Tim Smith wrote:
Microsoft is saying it is too *easy* to be found to willfully infringe.
They want to make it *harder* for the defendant to be nailed for
willfulness. They want you, the infringer, to only be considered a
willful infringer when you have done something egregious. So, if you
did something like say "screw their patent--they don't have the balls to
sue is--let's clone their plow blade", that would be willful. In most
real life cases, infringement would not be willful if Microsoft had its
way.
I stand corrected.
As a software developer I am against software patents because they could
potentially restrict my future activities.
So if you were not a software developer, but instead were a plow maker,
would you be against plow-related patents, but not care about software
patents?
No. For a number of reasons:
#1: Writing software is the expression of ideas. Physical inventions are
quite different.
#2: In terms of physcial inventions patents can actually drive the state
of the art forward. That is not the case for software. It has been
proven that software patents stagnate the industry. Bill Gates has also
admitted this.
#3: The patent circus is being totally abused in the software industry.
It serves only as a barrier to entry. The big boys have all cross licensed.
#4: Becuase of the rapid evolutionary nature of software this year's
eureka is next year's bog standard building block. You could have the
best invention in the world patented but it wouldnt protect you against
the big boys because you can bet your arse they've got patents that
you've infringed just getting your product to market. So the old
"defence for the little guy" argument is bogus in software.
As a human being I am even more against software patents because as
computers and software become more important in the running of the
world, driving of new breakthroughs, and mankind's future in general it
seems fucking ludicrous to me to allow any individual, company or
government to monopolise control. Software development *must* be free. I
think future generations will look back on us and comment on how stupid
we were for allowing all this shit.
Can't you say the same thing about all patents? If your position is
that there should not be a patent system at all, then that makes sense.
If your position is that patents in general OK, just not for software,
you haven't given any reason that really shows why software should be
different from the rest.
Because it is based upon expression of ideas. You may as well extend
patenting to literature. And believe it or not, there are people
actually pushing for this as well.
As for my position on patents in general... I'd say I've got my feet in
both camps there. It annoys me for instance every time I see the
gillette advert that trumpets their new razor has 14 patents. Its a
razor blade FFS. Looks and works pretty similar to just about every
other razor blade I've ever seen.
For instance, 100-150 years ago, you could have said about the railroads
what you say about computers and software. Do you think that patents on
railroad-related inventions should not have been allowed in the last
You compare expression of ideas with the physcial engineering process
required to lay railroad tracks? Erm ok...
half of the 19th century? (Many major breakthroughs in railroad
technology of the time, by the way, came from inventors who spent years
working on them, sinking all their savings into the work, knowing that
when they succeeded in solving the problem they were working on, they
could get a patent and so have some leverage in selling their invention
to the railroads).
As I said, I'm not against patents on physical inventions from an
idealistic pov - as long as the system isnt abused.
I don't see any reason software should be different in principle, as
long as the standard of patentability is high enough (and the bar I
think would be right would exclude about 99.99% of current software
patents).
99.9999999999 I would say. I think I heard a rumour a year or two back
that MS has 14 patents that cover mouse cursor movement?
It seems to me that knowledge is knowledge. Say two guys go down in
their basements for five years, and spend all their savings researching
engine efficiency. They both emerge, with techniques for making cares
20% more efficient. The first guy has a new design for spark plugs.
The second guy has a new algorithm for use in the engine control
computer.
Ah ok. Right. Software /*as part of a physical invention*/ that solves a
real problem /*in conjunction with a very specific piece of physical
technology*/ then fair enough. Pure software? No. Sorry. Can't see the
justification. However the uspto is allowing pure software patents. And
the EU's CII directive of a few years back would have allowed pure
software patents. Trouble is the pro patent lobby in the eu are using
exactly your argument to push for software patenting. But when they were
offered amendments to the bill that would allow software+device they
wouldnt agree, the true colours came out and they showed they were after
pure software patents.
It seems ludicrous to me to tell the first guy he can potentially have a
patent, because his knowledge involves an arrangement of atoms, and to
tell the second guy that he cannot even be considered for a patent,
because his knowledge involves an arrangement of computer instructions.
But the second guy didnt have an arrangement of computer instructions.
He had an arrangement of computer instructions /*that work in this
manner on this particular device to acheive this particular goal*/
Let's take the analogy further a bit (this actually happened to a
company that a guy who used to work for me now works for).
Let's say both patents are granted. A couple of years down the line the
arrangment of computer instructions were used to solve a completely
different problem by a completely different person arrived at
independantly. Is it fair that he should be completely at the mercy of
the original guy after he has spent 5 years etc etc? I don't think so.
The guy in question had spent years bringing to market a specific piece
of software. They had to rewrite it because it infringed on this patent
already granted. But the best bit was that the patent owner wasnt even
in the same industry. Had nothing to gain or lose by my mate's company
taking their product to market. It was basically the same algorithm. And
heres the problem. The patent guys at big companies at microsoft are
deliberately writing their patent applications in virtual gibberish to
make them as broad as possible.
Bill Gates himself said that had people understood patents 20 years ago
the industry today would be at a standstill. Microsoft was never in
favour of patents until they'd plateau'd and were simply looking for a
way to protect themselves from falling.
Look how fast google and facebook et al have appeared. How many more
potential success stories like this have never happened because of
software patents? Do we really want a system that protects the incumbent
dinosaur with its 20yr old tech more than it protects the hungry guy
with the new thing? I dont think so.
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