[Discuss] Self-introduction and more on software patent

[Hsuan-Yeh Chang]

On Fri, Sep 30, 2011 at 8:23 PM, Bill Bogstad <bogstad at pobox.com> wrote:

> So you are suggesting filing a single application per program and
> throwing every idea that wasn't in your CS textbook into the
> application?  I'm not sure that would make the examiners happy as it
> would be a mess of unrelated ideas, but okay.  I did a quick check of
> US patent fees and it looks like there are extra fees if you have more
> then 3 claims, more then 20 claims, multiple dependent claims, every
> 50 pages over 100 pages, etc.  It looks like it would be easy to go
> over $500 even if one is a 'small entity'.   My actual experience with
> filing patents is (almost) non-existent, so maybe I'm misinterpreting
> the charges that would be involved.
>

Software developers are smart people.  It would not take too much of your
time to learn the basics of patent application drafting.  The USPTO's
website also has many introductory tutorials which may be downloaded for
free.  I would suggest that anyone interested in this topic should check it
out.  Or, spend an afternoon in Barnes Noble, and you should have some
better ideas on patents.


> You also seem to be suggesting that not using correct language/style
> in the application will still be sufficient to get protection.  Does
> this mean I could just print out copies of my manuals, design docs,
> and source code and ship them to the patent office with a check?   My
> impression has been that to get anywhere with the patent office you
> have to very carefully words things in a language that most
> programmers don't know.   Maybe that's not needed if you just want to
> make sure that the patent office has a record of your ideas rather
> then actually having a patent issue.   It would be interesting to see
> how the patent office would react if it started receiving what were
> essentially document dumps where the filer had no intention to ever
> follow through on their application.
>

As I said previously, the person knowing the rules plays the game better.
Filing a patent application can serve different functions, which include: 1)
to have the idea published as a preventive measure, and 2) to ultimately
seek patent protection.  The presumption here is that you are filing a
patent application for protection purposes.  Examiner's would not even
bother looking at your applications, if you expressly abandon them AFTER
publication at the 18th month.  The patent office has already received tens
of thousands patent applications for ridiculous inventions.  I believe that
they wouldn't mind to take hundreds or thousands more from the open source
community.  I believe at least one of the BLU members has an Examiner
friend.  Please feel free to verify this with any patent Examiner.
Nonetheless, if one is serious about seeking patent protections, I would
still recommend using a qualified patent professional.

You persist in calling current patent legislation part of the
> Constitution.  It's no more a part of the Constitution then the
> legislation creating NASA, the FDA, Social Security, or the Interstate
> road system.   The Constitution authorizes but does not require there
> to be patent or copyright law in the USA.  I am not familiar with
> patent law changes in the US, but I know that in the last 100 years
> Congress has changed the law or ratified treaties to change copyright
> law something like seven or eight times.  So it would appear we make
> changes like this all the time.   Look at recent changes to increase
> the length of copyright.  Opponents pointed out that Congress keeps
> moving the bar farther and farther out and suggested that this was a
> violation of the requirement for "limited times".  As I understand it
> the courts decided that as long as Congress gave a specific number
> they could change it to anything they wanted.   If Congress wanted to
> change the length of a patent to 30 seconds, I don't see the
> Constitution standing in their way.  Now clearly your are right in
> that the open source community hasn't managed to get Congress to
> change the law, but please don't make it sound harder then it actually
> is.  Also don't forget that the patent office denied applications for
> years which involved software and it was a series of court case (not a
> change in legislation) which changed this.  It would have been trivial
> at the time for Congress to pass a new law saying, no that's not what
> we want.  (Now, of course, there are entrenched interests with lots of
> lobbyists to oppose this.)
>

To change law is one thing, to abolish an entire body of law is another.
The patent laws and rules has been changed so many times over the past
hundred years, but none of the changes has delineated too much away from the
core value of the patent law.  Yes, you are right in that the Constitution
does not recite "patent" nor "copyright."  However, how would you propose to
the Congress what to do to promote the progress of science and arts by
granting "exclusive rights" for "limited time" for people's writings and
discoveries?

We should thank Disney for the recent change of copyright law for the
extended protection.  Mickey mouse is about to enter into public domain
under the old law.  Can you image what would happen when everyone in the
world can copy mickey mouse without paying Disney a nickel?

 I am suggesting that changing US
> patent law so that software went back the way it was before those
> court cases might be a good idea.   All the US would be saying to
> other countries is that we don't believe that patents are the way to
> protect software, use copyright instead.   i.e. Feel free to use any
> ideas you want when you write your own software, just don't copy any
> of our code.  I suspect that for most countries this would be a net
> win for their local programmers as I think most software protected by
> patent probably originated in the US.   Eliminating patent protection
> for whole classes of programs would make it easier for their local
> industry to compete with the US.  (And if you believe RMS, it would
> help the US as well as it would increase innovation in software.)
>
>
I know "intellectual property" is somewhat a misnomer, but I don't see any
problem using the term "intellectual property" to refer to a set of
intangible assets.  Patent and copyright are two different bodies of law
which are designed to protect different things.  It is often said that
there's already copyright protection for software, and people don't need
double protection.  This is a somewhat loose statement as many things are
protectable by more than one set of intellectual property law.  For example,
closed-source software codes can be protected by both copyright and trade
secret.  Can you argue that we already have copyright protection, why trade
secret?

Also, copyright protection for software codes can be problematic by itself.
The copyright law is designed to protect writings and artistic works that
have "originality" -- meaning the works must have original creative value to
be protectable, such as poem, fiction, paintings, etc.  Certain writings,
such as legal documents or collection of data (like white page), lack
originality and thus cannot enjoy copyright protection.  Many people have
challenged the originality of computer software codes.  Some people have
argued that computer codes are merely a set of instructions that ask a
general-purpose machine to perform certain acts.  For example, can anyone
tell me where's the "originality" of my following code:

   main()
   {
       int i;
       printf("Hello BLU!\n");
       for (i = 0; i < 10;i++) {
          printf("i = ", i , "\n"); }
   }

I would say the "originality" of my above silly code is ZERO.  Yet, current
copyright law still protects it and prevents anyone from copying it without
my permission.  How would you argue for the propriety of this part of the
copyright law?

Back to patents, I don't want to argue if the patent system would promote or
demote the innovation of software industry, because I can't.  I agree that
many existing software patents shouldn't have been allowed in the first
place.  But in the past decades, almost no one in the open source community
has reacted to it in a proper and feasible way (namely, react by taking the
lowest energy path).  Also, almost no one in the open source community seems
to have really understood how to ride on the current patent system so as to
protect the interests of open source community, and help the patent office
to eliminate bad software patents.

My two cents are to file more patent applications by the open source
community.  If you don't have money, try to get your ideas (not just codes)
published (preferably by the patent office) to bar others from getting a
patent against you.  If you have money, try to get one or two patents for
yourselves and license them back to the open source community.  You may have
thousands of reasons why you don't want to pursue a patent.  But to the eyes
of proprietary software vendors, there's only one reason...

Patents are really like weapon competition.  You don't get to discharge your
enemy's nuclear weapon by asking the united nation to change international
law.  You get your enemy to discharge their nuclear weapon by owning more
nuclear weapon.  Should you have none, you are a loser forever.  I know, you
are likely to challenge the propriety of this analogy, but you know my
point.

HYC