In Favor of Software Patents...Why?

from the patents-kill-pirates dept

There is an old (some claim Irish) joke about someone asking directions and the response is "Well...I wouldn't start from here at all."

In his article In Favor of Software Patents, Alain Ranaud walks through his take on how to fix the patent system when it comes to software. He claims that software patents are just a little flawed:

The problem, you see, is their length. Seventeen years of monopoly is an eternity in Internet time. Instead, software patents should only be valid for seven years.

His take is that by only allowing for seven years, "patent trolls" lying in wait to pounce on a technology to become successful would lose their window in which to sue. This of course ignores the cases where lawsuits are filed almost immediately after a patent is rewarded. In cases such as those, the problem is not in their length. But why seven years? Why not eight? Or six? Or zero? By what measurement is he claiming this number, and how does he envision determining that this change, once implemented, is "successful?"

I don’t buy the argument that just because it’s software, it can’t be inventive. A position that aims to eliminate all patents might be more consistent, but I’d point to China, where piracy runs rampant [...]

Err...piracy? How did copyright infringement get caught up in this discussion? File the discussion under "intellectual properties" and we can now throw trademark and corporate espionage into the mix. Ranaud has fallen into the classic trap of assuming the patent system, though fraught with troubles, must exist for some (valid) reason and must continue to exist. However, none of his reasoning directs itself back to the Progress of Science and useful Arts that the Constitution proscribes.

Patents are meant for amazing new technologies, for that brilliant idea [...]. That deserves something.

Like a patent.

So what, exactly, is the magic reward that this "patent" gives the brilliant inventor? If the software developer truly is deserving of a reward for their invention, won't the market provide them with that? Bill Gates became well rewarded by the market before amassing patents to stifle the industry. A major problem with this line of thinking is that it leads to big grey areas, which in turn lead to abuse. Ranaud does not discuss who or what determines that a software algorithm is truly "brilliant." This is likely a bigger problem in the current system (patenting simple or overly broad ideas) than the length of those rewards.

In addition, software systems typically build on one another. If a "brilliant" idea leads to an entire new field of study or application, why should a tollbooth be put in place for seven years by someone unwilling or unable to compete beyond their one stroke of brilliance?

Ranaud is welcome to his opinion of changing a system that has as many problems as the patent system does. But blindly accepting that the system must remain, without any measured justification for the change, is a band-aid approach at best.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Tom, Mar 25th, 2010 @ 10:04pm

    Stiffle?

    Are you talking about Stiffler? You might want to change it to "stifle".
    Tom

     

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  2.  
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    Cheong, Mar 25th, 2010 @ 10:08pm

    I'm having a some trouble understand this... does patent be granted enforcable across country boundary?

    If not, use patent in US for combating piracy in China is pointless...

     

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  3.  
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    Anonymous Coward, Mar 25th, 2010 @ 10:15pm

    Owners of software ideas are rewarded by shipping their own applications, not by sucking money from others.

    Had the owner of CP/M patented the details (filesystem. memory structure, etc...) of it, DOS may not even exist(remember, Microsoft started as a small company and quite possibly cannot afford to pay the loyalities)...

     

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  4.  
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    Mike Masnick (profile), Mar 25th, 2010 @ 10:29pm

    Re: Stiffle?

    Oops. Fixed.

     

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  5.  
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    sinsi (profile), Mar 25th, 2010 @ 11:34pm

    There is an argument about how to zero the EAX register. Some say 'xor eax,eax', some say 'sub eax,eax'.
    Since that is how software is eventually written, surely Intel own ALL software patents?
    Or should I quickly file a patent for 'Zeroing The EAX Register' and pick one?

     

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  6.  
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    The Mighty Buzzard, Mar 25th, 2010 @ 11:54pm

    Re:

    File two and pick both.

     

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  7.  
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    Cheong, Mar 26th, 2010 @ 1:15am

    Re:

    I guess people will response by NOT then AND the result...

    Of course it's way slower and uses more registers, but that's what you do if blocked by software patent and not to risk stepping on it.

    The could be an example on how software patents inhibit advance of the whole I.T. realm. (Others have to use slower workarounds to avoid paying for it... worse yet is workarounds may not be available for most given problem...)

     

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  8.  
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    That's my story, Mar 26th, 2010 @ 5:11am

    Patent a book today

    Software is language and therefore its construction is prose. If one is allowed a patent on prose, then it follows that stories are also patentable. I beleive it has been tried and was shot down. Why does the logic used or that decision not apply to software?

     

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  9.  
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    Steve R. (profile), Mar 26th, 2010 @ 5:44am

    It's no Joke

    The Irish joke that you quoted: "Well...I wouldn't start from here at all." nicely sums up the problem with countering so-called intellectual property. It seems that too few people question the legitimacy of patents/copyright; they seem to automatically accept the motherhood concept that the creator of content has need to "protect" content.

    Of course, at this point I need to clarify that I am not against a content creator having a LIMITED right. The concern, is that the perceived "right" is being expanded to the detriment to promoting progress in the arts and science.

     

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  10.  
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    Chris Jagalla, Mar 26th, 2010 @ 7:24am

    Wrong Starting Point

    At the very least, questioning our base assumption about the patent system leads us to critically think about all the underlying components. One may question the "starting point" and ultimately decide that the flawed endpoint is due to some cog down the line. At this point I think most everyone is in agreement regarding software patents being a little off, but there are so many possible solutions, it's a little murky as to which would work best in practice. We need to step back outside of the patent system and decide what we really want to protect and reward. One of the interesting aspects of patent reform is that the opinions out there are so diverse. For anyone interested in seeing a panel on this heated debate, I recommend The Future of US Patent Law put on by PRG (more info).

     

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  11.  
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    gerp, Mar 26th, 2010 @ 7:52am

    aw come on

    Is it that hard to figure out the benefit of patents? It is a very simple, well-understood business principle. You spend money on R&D. You come up with something that can help your customers and make you money. Your competitors see what you have done, and have the ability to clone your solution quickly and without any of the overhead YOU put into R&D. Without some mechanism to give you ownership of the solution you spent money on, you would be at a DISADVANTAGE to your competitors.

    That is the logic behind a patent system. Is a patent system a good idea? Maybe. Maybe not. But please, you are hurting chances for improving the state we are in with hideously awful patent laws by so loudly making such a one-sided argument.

    I care a great deal about improving software patent rules (or, if it can be done in an effective way, completely removing them), and I don't like to see people who are on my side looking like idiots by ignoring globally accepted principles.

     

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  12.  
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    lux (profile), Mar 26th, 2010 @ 9:12am

    What?

    I work for a medical software company that allows physicians and providers to view their patients from any device (iPhone, Blackberry, you name it).

    Why would we _not_ want to patent this software?

     

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  13.  
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    DJ, Mar 26th, 2010 @ 9:30am

    Software is like art or a novel

    I'm probably one of the few people that believe this, but in my mind good software is an art and should be protected as such. It is also very much like a novel where a plot is followed to get the desired outcome. There are already laws in place to protect these items and they are copyright laws. I would expect to be able to protect my software like a novel. If someone rips it off and tries to sell it as their own I have an option to sue them.

    However, if they develop software that does the same thing (or a novel that has essentially the same plot), I don't have much of a leg to stand on. They did not "steal" anything from me that was tangible. I would have to compete in the area of being the best instead of just being the first.

    If I cannot compete by writing better software then maybe I shouldn't try to compete.

     

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  14.  
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    greg.fenton (profile), Mar 26th, 2010 @ 9:38am

    Re: aw come on

    Your assumption is that competitors do not spend any money on R&D because they are simply awaiting the output of your R&D dollars. If they are not innovating, they are not servicing or interacting with customers during your development phase. This is a major DISADVANTAGE.

    You, on the other hand, are. This is your ADVANTAGE. When you finally reveal your product, you have a major jump ahead of those that sat idle:

    • you have established a customer base during development and can network from that base.
    • you are the one that invented this item. You are the one that has the advantage to improve on this invention much faster than anyone else because you know it.
    • you are the "authority" on this invention. Everyone else is a wanna-be. Use that fact.

    Please define what you mean by "globally accepted principles". From what I can see, an idea that a government granted monopoly could encourage innovation was established many, many years ago. Today, it is simply accepted that this happened while there is little (any?) evidence that advancement of the sciences and/or arts has actually occurred because of those monopolies.

    On the flip side, there are many, many, many examples of advancements being stifled specifically because of those monopolies. Radically few lawsuits are about "knowingly violating patents", whereas many lawsuits are about "you are doing something that sort of is kinda like what we got a patent on"; often the similar thing was independently invented.

    So, please, who is it that has a reasoned approach to globally accepting these "principles"? And just what is it they are accepting?

     

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  15.  
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    vastrightwing, Mar 26th, 2010 @ 9:39am

    Re: aw come on

    I'm a software engineer and I endorse removing all patents from software. 1) I would end up in prison if someone convicted me on all the patents I violated. I must violate several patents every day I write code. Of course, I don't know which ones I violate, and I don't care. My job isn't trying to make sure I don't violate patents, but to solve business problems for my employer. 2) If I create something unique and valuable, I depend on my execution of it and I would never patent my idea, because then I've disclosed how I did it! The patent itself involves explaining your idea, so by not filing a patent, I'm in effect securing the idea for my own use first. Sure, it can be reversed engineered, so what? If someone else executes my idea better than me, so be it. 3) It's a scare tactic that innovation would stop if you couldn't patent anything. I want to see proof of that. I suggest that the current patent system is causing more harm than good. 4) I don't think it's possible to improve patent rules, they should be eliminated.

    If you can't compete by your execution, business plan and intelligence, then don't try to do it at all. Let someone else do it.

     

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  16.  
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    greg.fenton (profile), Mar 26th, 2010 @ 9:42am

    Re: What?

    Because you will be inviting patent wars against you.

    Oh, and I work for a company that develops software that allows both patients and providers (healthcare workers) to view eHR data from any device (mobile or otherwise).

    Oh, and so does Microsoft, and Google and a host of other companies.

    Either you want to patent to block others from entering the space (you can't compete?) or you do it to protect yourself from others blocking you (they can't compete?). So, exactly what is it that patents are bringing to "progress of science"?

     

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  17.  
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    Dan, Mar 26th, 2010 @ 11:24am

    The joke?

    I am not familiar with that punch line, anybody got a link to the joke (or willing to type it out)?

    Knowing the actual joke would probably make the article more interesting.

    Then again one could say that our Patent System is the joke.... maybe that is the point.

     

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  18.  
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    greg.fenton (profile), Mar 26th, 2010 @ 11:57am

    Re: The joke?

    Google finds it in lots of places...and attributes it to lots of cultures.

     

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  19.  
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    greg.fenton (profile), Mar 26th, 2010 @ 11:59am

    Re: Re: The joke?

    It isn't obvious in my browser due to the style, but "Google finds it" in the above is a hyperlink to a Google search.

     

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  20.  
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    Jake, Mar 26th, 2010 @ 12:46pm

    Re: Software is like art or a novel

    That's not a bad idea for individual programs, but I'm not sure how it'd work for programming languages or network protocols and the like.

     

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  21.  
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    angry dude, Mar 26th, 2010 @ 12:49pm

    Re: Re: aw come on

    "1) I would end up in prison if someone convicted me on all the patents I violated"

    Luckily for you, poor bastard, patent law is not a criminal but a civil law

    It's all about money, punk

    "If you can't compete by your execution, business plan and intelligence, then don't try to do it at all. Let someone else do it."

    You forgot one thing - money
    Let Billy Gates steal all your ideas and do it
    Ah you don't have any ideas ? Then you are fine

     

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  22.  
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    Vincent Clement, Mar 26th, 2010 @ 1:27pm

    Re: aw come on

    Your competitors see what you have done, and have the ability to clone your solution quickly and without any of the overhead YOU put into R&D.

    If an invention is easily or quickly copied, then perhaps it should have never been given a government-mandated monopoly in the first place.

     

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  23.  
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    Anonymous Coward, Mar 26th, 2010 @ 1:52pm

    Re: Re: aw come on

    Sometimes incredibly brilliant inventions that took decades to develop can, once described in a patent or observed, easily be copied. One example that comes to mind is the engine compression brake invented by a man named Clessie Cummins.

    According to his biography, it took more than two decades for him to come up with a solution to the problem. Once he solved the problem, engineers laughed at him because they thought there was no way a sole inventor could come up with a design when they had struggled to develop one and failed.

    The Jacobs company saw the brilliance of the patented design and turned it into a huge market success. Even today Jacobs remains a leader in these brakes though the patent has long expired. The same engineers who laughed at Clessie later bought Jacobs' produced brakes by the boatload.

    After you see how the design works you realize that:

    (1) The actual design is not really that complex and very easy to copy.

    (2) It took a brilliant thinker to figure it out in the first place.

     

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  24.  
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    greg.fenton (profile), Mar 26th, 2010 @ 2:21pm

    Re: Re: Re: aw come on

    So, how does Clessie having a patent "promote progress in science and the arts"?

    This is the key point that gets overlooked when a story such as the above is brought forward. People see "injustice" and the push the idea that patents would save the day.

    Was the patent system not available to Clessie at the time? If it was, why didn't it "save" him?

     

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  25.  
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    Anonymous Coward, Mar 26th, 2010 @ 6:09pm

    Re: Re: Re: Re: aw come on

    Because Clessie would not have revealed his engine compression brake to the world had patents been unavailable. So his patent promoted progress in science and the arts by encouraging him to reveal his knowledge to the world.

    I am not understanding your final point. The patent system was available to Clessie, and it did "save" him from those who would have taken his invention without compensating him for hundreds of man-hours of work and thousands of dollars in personal expense. As has happened to inventors countless times, without the protection of a patent it is all to easy for an inventor to end up left out in the cold after the inventor reveals their knowledge.

     

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  26.  
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    greg.fenton (profile), Mar 26th, 2010 @ 6:46pm

    Re: Re: Re: Re: Re: aw come on

    My error. I confused Clessie's case with another anecdote.

    Clessie's case is an interesting one, but still does not prove that the existence of the patent system supported the progress of science. It shows that someone was able to leverage the patent to get rewarded for that one invention.

    You say that Jacob is still a leader in break development. Do we have any proof that this is because of patents? Do we have any proof that because of patents that brake technology has advanced? Do we have any proof that Clessie did his research solely because he knew patent protections might be available?

    In fact, that last question really is intriguing. I'd argue that there is no way that patent protections were his motivation for a 20 year research struggle. Anywhere along the way there could have been another research party that beat him to the punch and in fact lock him out of any reward for his investment.

    People don't run marathons in order to come first. Marathoners don't suddenly stop running once the first competitor crosses the finish line. So where is the evidence or reasoning that Clessie's invention moved forward the science in any part due to the availability of a patent reward?

     

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  27.  
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    Anonymous Coward, Mar 26th, 2010 @ 7:50pm

    Re: Re: Re: Re: Re: Re: aw come on

    I suppose that depends on your point of view. Clessie did something that no one else was able to do, even though they had tried, and failed, for decades. Records from various diesel engine companies show that multiple companies had tried to develop a solution and all had failed. None were even close when Clessie developed his solution.

    So, you tell me. Clessie worked on an engine compression brake for a couple decades and came up with a robust solution that worked. He revealed his knowledge only after he had the guarantee of a patent. Was the revelation of his knowledge progress or not?

    Actually, I do not recall saying that Jacobs is still a leader in brake development. What I said was the Jacobs will still a leader, but I did not say in development. In fact, the basic Jacobs brake design has been relatively unchanged since it was patented in 1957.

    Now, you ask whether Jacobs is a leader because of patents, and whether there is proof this is so. I think the answer is yes.

    Clessie was the only person with the knowledge of how to make the brake. He applied for the patent and he chose Jacobs to make the brake. Today Jacobs continues to invest in this technology thanks to the patent that gave Jacobs time to establish themselves in this market. Had the patent not been provided to Jacobs, they would not be in the position they are today.

    We have evidence that Clessie's goal was a patent because he said so in his biography. Indeed, Clessie did a lot of things motivated by patents, as is reported in his biography, from the very first patent he got in the late teens when he was still a teenager, to his last patent in the 1950's.

    It is reported in his biography and in the history of Cummins diesel that patents were the primary reason for investment in diesel engines. I think it is fair, based on these two books, that without patents there would be no Cummins, which would be sad because the Cummins' diesel still retains many unique features and Cummins remains the largest independent diesel engine manufacturer in North America, and the loss of Cummins would mean a significant reduction in competition and the availability of diesels.

    As for your comment regarding a 20 year struggle, you are incorrect. Clessie thought that if he could solve the problem that he might well have a design that he could sell, but only if he got a patent, and this information is extremely well documented in his biography. He was motivated by getting a patent. When he finally came up with a solution, his first thought was to protect his solution with a patent before he showed it to anyone.

    Yes, it was possible that someone else could come up with a brake in that time. However, diesels had existed for six decades when he patented his brake, and others had tried and failed multiple times to develop and engine compression brake. Indeed, his former employer had an active program to develop such a brake but company documents show they they were far from a solution. Others had developed other, cruder solutions, but none was sufficiently effective, robust and cost effective to gain market acceptance. Clessie was fairly certain that he was the only person who was crazy enough to put an engine compression brake where he did.

    Of course, you have to remember that Clessie was also a maverick with respect to diesel engine design and created a diesel configuration like no other.

    The moment Clessie proved his design, in his garage, I might add, he knew he had something that was totally unique and would be highly desirable. But he also knew the risk was high that someone might steal his design. Once that happened, the design would be of no benefit to him, so the number of people that knew he had a solution was incredibly small, and none except his patent attorney saw the details of the solution.

    Clessie ran his marathon because he had faith that he would be first. He was extremely knowledgeable regarding diesel technology, and he knew all the major players. He also knew where people were looking to create an effective engine compression brake and he knew that his brake looked too complex and too weak to be effective - though the physics behind the brake is remarkably simple. In other words, Clessie ran the marathon because he was fairly certain that he was the only person in the marathon.

    You might be interested to know that somewhere around 60% of all long-haul trucks are fitted with Clessie's brake today. If that is not advancing the science, then I do not know what is.

    Next, we can talk about Nikola Tesla and the value he place on patents. You will remember Tesla because he was the man who was responsible for the energy that powers our homes and many of our electronic devices today.

    Tesla placed extremely high value on patents, and held back huge amounts of knowledge because he did not share his knowledge for free. There have been estimates that if Tesla had patented everything that was in his notebooks, which have never been made publicly available, he might well have had three or four times as many patents as he did, which numbered in the hundreds, and mankind would have been richer for the knowledge. Unfortunately, there was some knowledge that Tesla felt society was not yet ready to use.

     

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  28.  
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    gerp, Mar 29th, 2010 @ 12:18pm

    Re: Re: aw come on

    Your assumption is that I made an assumption. I am regurgitating what I learned in a business class I was forced to take in college.

    I NEVER SAID I BELIEVE THE PRINCIPLE I DESCRIBED.

    However, as far as I know, that principle is the reasoning behind the patent system. The argument you make against "my assumptions" is highly flawed.

    You say that if one is not innovating, one is not interfacing with one's customers. Says who? Who's to say they're not spending time and money marketing some vaporware they haven't yet created? Who's to say they're not selling a product that they ripped off of the last innovator?

    "you have established a customer base during development and can network from that base"

    Says who? What if I just rounded up a bunch of VC and spent it all on innovating, and I'm waiting to market it after?

    "When you finally reveal your product, you have a major jump ahead of those that sat idle"

    Says who? What if I reveal my product and nobody notices, and then somebody else with more money decides to copy my product and reveal it in a much bigger, better way?

    I didn't read the rest of what you wrote because it's clearly based on the assumption that I'm somehow a huge proponent of the current state of patent law in the world. I explained the reason why patents exist because the author of this article chose not to do so.

    If you're going to say that the patent system needs to be changed, you must pay attention to the rationale for its existence in the first place, and then examine what goals the current system achieves, and why, as well as what goals the system fails to achieve, and why. Also, you have to look at what side-effects of the system exist, and why.

    It's really simple. What I seem to see a lot here is people spinning their wheels, ignoring the reasons for why the world works, and then freaking out when somebody like myself comes along and tells you to acknowledge both the legitimacy AND the flaws of a flawed system for anybody to take you seriously.

     

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  29.  
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    gerp, Mar 29th, 2010 @ 12:31pm

    Re: What?

    Well there is no reason why you would not _want_ to patent your software, but I can think of some reasons why I would not want you to. First, let's look at what your company seems to have created. Software that works on multiple devices, which doctors can use to view patient information.

    Let's break that down. It is:

    1) Software that doctors can use.
    2) Software that runs on multiple devices.
    3) Software that displays patient data.

    Is any one of those items really all that innovative? Is it very innovative to bring any or all of these items together?

    I would say no, and I know that you may disagree, but personally, I think that this is very far from innovation. I feel that your company did not invent anything, but decided to use existing innovations in a useful way. Now, this is a good thing, don't get me wrong. I think your company should make as much money as it deserves to make based on the quality and usefulness of the software.

    I just don't personally view what your company did as patentable because it does not appear to me to be an invention.

     

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  30.  
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    Anonymous Coward, Jul 23rd, 2011 @ 7:25am

    the comon thread in all of these comments is that none of you have the faintest idea what you are talking about

     

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