Comment by linuxhansl
24 days ago
Having my name on a bunch of software patents - and, yes, I tried to get my name off them, but was not allowed - I can fairly confidently say: There is not A single worthy software patent out there. You know, one that is "not obvious to someone skilled in the art" and that actually protects a monetary investment.
Software patent are a scourge of the software industry. Patents are designed to protect costly research; simply having an idea is not costly (but it makes in medical research for example). All that software patents do is creating a minefield that hinders competition.
For software Copyright is a far better instrument. Let the one with best implementation win... That's where the cost is: Implementing, testing, shipping, maintaining. Protect that.
Sorry for the rant.
Edit: Spelling
I agree in general, but can think of at least one counterpoint: https://terathon.com/blog/decade-slug.html
Actually novel implementation is protected, paid the author's bills, and was dedicated to the public domain recently - no massive corp involved.
I’m happy for the author, but I feel like that blog post kind of supports parent commenter’s argument. It sounds like Slug would’ve been created even if patents were not a thing. They had their own use case for it, and that usecase alone was enough for the R&D investment. So patents did not encourage innovation in this case. In e.g. medicine, not having patents could arguably mean that companies don’t do as much R&D.
Seems the author made it public domain not because that'd be the best for the software industry at large, but because "holding on to it any longer benefits nobody", which means the amount they earn from it monetarily is today minuscule compared to what it was.
Parents point seems to be about that if this author of Slug wouldn't have patent it in the first place, then in general that work would have had an larger impact in the software industry, compared to this situation where the author did patent it.
Case(s) in point: all the comments on HN who independently came up with the same algorithm but couldn't publish it as FOSS because they found a patent covering it.
> Patents are designed to protect costly research
I'd argue that how they should have been, but the reality is quite the opposite. The patent framework is all about novel ideas rather than costly research, even though ideas aren't any valuable anymore - the easy stuff that is cheap to reproduce once the idea is known is already discovered.
Multimedia codecs and similar stuff are pretty patent-worthy (costly research) but their value is an exponential function of their adoption, and hence the unencumbered one always wins. Same with basically everything else.
A friend that has a degree in engineering and law who works as a patent lawyer had this to say.
Interesting physical real world problems are NP hard. That's why we have patents. Software? You can work backwards from the requirements to multiple solutions almost always. Which is why patents on software are stupid.
Copyrights are originally to protect authors because an author might create a few dozen works over a lifetime. Of which a few mich actually be worth anything. Copyrights were to protect his income and allow him to leave an inheritance behind.
Copyrights for software is stupid because most of it is mechanically generated and it goes old like last weeks fish. Quote: The source code for Windows 3.1 who cares.
I wouldn't want to abolish software copyright completely, but we would all benefit if the copyright duration was much shorter for software. Something like 20 years. That would keep source code leaks of current software toxic, but make it possible to build on top of old software (like say the leaked Windows XP source)
Anyone who has ever taken part in a software patent litigation ... or in the creation of a software patent, knows intimately that its a bunch of bullshit.
The boogieman that software patent advocates raise is that IP theft and free riding will destroy America if we don't have patents. But literally nobody is creating software to get a patent on it, and software patents don't stop anyone from replicating software.
Instead software patents are just a way for mediocre lawyers to live parasitically off the tech industry.
Imagine a world where we were so worried about bullying that we created a department to monitor all speech on the Internet, and you had to run your speech past lawyers for approval before saying anything. And you could be sued for saying anything by anyone if you didn't get lawyer approval. That would be a world with dramatically less bullying than the Internet today. AND a much worse world with much less communication. AND in that alternate world, the lawyers would argue that there would be more bullying if we put that ridiculous system to an end. And they would be right that there would be some more bullying, AND it would also be right that that degree of bullying would be worth it to have free speech.
Similarly with patents. Yeah, on the margins there might be more IP theft. SO WHAT. This system right now sucks.
It feels more like an arms-race to me. Where I work we patent stuff for defensive purposes only, so we have something when we get sued (and we have been). Maybe that's just another boogieman, but it seems unless everybody stops nobody can.
China has basically no domestic patent litigation. The way you stop the litigation is to just remove the legal rights associated with patents. Let everything become a free for all. China is just lapping everyone else right now. The lack of strong IP rights is not hurting them. Companies over there are not suffering due to not being able to invest in technology. They invest despite not having strong IP protections. Not because they have strong IP protections. And they know they can't get a monopoly with a piece of paperwork ... a patent. So they continue to innovate at a breakneck pace just to stay ahead of everyone else.
America needs to learn how to evolve our system of industrial production. Our society of lawyers and paperpushers is going to get annihilated in the next ten years at this rate.
If it's really for defense you don't have to go to the expense of patenting stuff, disclosure is enough. IBM used to publish Technical Disclosure Bulletins (TDB) - I assume for patent defence.
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Copyrights for protecting software seems likely to die on the altar of LLMs. It seems likely patents will become more important.
I hope not. That will just encourage more lawfare and market consolidation instead of competition and innovation
Hey, we can also expect LLMs to clog the wheels of the USPTO with patentslop so at least we've got that going for us.
A teammate put my name on a patent proposal he filed with our legal team. I immediately demanded to have my name taken off of it. No way I would accept having my name associated with that trash. I'm sorry you weren't able to get out of it.
I'm skeptical of non-software patents as well. So much R&D are funded by taxpayer money yet private companies monopolize the profits. Patents are supposed to keep valuable knowledge public, yet that's not what happens because the primary motivation for patent applicants is to squash competition and they have an incentive to keep key information out. It seems all patents are doing is to make lives harder for the common people.
From a laymans perspective they also don't seem to work. Apple's multitouch felt like something brand new to consumers and yet other device manufacturers copied it anyway. Facebook entire product line is dependent on ripping off competitors unique features. What's the point?
I think the point is to prevent researchers from changing jobs.
1. Researcher makes something
2. Employer patents it using researcher's name
3. Researcher gets a new job
4. Researcher makes something at new job vaguely similar to #1
5. Old employer sues for patent violation
By attaching their name to the patent, it is easy to prove they were aware of it.
i'm okay with participating in the software patent system for defensive purposes, but agreed that it is very stupid.
I disagree. If patents are to exist there is no reason software that should be an exception.
Us programmers are essentially arranging blocks. And if you arrange them in a special way you can get your stylus to follow them in amazing ways.
I don’t see why that’s very different than arranging atoms.
At the lowest level, software is always represented physically in the medium. It’s concrete.
I think the point is more that the patent office has been too broad with issuing software patents. I'm sure some are reasonable, but many are "obvious to someone skilled in the art" and should not have been issued.
You make an argument for patents not existing then, certainly they should not exist for more than 5 years, you should have exploited your discovery by then and competition is fine.
> That's where the cost is
That's where the cost <was>
I think with LLM, implementation winning is moot now.
>For software Copyright is a far better instrument. Let the one with best implementation win... That's where the cost is: Implementing, testing, shipping, maintaining. Protect that.
But this is minimally protectable, and you can copy the idea just not the exact implementation. Copyright does not have a 'doctrine of equivalents' equivalent. It also supports independent creation. Copyright also does not cover functional elements. You cannot copyright an idea, only the expression. So maybe you can elaborate more on why your point makes sense?
Yes. And that was exactly my point. If an idea is just an idea that anyone can have under the shower, there is no value to society in granting a monopoly to that idea. There was no cost to said idea. In that case is better for society to grant a monopoly on a particular expression of that idea (an implementation).
If that idea had cost (say) a billion dollars (like in some medical research or physical research), there absolutely is value in granting a temporary monopoly in order to encourage such research in the future.
Are you saying Mistral didn't invest a lot of money in discovering the invention this patent covers? I'd bet they'd say otherwise. How is the patent office supposed to tell the difference?
I don't think a "pay-to-play" system works. There's already trade secrets that allow corporations to invest lots of money in protecting things that aren't even inventions. You just seem like you're trying to figure which patents are good or bad. But if a patent is widely infringed, by the same kind of logic, it must have tremendous value as an invention.
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I've said this before, but if we look critically, we would realize copyright is an inappropriate legal protection mechanism for software. Indeed, copyright protection for software is a historical hack because people didn’t want to figure out an appropriate legal framework from scratch. You “wrote” books, you "wrote" code, let’s shoehorn software into copyright and go get lunch!
However this completely overlooks the fact that the true value of software, and theoretically what we should protect, is not the code, but the functionality it provides. Copyright explicitly does not cover functional elements -- that is the realm of patents -- and really only covers code to the extent that it has "expressive elements." Technical creativity (novel algorithms, data structures, architecture etc.) is expressly excluded.
One non-obvious and absurd implication of this is that any code that can be shown to be purely dictated by technical constraints is not protected -- https://en.wikipedia.org/wiki/Abstraction%E2%80%93filtration... via https://en.wikipedia.org/wiki/Computer_Associates_Internatio.... -- yet a simple rewrite using equivalent code constructs, like using a while-loop instead of a for-loop, can be enough to keep a snippet of code from infringing the original. (I'm oversimplifying of course, but principally this is how the law is.)
If you look back at significant copyright-related cases for software now (e.g. CA vs Altai above or Oracle vs Google), you'll realize they have twisted themselves into knots trying to apply laws intended for expressive creativity to issues that were essentially about technical creativity.
So copyright covers pretty much the literal code, and the compiled software as a "derivative work", and nothing more. Things only happened to work so far because reverse engineering and re-implementation was expensive.
But as comments in this thread are pointing it out, AI is making it very stark that the code itself matters very little. We're just now realizing how ineffective copyright has always been for code.
I have no hopes that we will figure out an appropriate IP framework for software, so I expect people will move towards other things like patents, trade secrets and trademarks. Which have their own problems, but at least they already exist and are more suitable than copyright, especially in the age of AI.