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An Argument Against Software Patents
Posted by
samzenpus
on Mon Oct 30, 2006 02:10 PM
from the share-the-software dept.
from the share-the-software dept.
clndnng writes "Roughly 90% of web content consists of discussions of software patents,
so it's a little surprising that Ben Klemens has written what may be
the first dead-trees book analyzing their validity. It has a lot of
ground to cover: you could approach the topic from the perspective of
the geeks, the lawyers, the economists, or the businessmen. Klemens is
equal-opportunity, addressing every perspective." Read the rest of the review.
The first question you are probably asking yourself is whether this book says anything that you haven't already read on Slashdot's pages. Barring any omniscient readers, the answer is probably yes, because the book covers so many different angles. You might already know what he will say about the Church-Turing Thesis, but you probably don't know the law of scènes à faire or contributory infringement. Slashdot chestnuts like Amazon.com's one-click patent and the SCO v IBM case make only passing appearances, leaving room for more interesting examples about Garbage Pail Kids and Banana Protective Devices.
Chapter two of the book gives a quick-and-dirty overview of the economic motivations for patent law. I should tell you that Ben Klemens and I were both students at Caltech's PhD program for Social Sciences, so I was half expecting him to whip out the infinite sequences of integrals over a Riemann manifold here. But he either didn't think the Greek relevant or chose to spare us mere mortals, because he keeps the theory pretty simple: patents are supposed to maximize the size of the market. If nobody is providing a good, patents should induce somebody to provide, but if many people are providing the good, then a good patent regime shouldn't diminish that number of providers to one.
You can see where this is going: patents on software are often not necessary to induce code-writing, and when they do exist they seriously diminish what could have been a crowded market. He ties this to finding the optimal breadth of a patent, because a too-broad patent gives the owner a cheap monopoly over a range that could have held a large number of competitors.
The next chapter is the computer science chapter. He goes into detail about how we go from transistors to instruction sets, which turns out to be important in the next chapter when patent examiners try to draw a line between the two. He also talks about how one could write up a symbol table to translate any given program into lambda calculus expressions, which are pure math by any definition of the term. If pure math isn't patentable, and a program can be translated into a pure mathematical expression, then where does the program get off being patentable?
Chapter four shows how U.S. law went from disallowing software patents to letting through patents on anything sort of techy-sounding. The first alibi by the courts is that code may be pure math, but a machine on which is programmed pure math is a physical device, just like a toaster. Klemens tries to address this via the discussion above about how the transistors are soldered on at the factory, but the programs coded onto them are just states on a state machine. He brings up the breadth problem above: a patent for an algorithm on any general-purpose computer is a patent of huge breadth.
The second alibi by the courts is that the application of an equation to a useful purpose is distinct from the equation itself. As tenuous as such a distinction is, it hasn't held, so there are now patents on the books for math applied to useful purposes like a "Method for performing complex fast Fourier transforms," a "Method of efficient gradient computation," and a "Cosine algorithm for relatively small angles."
That's the thrust of the theory that Klemens covers. Most of the rest of the book shows how software patents in the real world create problems. He cites interviews with venture capitalists by a University of Texas researcher in which they say that they just expect to be violating patents left and right in the normal course of business. He cites another set of researchers who surveyed technologists in a variety of fields, and found that companies in most fields mostly patent in order to protect their inventions, while computing companies are most likely to patent so they can game the system.
Klemens seems to be downplaying the role of open source in all of this. In Chapter 6, he points out that the U.S. software market is evenly split between software companies (32.6%), consultants (36.4%), and in-house software (31.0%). That is, most software isn't written by software companies, and some of that not-software-company software is OSS. It's the decentralization, not the openness, that matters. Patents have never been applied to a decentralized industry before, and they don't work there because independent invention is not a valid defense against claims of patent infringement, and independent invention is inevitable in such a decentralized industry.
Finally, the book covers copyright, which makes sense because if patents really are going to be thrown out, then coders will be relying on copyright more. For example, the GPL is based on copyright protection. The recommendation here is that copyright be aimed at detecting plagiarism anywhere along the line, so if you cut and paste my FORTRAN code and run it through f2c, your C code is still infringing my copyrights. He points out that software is uniquely well-suited to enforcing copyright all along the development process, because coders have backups and RCS repositories that poets don't keep.
Klemens's anti-software patent position happens to be the position I believed when I started reading, so I can't say that he changed my mind. But he did point out many arguments, stories, and facts that I hadn't known (or had misheard) beforehand.
Klemens covers a lot of ground in an ADD-friendly manner, and if you don't like one of his arguments against software patents, he has ten more for you to try out. For me, he made the injustice in software patents salient, and by the end of the book I wanted to find a machine to rage against—or to at least send my copy of the book to my Congressman. In fact, on the Brookings Institution website, Klemens suggests political action, because Congress has patent reforms in process that won't fix software patents without a push from the rest of us. Hopefully, this book will be a step in the right direction.
You can purchase Math You Can't Use: Patents, Copyright and Software from bn.com. Slashdot welcomes readers' book reviews -- to see your own review here, read the book review guidelines, then visit the submission page.
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Huh? (Score:3, Funny)
Roughly 90% of web content consists of discussions of software patents...
Do you mean 90% of software patent discussions happen on the Web? I'd believe that a lot more easily.
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thanks,
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No, that's a feature.
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Also, it does not show Firefox as an error. It shows firefox as an error.
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Also, it does not show Firefox as an error. It shows firefox as an error.
Actually on mine it shows both "Firefox" and "firefox" as errors. But if it were to be correct, it would only show "firefox" as an error, since it is a proper noun and *should* be capitalized. For instance, FF shows "venice" as a misspelling and "Venice" as correct.
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Assuming you have 2.0, that is.
Software patents are great (Score:3, Informative)
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What's her problem? (n/t) (Score:2)
duh (Score:2)
Roughly 90% of web content are porn or porn related is more believable.
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Well, I for one think software patents are pretty obscene.
My thoughts as well. (Score:2)
It makes the review and book much more entertaining if you replace all occurances of "software patents" with "porn" and all closed source vendor names with "midgets".
-Rick
90% huh? (Score:2)
As a spokesperson for lawyers (Score:5, Funny)
Roughly 90% of web content consists of Porn (Score:2, Insightful)
When a review or article begins with a statement that is so absurdly incorrect, it makes me wonder how factual or researched the rest of the review can be. One can only hope that the Author meant to say that 90% of discussions over copyright are related to the web or occur on the web. Otherwise, I would take the
What is a software patent (Score:5, Interesting)
The simple question "what is a software patent?" is suprizingly difficult.
For example, if you were to design a new carburator, there's an excellent chance that software would be a key component in its preferred embodiment. If so, does this disallow a patent? And if so, does that mean replacing any component in a patented invention with software protect you from allegations of patent violation?
But what about inventions that are pure computing? Well, patented inventions that only involve computing are rarer, because pure computing doesn't actually do much good. That's just moving electrons around. There generally are real-world components and ramifications to the thing - otherwise, why bother? Even the infamous one-click shopping patent involves the exchange of money for goods - thus software is only a one part of it.
I would think a bullet-proof definition of software patents is needed before they can be forbidden.
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Well put. Processes (and methods) have always been patentable in the U.S (see 35 U.S.C. 101). A good example is Charles Goodyear's 1844 patent on his vulcanization process, which recites a series of steps for making rubber. Today's pioneering processes (nanotechnology, biotech, etc.) all rely to some extent on computer-controlled processes (and thus computer programs), which would be excluded from patentin
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The original case that started the software patent issue was a rubber company that embedded a series of sensors in the mold to monitor the curing process. All the data was dumped into a computer which popped the part out at the optimum time. Other than the use of the computer to monitor &
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And the rest of it is a business process, not a technical process. Business processes weren't supposed to be patentable, either. Business process patents and software patents tend to go hand-in-hand, IMHO.
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Isn't this like saying that because you designed something that includes a clock in its design, it is not patentable because you don't (or can't) have the patent on the clock? Because one
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Agreed on both counts. But here's a third question: Could you patent the software without reference to the carburator? Answer: No because software, in and of itself, is not useful. It has to be applied to some real world problem for it be useful, and thus patentable.
So given that, what do people mean when they say "s
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Regarding the trivial and obvious, that is already unpatentable, at least in theory. In so far as the need to better weed them out in practise, we are in full agreement.
Roughly 90%? (Score:2)
Who would buy this book? (Score:3, Insightful)
Chances are someone who hates patents knows why they hate them, and doesn't need a book to tell them why. Someone who likes patents isn't going to buy it thats for sure. People that don't care ether way will probably find better things to read.
Re:Who would buy this book? (Score:4, Insightful)
A Time for War: The United States and Vietnam, 1941-1975 [amazon.com]
In Retrospect:: The Tragedy and Lessons of Vietnam [amazon.com]
Dereliction of Duty: Johnson, McNamara, the Joint Chiefs of Staff, and the Lies That Led to Vietnam [amazon.com]
I wanted a relatively unbiased view and then arguments from both sides. It's a good method if you have the time and a willingness to actually understand the issues.
Cheers,
Dave
Parent
This just in... (Score:2)
Becoming a statistic (Score:2)
Welcome to
Approximately 67% of statistics.... (Score:2)
90% (Score:2)
Seriously though, how the hell does one come up with a number like that. I've seen less than 10% myself.
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Bob: So, me and Patty were going through "software patents" on the internet in my office.
Joe: They say it makes up 90% of the web conversations.
Bob: Tell me about it. Patty and I have tons of material left to look at. Not that her own assets aren't something to like at, eh?
And being the total freak that he is, didn't catch the drift.
Patents do maximize the size of the market (Score:2)
--Rob
Is the Klemens who was a grad student at tech? (Score:2)
If it is and you are reading this congrats on your book.
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Obviously not! (Score:2)
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On a side note, I ought to hit "preview" more often . D00H
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This has less to do with software patents, per se, than just bad patents in general.
Re:You Can't Patent Software: Patenting It Is Wron (Score:2)
exchange of information and ideas about computer programming, we hold
that it is protected by the First Amendment."
By that logic, you can't patent blue-prints, schematics, technical drawings, or descriptions of a process, a method or a model. In fact, the patent application itself is "an expressive means for the exchange of information," therefore, anything that has a patent application cannot be patented.