they should is a different question, but that's not what you asked).
FWIW, patents are one of the forms of intellectual property.
Oh, no, that's not true at all. An invention might not even be possible, let alone having a clear and (literally, provably) correct specification of inputs and outputs. Just seeing that it exists, to say nothing of getting the correct proportion of inputs and outputs, could shave a decade off your invention cycle.
Take, for example, the nuclear bomb. Just knowing that it could be done put you ten steps ahead. What if cold fusion or a warp drive were known to be possible because you could see it (even if from a great distance with little detail)? Airplane manufacturers leapt ahead (literally) after the Wright Brothers.
A tremendous amount of effort for worthy inventions is often involved simply in proving that it can be done. Once you know it can be done, you don't have to prove it anymore, and also large companies will throw buckets of money at a clone of something that's proven to work.
A patent (sometimes) prevents that -- at least, when everything is working as it should be. (In this case, clearly not!)
>FWIW, patents are one of the forms of intellectual property.
To keep the discussion well focused, I didn't want to get into the nuance of "patents are IP law too" since in broader discussions, IP and patents are usually discussed separately, even though yes, they exist under the same legal umbrella (Intellectual Property).
> Copyright cannot and does not prevent someone from clean-room engineering a replacement for your software. Patents can do that. (Whether or not they should is a different question, but that's not what you asked).
That's a fair point, only patents give an entity the legal "teeth" to do this, though there is room for argument that a clean room engineering replacement would then show novelty and non obvious aspect of a patent to be invalid, and could be grounds for patent invalidation
[0]: Arguably, the fact that courts are sorting this out and not specialized experts at the USPTO is one of the main drivers for why our patent system is broken. Federal judges are not required to be technical experts to oversee a patent case. In addition, this allows the USPTO to liberally grant patents as they pass the validity concerns off to the courtroom
Copyright can do that, in exactly the same way that patents can. It just happens not to as currently configured.
You might observe that a clean-room replacement is in and of itself evidence that a patent covering it was obvious and therefore not validly granted, which would tend to imply that patents cannot prevent this.
The application of patents and copyrights to software are identical to how they are applied in chemistry and other physical engineering disciplines -- I've worked with both. A patent covers the physical algorithm, a copyright covers the design of an implementation of the algorithm. In chemical engineering, these are licensed separately, but the patent is more important and the copyright is worth little in practice.
The algorithm is the expensive step, design of a novel implementation (a copyright) is purely mechanical and any engineer can produce this part. If there was no patent, everyone would just pay an engineer to produce a new implementation of the chemistry algorithm. This would put the inventor of the chemistry at a huge disadvantage, since the costs of producing a new copyright is the same for everyone but only the inventor would have to amortize the cost of the invention. It would be more economical to never license the copyright from the inventor in many cases.
Regardless of the mechanism, the question ultimately comes down to who is going to pay for the cost of R&D. Copyright does not answer this question either in theory or in practice.
The alternative to patents is trade secrets, which have their own issues. In areas of software that use trade secrets almost exclusively, the state-of-the-art in software is often decades ahead of academic literature and open source. The cloud has been a huge boon for software trade secrets in that it makes reverse engineering difficult. Trade secrets makes it difficult for outside people to advance the state-of-the-art because the know-how is not public and creates negative externalities in terms of employment contracts.
To address another notion, virtually no R&D is done in open source. This is an empirical observation made by many. The incentives for doing R&D in open source are very poor. There are already large gaps in technology between what is available in open source and what exists in closed source software. Again, it all comes down to who is going to pay the significant costs of R&D.
Your wording is a bit confusing I think. Algorithms are not physical as far as I'm aware. Since (pure) algorithms and formulas are different ways to express mathematics, my impression was also that they were not patentable as such. Maybe you meant something slightly different?
Also, do you have sources for the statement "virtually no R&D is done in open source"?
Algorithms are not physical either in software or chemistry. Patents in chemical engineering are essentially a set of differential equations that can be applied to a real system, no different than software algorithms. If you replace “molecules” with “bits”, it is identical to software. Patents in chemistry have no connection to specific physical machinery, they are abstract concepts. The reason software algorithms are patentable everywhere is that they can be manifested as concrete logic circuits and electronic circuits are patentable.
I have no source for the lack of R&D in open source. It is a widely held view even within parts of open source, often commented on, and generally not considered controversial. As an example I am personally familiar with, database technology is virtually all developed privately and is far ahead of what is available in open source. Open source tends to copy whatever bits leak out, is decades behind the state-of-the-art, and the gap has been getting worse over time.
Software that requires man-years of extremely specialized expertise to produce tends to be a poor fit for open source. The people with these skills are well-paid and in high demand, often with contractual clauses that do not allow them to work on open source. They have families and other interests. There are few incentives to spend years of their lives building this software for free.
If this kind of software is to become open source, it will require incentives that are not a pure loss for those that know how to build it. This is the current situation. Someone has to pay for it.
So, algorithms are not automatically (supposed to be) patentable like you suggest, quite the opposite. Although on both sides of the Atlantic people have been bending the rules one way or the other for quite some time.
Nevertheless, Software Patents do not appear to be suitable for purpose.
> "[open source, and thus public information!] is decades behind the state of the art"
It would appear that software patents are not actually actually incentivizing the disclosure of workable methods-of-the-art to society. In fact, I don't hear of people using software patent documents to make something, like mechanical people sometimes do. I would love to be shown to be wrong on this. AFAIK, a practitioner of the art cannot take a software patent and trivially implement it.
Unlike a patent, a practitioner of the art can take a unit of FLOSS code and implement and/or improve it. So, based on your view of the world, open source seems to be taking the niche that software patents should have been creating.
On the one hand, fortunately the situation isn't quite as horrible as you suggest, and there are in fact innovative FLOSS projects. In part because some companies are incentivized to release their work as FLOSS to begin with, or work with a central FLOSS pool. On the other hand, this is all voluntary. There are often good incentives to defect from many different voluntary IP arrangements, even those that do include use of patents (see the case of H.265 ).
I think -with regards to software- that we are going to need a very different way of approaching IP. The current patent system is quite clearly useless at getting people to actually disclose their secrets, so we'll need a different method.
To be clear, I am entirely in the camp of algorithm patents being largely ineffective in software. I am not advocating for them, just recognizing the reality today.
In my view, the default outcome will be trade secrets, and it is already the case in many software areas. This has limits in practice as software trade secrets do have a tendency to leak out. I know a few clever database algorithms that are almost certainly trade secrets somewhere (origin is unclear), passed down but not in any public literature. On the other hand, I am aware of major (qualitative) tech advancements in e.g. graph algorithms that have not leaked after 15 years.
I think we need to be clear about the objective with IP law.
> The best of the mainstream arguments against software patents has always been: What does Intellectual Property and Copyright not cover that patents do when it comes to software?
Instinctively, that’s where I think it should be, agreed.
Aren't physical machines just math too? We can simulate them on computers, clearly just math, but maybe can't fully mathematically describe the non-idealized versions we produce in reality. Why does that level of completeness of description need to serve as such a sharp line on patentability?
Why are any patents granted? I've yet to read a patent that wasn't just Maxwell's equations, quantum mechanics, and general relativity which are all just laws of nature and not patentable.
As far as software goes, here's a question that can be interesting to ponder. Suppose there was some clever, useful, non-obvious entirely mechanical invention that was patented. If someone else tried to sell a product that accomplishes the same thing as that invention by having a computer running a general purpose physics simulation program which is given a model of that patented invention, would that be an infringement of the patent on the mechanical device?
> would that be an infringement of the patent on the mechanical device?
No because a patent has to describe the mechanism (the non-obvious inventive step). If there are multiple ways to achieve the same thing then in practice it's hard to protect and the patent is probably worthless, if not too obvious to be granted in the first place.
> The idea that math is "discovered" instead of "invented" is bullshit.
Nope, not to mathematicians. We routinely talk about the existence of mathematician constructs. These things exist and can be discovered, just not physically.
Nope, math is invented, without people there is no math. Math is a logic system invented by humans. You don't have to use math to describe relations between things. Math is a language, it describes real world and is not real world itself. So math is invented.
Nope, math is discovered, without people also there is math. Math is how the universe works. When you describe relations between things, that is Math. Math is notated using many languages, but the real world itself cares not for which notation you use. So math is discovered.
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Have a look at how various cultures around the world did maths before meeting Europeans. You will quickly stop thinking "Math is a language".
Hell, even European maths wasn't entirely European. The most popular number system in use to this day, arrived in Europe via Arab traders and itself originated in ancient India. A culture that developed its own entirely different set of ways to explain some the logic of the universe.
While the ancient Indian system of arithmetic would look very different to anyone with a standard school education today, both systems describe the exact same things: addition, multiplication, subtraction, and division of things.
If we were to meet an alien civilization, who'd undoubtedly have their own language(s) and culture(s), the fastest way for us to learn how to communicate with them would be to look at how they do maths. Because, while their language and notation of maths may be different, what they describe is going to be same fundamental laws of this Universe.
Nobody's making the claim that Euclidean geometry is all of maths. But the part of the universe that Euclidean geometry represents has always, still does, and will continue to work even when the last traces of Euclidean geometry vanish from recorded knowledge and memory.
> ... link to Gödel's incompleteness theorems
That's a proof of some limits of formal systems — particularly those that want to formalise everything under one unified set of axioms — not limits of mathematics. Mathematics / the universe does care one iota if you use this particular set of axioms or another. Or even any. It continues to work without a care for your need to have a grand unified theory. That you cannot discover all of its secrets because you restricted yourself is not its concern.
Maths is how the universe works, whether you understand it or not.
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But thank you for linking to Gödel's theorems. Your link directly answers the topic being discussed. You'll notice the text never says "invented" when talking about these or related theorems; it says "discovered".
> Euclidean geometry does not describe the universe, even if it's useful.
A statement that doesn't disprove the thesis in the slightest.
eg: There's non-Euclidean geometry which some say is handy in a post Newton Einstein universe.
If that fails, I feel there'll be something else again that conforms better to the universe as we understand it to be.
> the fact that math is not how the universe works was proven with math
Another statement that fails to prove the thesis; the universe itself is sufficiently complex that there can indeed be things out there that we will never 'prove' to our satisfaction.
You need to do some lifting here (perhaps a little more than 'some') to prove that Godel|Church|Turing results demonstrate beyond doubt that maths cannot underpin the workings of a universe.
Your comment reminds me a little of Gödel's ontological "proof" .. full of sound and fury but not really landing.
Mathematical notation is a language, but actual math isn't. For example, the concept of there being one of something is an inherent feature of our reality, but drawing short vertical lines for them is a thing we do. Similarly, we didn't invent 3.14..., that's just how circles work. We only invented the shapes I just used.
Obviously, yes. Integers don't exist in nature, being an abstraction made up by the human mind.
Math is only “discovered”, if by it, we mean the ability for humans to have the same ideas, simply because we think alike and live in the same environment.
> I have received neither any compensation nor any benefit for it
Is this because your invention wasn't commercially exploited or because your invention wasn't protected by the patents(because of reasons)?
Correct me if I'm wrong but In this particular case it appears that the patents of Broadcom worked as intended and they will be compensated if their invention is used. A good example of actually investing in inventing something, then make money with it thanks to enforcement of patents.
This doesn't appear to be a patent troll case but actual technology with actual use case in an actual multi billion dollar corporation and the other corporation who invented the technology demands to be compensated for the use their tech in this multi billion dolar trade.
I don't think this is the correct description of the situation. Is there any indication that if Netflix pays a fair amount, Broadcom will still not let Netflix use the tech to deliver its services?
The court order seems like an implementation detail for the enforcement of the patent. The court orders the cessation of the illegal activity, it's up to the relevant parties to come to an agreement and continue doing the same thing but this time legally.
Many inventors are employees with an employment contract that says that any patents are owned by the employer and/or they have to sell them to the employer for a token amount.
Supply and demand is fair, if and only if both sides are entirely free to walk away from the deal. Depending on the labor market situation this isn't necessarily a given when the alternative is starvation.
In the West, the alternative is seldom starvation. Given the very low rate of unemployment, despite the post-pandemic climate, it's pretty obvious that people still have choice when seeking employment. And there is always choice, which includes going back to school or moving to a different city. Heck, given the Internet, you can get education for free (until the ad-blockers ruin everything by normalizing paywalls).
People forget, or never learned, what involuntary servitude or starvation was actually like, or what actually happened when the hammer and sickle was adopted as a state religion.
And related to the parent, in the words of Thomas Sowell, the minimum wage is always zero. Or in other words, people should be glad that the demand for cashiers still exists, until the job gets fully automated.
I find it funny, yet unsettling, that I have to state the obvious on HN of all places.
I've been very misinformed about how stock ownership works. Can you point me to some situations in the past where stockholders were asked to pay for losses or had to come out of pocket in bankruptcy?
If they were to be partially paid in stock, they would actually get a share by way of dividend. There's upsides and downsides to such an arrangement, I would think.
My friend has a patent that made his company millions. He got a plaque and a pat on the back. He still got cussed out when he paid for his $100 steel toe boots (required for the job) with the company card. He’s an engineer in heavy machinery.
> Patents don’t even appear to be serving their intended purpose
I think there's a lot of misunderstanding of what their intended purpose actually is. The point of patents is to foster innovation -- not, as many think, to provide a financial benefit for innovation. Those may sound similar, but there are two very important differences: one, it assumes that financial benefit automatically promotes innovative things, and two, it assumes that financial benefit is the only motivation behind creating the patent system.
The former is a really complicated topic, and I'm not sure how much reputable, peer-reviewed research has gone into evaluating it. But the idea that financial incentives are the reason why the patent system was created is simply not accurate.
The patent system was created as a compromise: when you invent something, a patent gives you exclusive rights over it, yes. But in exchange, critically, you must publish, in detail, the exact workings of the invention. In other words, the public good intended by creating the patent system was the free exchange of ideas, even if your ability to actually use those ideas was limited by licensing fees.
Today, we live in a world where (I think it's pretty clear) patents are not the most effective tool available to promote the free exchange of ideas. I mean, you can learn a whole lot more about how something works by turning to youtube than by reading its patents. So half of the bargain is gone, irrelevant. But we've gotten so used to them that I haven't heard any real, substantive, serious discussion in political circles about what that means for the patent system as a whole.
The mechanism of freely exchanging the ideas is irrelevant. The exchange refers to providing the ideas to other people whether it's by stone tablet or internet.
I mean, I doubt Broadcom is “blocking” the use of this algorithm, they are just demanding payment.
That said, software patents are a huge drag on innovation, which is the opposite of the intent of the patent system, and thus they should be disallowed.
Sorry, you thought you'd be rich just because you are named on two patents? You don't think it matters what the patents regards nor how useful they are to others? It seems like you don't even own the patents... I'm struggling to understand the point of your "criticism"
In the modern world, inventors often don't own the patents to their own inventions.
I'd be very interested to hear from people who actually used a software patent in a useful manner. (Ie. Could they actually write a successful implementation, based on the patent text)
That's not true at all. I've litigated patents owned by their inventors. It is true that small-time inventors often have to sell them because they cannot afford to enforce their own patents due to the high costs of litigating against a much larger commercial entity.
>In the modern world, the inventors often don't own the patents to their own inventions.
Right but that's most likely because of his employer... so it seems entirely besides the point of whatever principle you are tilting at.
Oh, that's interesting! Very different from my own personal experience in life, and the experience of people I've worked with, as you may have gathered.
I'm definitely interested in learning about an opposite experience. Care to share? Were these "Software" patents? Hardware patents? Gene Patents? Which country? Do you have references to the patents and court cases?
What would you like to know? I'm not going to identify the patents nor their owners, as they never asked to be involved in this conversation, but I'm happy to share my own personal experiences. The patents were for a distributed networking system, that included hardware components, to be used in a particular industry. This is in the US. We defeated an Alice motion, with the court declaring that our patents were valid. Ultimately, we lost on a jury verdict. I see many of your posts and find them disagreeable.
While I am not doubting your personal experiences, you seem to place them above the very clear incentive structures that exist today, which force patent owners to have to sell their patents because they cannot afford to enforce them against the likes of Netflix or Broadcom or Google. The big companies are free to infringe on such patents. That's why I find it disappointing when I see people express dismay over the fact that a patent owner would sell their interests to a non-practicing-entity that will attempt to license and enforce the patent. Such a patent owner has no little to capitalize from their invention otherwise. In the event they do not sell, then they absolutely need a litigation financier in order to satisfy the costs of enforcement ($1m-$2m) via litigation. For the most part, the system is stacked in favor of the large companies, so I find it very bizarre to repeatedly see comments that come out agains the rights and interests of such inventors.
I'm sorry to hear that. The story you tell me appears to have two losers, both your side and the side you were suing. I doubt either side was happy to be there. This reinforces my belief that software patents are inappropriate.
Personally I'm not against the little guy or the big guy here.
The fact of the matter is that I'm opposed to software patents entirely. My reasoning is that software patents are unsuitable for purpose.
I'm not alone in this, it seems to be a fairly common sentiment among software developers I've spoken to. In fact, where I live (EU), originally Article 52 of the European Patent Convention does theoretically ban software patents, but see [1] [2].
I might change my mind if I hear of (m)any cases where software patents actually turned out to be helpful. Have there been any instances where you got a (software) patent outcome you were actually happy with?
>I might change my mind if I hear of (m)any cases where software patents actually turned out to be helpful. Have there been any instances where you got a (software) patent outcome you were actually happy with?
We lost because the jury found that we didn't infringe. Not because the patent was bad. I already explained that to you. What difference does it make whether or not we infringe to the validity of "software patents"? Which, btw, I explained we did not have a software patent.
I did defeat an Alice motion. I never claimed to be an expert on software patents, I'm not sure where you got that from. I claimed to have actual experience in the field and I shared what my experience encompassed and how its distinct from the narrative you weave in every patent-related thread. I described what the patents encompassed and you called it a software patent. It's not a "software patent", it has hardware components.
>I was hoping to get a different view on the matter from someone who had had a different experience to mine.
You come off as smarmy and disingenuous. Your comment here is also not actually responsive and just seems to be wrapped up ad hom. Answer the question: what does infringement have to do with the validity of software patents as a concept?
Trademarks and copyright are enough to compensate innovators.
The only possible exception I can think where patents are distinctly useful is Pharma, and even there it's not exactly a closed case.
In aerospace, software and electrical engineering; there are many examples of consumer harm from patents and very few, if any, examples where patents enabled innovators to do useful things which were otherwise economically unfeasible.
The purpose of patents is to encourage disclosure. By disclosing how something is accomplished, a business is rewarded with exclusive use of their method for a limited period.
I think the argument to be made in many fields is that patent law does not necessarily function correctly when technology advances so quickly.
Maybe it's because I started as a chemist, where you look at patents all the time, but yes I've absolutely looked at patents for inspiration, to figure out how things work, to attack certain problems, etc.
The usefulness of the patent disclosure is that it allows someone to write a different document, paper, or blog post that explains how it works in terms a normal software engineer can understand. Without that patent, none of the other public documentation of how to do something would exist.
You don't read the patent to learn how something works, you learn by reading other explanations that can be made available because the patent exists.
No, you learn through reverse engineering the software. It's easier than reading a patent, and patents don't reflect reality anyway. No one reads patents.
Easier/faster replication/implementation/new invention etc is the value. There are other people besides software developers that can look at a patent for inspiration and hire software developers to implement it
Maybe this happens somewhere in some industry I'm not aware of? There are many different kinds of documents I use to help me write code, but looking at even just a few (software) patents, they never seemed like they were written in a way that was useful to me?
>I mean Netflix subscribers just got a worse service now.
Your first points have merit but this is an odd point. Of course Netflix customers will get worse service. If you start a business and succeed by illegally using someone else's patent then you (and your customers) should suffer from a legal decision.
Seeing the technology and the parties involved, I think it's reasonable to suspect some form of Patent Ambush [1].
Even if it's not strictly a patent ambush as per the definition, certainly it would have been more ...polite... for Broadcom to have disclosed their patents to MPEG earlier.
If you've been reading the orange site for longer, you're probably familiar with the kinds of shenanigans people have been getting up to with video codecs.
US law has relatively recently been amended to reduce the scope and scale of the shenanigans people can get up. But it has certainly not been historically true (within this century) that everything is disclosed, certainly not within the USA.
Also, if you've read a few software patents, you'll probably see pretty quickly that disclosure alone doesn't mean much in this particular field.
I disagree with your assertion that "disclosure alone doesn't mean much in this particular field" and I generally do not find your comment responsive to what I wrote. It's incumbent upon a potential infringer to do their due diligence. Are you suggesting that reading the face of the asserted patent would somehow not indicate they were infringing? Upon what basis?
Or perhaps without patents there wouldn't be false monopolisation preventing better standards being contributed by people who can't afford expensive lawyers.
AV1 was created to be license-fee-free. There are lots of patents in AV1, it's just that their holders don't ask for money:
> Subject to the terms and conditions of this License, each Licensor, on behalf of itself and successors in interest and assigns, grants Licensee a non-sublicensable, perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as expressly stated in this License) patent license to its Necessary Claims to make, use, sell, offer for sale, import or distribute any Implementation.
There already is no H.265 in practice. It exists, brilliant people spent loads of time on it, but it's useless. What's the fucking point?
AV1 is a clear example that non-patent incentives are clearly enough to make markets invent superior media codecs. And at this point, if AV1 succeeds, it will have succeeded in spite of the extremely hostile environment created by patents. If it fails, it will fail because of patents.
Right, but you can't share that HEVC file. You need to convert it to something supported first (or have it be automatically converted by whatever service you're using).
That, should you be so lucky to create some great idea and then patent it, the world would be better and you’d be rewarded for your genius!
I am 1st or second author on two granted patents. I have received neither any compensation nor any benefit for it. I don’t even get to do anything with them because they are property of another company.
Patents don’t even appear to be serving their intended purpose, I mean Broadcom odd just blocking the use, meaning Netflix subscribers just got a worse service now when Netflix could easily just pay to license like they should have.
Ridiculous