Why It's Mathematically Impossible To Avoid Infringing On Software Patents

from the scalability-problems dept

In 2008 James Bessen and Michael Meurer came out with a truly excellent book, Patent Failure. It's chock full of excellent information and a pretty wide survey of the research showing just how much patents harm innovation. While I don't necessarily agree with the "solutions" proposed, the key thesis of the book makes a tremendous amount of sense: to have a functioning market, you need property with clear borders. If the borders aren't clear at all, the end result is that no one knows when they're trespassing or even what they're buying, and the benefits of a market collapse, and instead you get mired down in legal disputes. That's exactly what we're seeing with patents today. Of course, one of the key reasons for this -- as we've been explaining for years -- is that patents are not property -- and thus the attempt to force property-like rules on something that is naturally abundant is going to make it impossible to creates reasonable boundaries.

Tim Lee wrote about the book, highlighting this very point right here on Techdirt soon after the book came out in 2008. Apparently, it's stuck with him. Lee, along with Christina Mulligan at Yale, have built on that idea to write an excellent research paper that explains how it's effectively impossible to actually avoid infringing on software patents. The key? It's a scalability problem.

Lee and Mulligan have written up a shorter summary of the piece at Ars Technica that makes the point clearly. Because software and software patents don't have "defined boundaries," you really have to go through every single software patent to make sure you don't infringe -- but that's a problem that's insurmountable:
we estimate it would take at least 2,000,000 patent attorneys, working full time, to consider whether all these software-producing firms have infringed any of the software patents issued in a typical year. Even if firms wanted to hire that many attorneys, they couldn't; there are only 40,000 registered patent attorneys and agents in the United States.
This isn't surprising. While some people assume that patent infringement is all about one company "copying" another, in the vast, vast majority of cases it involves independent invention (often of the obvious next step in a process). The infringement couldn't be prevented, because the companies were just building what they needed to build to serve the market, and it's basically impossible to check to see if you actually infringe on another patent. Some patent system defenders pretend it's easy to find these patents, but that displays a lack of understanding about the true size of the problem.

As Lee and Mulligan note, companies infringing on software patents have nothing to do with companies trying to copy others or "get something for free", and everything to do with the fact that it's "mathematically impossible for them to do anything else."


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Mar 12th, 2012 @ 12:46pm

    Too bad Mike. If it's acceptable for Youtube to be "too big to check", then the patent system can also be "too big to review".

    If you can come up with a better system, then perhaps we can solve both problems - and no, getting rid of patents and copyright isn't an answer, except in your fantasies.

     

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  2.  
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    Steph, Mar 12th, 2012 @ 12:55pm

    The trolls have found this weakness, and exploited it

    "If the rebels have obtained the plans you're talking about, it is possible, however unlikely, that they will find a weakness, and exploit it."

    It's all a numbers game, and the trolls are exploiting it. They know you can't throw a dead cat without infringing on a patent, so they pull out their shotgun and use a spray and pray method to fire at anyone who writes software for anything. And as the burden of proof is on the patent holder, they usually win by default if they hold a patent that's anywhere near close to what the defendant is using.

    This is why Article One and RPX (are they in talks yet? dating? seriously, those two ought to be at least courting one another...) are so profitable. They solve the problem where it starts: the patents themselves. Article One "prior arts" them out of usefulness, and RPX buys them on behalf of subscribers before anyone else can.

    Seeing the numbers is truly staggering, and it exposes the problem really well. Numbers usually do that.

    Cheers,

    Steph

     

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  3.  
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    Anonymous Coward, Mar 12th, 2012 @ 12:58pm

    Re:

    It's too bad that those situations are not in any way comparable, unless the patent system is run by a private corporation or YouTube is run by the government.

     

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  4.  
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    Anonymous Coward, Mar 12th, 2012 @ 12:59pm

    Sounds like someone needs to patent a process for determining whether or not one software process infringes on another's.

     

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  5.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:00pm

    Response to: Anonymous Coward on Mar 12th, 2012 @ 12:46pm

    ANALOGY FAIL! YouTube has videos, while the patent system has patents. Since a video is not a patent your analogy FAILS.

    Also Mike has presented the solution to this problem many times if you will care to go read. He's done you one better actually by coming up with a meta solution to the meta problem.

    First, you pick something to try. Anything will do, let's not get mired in the details. You then enact legislation to try that thing. How you do this is up to somebody else, let's not get mired in details. Then after a year you see if it worked. How you do this is undefined but let's not get mired in details. Either way, everyone will agree on this "success yardstick" and how to interpret it, so you will be able to then clearly move forward based on your experimental results.

    IT'S ALL SO SIMPLE! It's lucky we have such brilliant bloggers to come up with concise solutions like this one that no dumb legislator, politician, or economist could ever come up with in a million years!

     

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  6.  
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    Loki, Mar 12th, 2012 @ 1:02pm

    Nonsense, using RIAA/MPAA mathematics, all things are possible. In fact, with RIAA/MPAA mathematics, I'm rather surprised we don't have a functional TARDIS yet.

     

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  7.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:04pm

    "...it would take at least 2,000,000 patent attorneys..."

    That's the plan, baby!

     

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  8.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:04pm

    Sure you can afford to train and hire 2,000,000 patent attorneys, at a $100,000 annual salary, and 5+ years of training first. It's only a $200,000,000,000 annual expense. That's only 2,500 times more money then the richest guy on earth has. And most programs only rake in millions of dollars, so say a $10,000,000 annual profit, that's merely a $199,999,000,000 annual loss.

     

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  9.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:05pm

    It's not a bug, it's a FEATURE

    The full-employment act for another bottom-feeding species of lawyer.

     

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  10.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:09pm

    Re:

    Writing the software to do that is easy.

    A process flow would consist of the following:

    Accept input of new process to be checked.
    Flash random patterns on screen
    Reply "Yes"

    The difficult thing is writing a program to tells you which one(s) is/are infringed.

     

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  11.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:13pm

    What music is it that I hear playing in the background?

    Note to self: This is not a scene from Terry Gilliam's Brazil... At least I don't think it is... But, at this moment, I have no objective way of making a determination, so I'll have to let the story play out and see how it ends. [Reaches for the popcorn.]

     

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  12.  
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    MrWilson, Mar 12th, 2012 @ 1:21pm

    "we estimate it would take at least 2,000,000 patent attorneys, working full time,"

    So what you're saying Mike is that you're against job creation!

    /s

     

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  13.  
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    E. Zachary Knight (profile), Mar 12th, 2012 @ 1:21pm

    Re:

    If it's acceptable for Youtube to be "too big to check", then the patent system can also be "too big to review".

    I don't think this line means what you want it to mean. In that you have failed in your attempt to rebut Mike's article.

    Youtube is too big to check from Youtube's end. Why? Because everything under the sun that has been fixed in a medium since 1923 is automatically covered by copyright. It is mathematically impossible for Youtube to compare everything uploaded to every single thing created since 1923 and at the same time judge whether it is infringement or not.

    On the other hand, it is perfectly acceptable for the owner of a copyright to do the policing for that owner's own copyrights.

    Same thing here with software patents. It is mathematically impossible for a software developer to compare their software with every software patent for infringement. However, the owner of the software patent is free to police its own software patents.

    As for a solution, I think some minor changes can be made for both areas of IP law. However, you and your ilk are not interested in any real solutions. You only want increase while logic, common sense and sanity call for rolling IP law back.

     

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  14.  
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    Chris Rhodes (profile), Mar 12th, 2012 @ 1:24pm

    Re:

    - AC Review -

    AC claims straight up that patents being too big for anyone to avoid infringing on them is the best system. I detect no hints of sarcasm, nor any signs of the obvious cognitive dissonance that such a statement must bring (if it is impossible to know that they are infringing, how can they be said to be "stealing" someone's idea?). Furthermore, he claims to want ideas for a better system while immediately refusing to listen to any idea he has predetermined that he doesn't agree with. He's succinct, confrontational, and he obviously designed his post carefully to invoke anger in anyone with a functioning brain.

    In light of the above, I award this AC 10/10. This is the high caliber of trolling I've come to expect from the TD comment section.

     

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  15.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:33pm

    Re: Re:

    No, I think it an equally good system to YouTube being able to say they are "too big to check". Honestly, what Mike tends to propose is all one sided (gimmie, gimmie, gimmie), and does little to truly address the issues.

    We are (by Mike's own reckoning) at a time of great innovation. Yet he is shocked that we have many patents on new ideas. How truly odd! Does he expect all innovation to only be paint color or the addition of "30 END" on the end of basic programs?

    Innovation, Mike is for and against it at the same time!

     

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  16.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:38pm

    Someone needs to send their article on Obama's desk.

     

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  17.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:41pm

    Re: Re: Re:

    Please point out where the sense was in this comment.

    I do not see any, yet I see you feebly attempting to make some sort of point.

     

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  18.  
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    weneedhelp (profile), Mar 12th, 2012 @ 1:46pm

    Re: Re: Re:

    See but you FAIL in the fact that there is a system that is supposed to CHECK patents.

    "YouTube being able to say they are "too big to check"" I don't recall them ever saying that and in fact it is what their content ID system does.

    A FAIL at FAILING. Good work.

     

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  19.  
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    Anonymous Coward, Mar 12th, 2012 @ 1:49pm

    Re:

    First of all, "the patent system" is a limited set of rules, and Youtube is an infnitely expanding collection of videos.

    2nd, one is a set of rules and the other is a collection of videos

    (The distinction between 1 and 2 are subtle, but relevant)

    3rd, one is a system run by the government and the other is a collection of videos administered by a private corporation.

    That is one hell of a bad analogy, dude.

     

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  20.  
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    weneedhelp (profile), Mar 12th, 2012 @ 1:55pm

    Re:

    Well today we received an announcement about a new IP lier (to defend us). This is the 4th in 18 months. Judging by their offices and equipment they are 100,000+ a year job. Over a half a million spent each year to defend us against patent trolls.

    See they DO create jobs. /s

    Would be nice to have that money for other projects.

     

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  21.  
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    Mike42 (profile), Mar 12th, 2012 @ 1:56pm

    Re: Re: Re:

    Your argument fails, because Software patents didn't exist until some BS lawyers and judges colluded to make them exist.
    They also are not generally enforced, which is why we can get any innovation at all today.
    The entire concept of a "Software Patent" is flawed. Mathematics and algorithms are specifically excluded from patent law, and the idea that adding software to a computer creates a new machine makes about as much sense as putting a new record in your record player creates a new machine.
    This entire situation is absurd.

     

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  22.  
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    Bengie, Mar 12th, 2012 @ 2:04pm

    Re:

    Lets pencil in Mike for President. "Down with jobs!.. for lawyers" will be his motto.

     

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  23.  
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    Pitabred, Mar 12th, 2012 @ 2:05pm

    Re: Re: Re:

    I like how you imply that patents are innovation, except that they're not. Patents are tollbooths, and in the software space are VERY rarely used for anything except either rent seeking or protection against that. They don't impart any knowledge, or unveil any mysteries, as is the point of the patent system.

    Really... how do you think having every software programmer liable for patent infringement, without them even looking at the patents, is good for innovation?

     

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  24.  
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    MonkeyFracasJr (profile), Mar 12th, 2012 @ 2:09pm

    Re: "(gimmie, gimmie, gimmie)"

    How is someone (person or corporation) who goes out and purchases the rights to a patent, where they have no intent on producing goods or service with that patent, and only intends to collect licensing revenue, not also playing the "Gimmie, Gimmie, Gimmie!" card?

    One example that I will grant is when a patent is aquired with hope or intent for defense against other patent infringement claims.

    I think it is useful to have protection against someone excluding you from the opportunity to utilize your inventions or ideas (for a LIMITED period of time.) But if you hold patents with NO intention of using them except to skim profit from others who actually produce economic benefits through goods and services then I don't see that you deserve the protection.

    Maybe I just see the world differently but I consider "patent trolls" to be parasites on society that offer no benefit what so ever.

     

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  25.  
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    fiestachickens (profile), Mar 12th, 2012 @ 2:12pm

    Re: Re: Re:

    When you boil it down like that, I'd agree that Mike is for and against innovation. But let me unpack that for you:

    Innovation type 1: Something new, unprecedented, or a clever re-working of something that already exists.

    Innovation type 2: Something obvious, but worded in such a way that it gets jammed through an already clogged and faulty patent system.

    I'd contend that Mike is all about type 1, and not so much about type 2. So... yes. I agree with you. Mike is both for and against innovation.

     

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  26.  
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    Richard (profile), Mar 12th, 2012 @ 2:17pm

    Re:

    If it's acceptable for Youtube to be "too big to check", then the patent system can also be "too big to review".

    So - by your analogy - we should abolish both patents and copyrights!

     

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  27.  
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    Chris Rhodes (profile), Mar 12th, 2012 @ 2:20pm

    Re: Re: Re:

    The "issue" is that ideas are not property, and if you try to protect them like they are, you get into all kinds of ridiculous situations like we are now. When your premise is wrong, you can't make the conclusion that follows correct.

    You can cure the disease by abolishing intellectual property law now, or you can spend the rest of your life trying and failing to cure the symptoms (and ultimately end up having it abolished anyway when the economy collapses under it's own bloated weight).

    I'm fine with either method, honestly. I'm to the point where I think I should let my political opponents have everything they want, just so I can watch the system grind to a complete halt under their batshit insane policies.

    "You can't make and sell cupcakes in the shape of a star! That was my idea!"
    "I was going to write a story about a cyborg ninja who goes on a journey of self-discovery! Award me damages!"
    "My name is Anne! You can't use that name, it's mine!"

    It will be glorious to behold, and people like you will be sitting around with your thumb up your ass, wondering why there are no new jobs, no new products, and every product that already exists costs twice as much due to licensing fees and legal costs.

     

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  28.  
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    Anonymous Coward, Mar 12th, 2012 @ 2:29pm

    Re: The trolls have found this weakness, and exploited it

    Are you a programmer Steph? It seems that you are trying to come across as being an expert on the subject. If you are writing software that basically does the same thing as other software that was written for commercial purposes you can pretty much bet that it's covered by a patent. If you are writing software that is for a new purpose but is similar in process to some existing software it is likely infringing. If you are writing software for a new purpose and it in no way resembles any known process it most likely is not infringing.

    The problem is that so many "innovators" are simply copycats and then they cry foul when they KNOW they are copying existing and popular software.

     

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  29.  
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    BeachBumCowboy (profile), Mar 12th, 2012 @ 2:33pm

    Legal Definition of Property

    This demonstrates the problem with conveying traditional concepts of physical Property to Intellectual Property. From a legal standpoint, "Property" is the right of a person (or company or nation) to exclude others. "Its My Land" really means you can't trespass, you can't build a house, you can't drill, etc. unless I allow you to.

    In the physical world this makes sense. If you build a house on my land, then I can't build a house. If you mine the gold, then there is less gold for me to mine. It has also traditionally been very easy to recognize the limits of these exclusions, or rather the boundaries of the property; just look at a map. This concept easily transfers to other forms of physical property - "dude that's my car" not your car.

    But with "Intellectual Property" all of these concepts fail. Instead of limited and bounded resources that are scarce and well defined, we have infinite "ideas" - and yes all patents are really ideas, just ones that are supposed to be very, very specific and well documented.

    Let's say I patent a mechanical means of separating cotton fibers from their seeds. Can I exclude all other mechanical means from doing the same thing, or just means similar to my machine? How similar is too similar? Can I just exclude other sales of those machines and not the manufacture? Why stop at just sales? What if I add steam power to the machine? Do I have to patent that? What about electric power? The questions (i.e. the limits or bounds) are in fact limitless.

    So any expansion of intellectual property rights, actually is an expansion of exclusions placed upon others. Such expansion doesn't "create" more property as we would think of creating more land to farm. This expansion limits what others are allowed to do.

     

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  30.  
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    Anonymous Coward, Mar 12th, 2012 @ 2:38pm

    Re:

    Exactly! So now because the patent system is too big to review there's no way to enforce patents because one can't know if they are infringing!

     

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  31.  
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    Anonymous Coward, Mar 12th, 2012 @ 2:54pm

    Re: Re: The trolls have found this weakness, and exploited it

    "Are you a programmer Steph? It seems that you are trying to come across as being an expert on the subject."

    pot meet kettle

     

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  32.  
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    Anonymous Anonymous Coward, Mar 12th, 2012 @ 3:07pm

    Re:

    And just why isn't getting rid of patents and copyright an answer? The world got along for centuries with out them, and one might argue that there was a lot of creativity during that time. When the US first came into being they ignored patents and copyright from other countries. Yes they finally brought them into being, and look at the disaster that created. So other than currently protecting middlemen, gatekeepers and trolls such as yourself, just what is the need for these protections in this day and age?

    Also, why can't Mike fantasize? Not saying he fantasizes about a world without copyright and patents, he rather forcefully argues for them, but in a more controlled and sensible environment. If you are arguing against fantasizing at all, Disney has a big problem.

     

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  33.  
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    The Groove Tiger (profile), Mar 12th, 2012 @ 3:39pm

    Re: Re: The trolls have found this weakness, and exploited it

    So you're not a programmer AC? It seems that you are trying to come across as someone who doesn't know crap about programming. If you write software that does the same thing as other software you can pretty much bet that if it is a different piece of software it can't be covered by anything at all unless you spend a lot of money bribing total technology ignoramuses in government.

    Holy shit man, you just proved with your post that you have no business talking about programming or software. Good job joining the club of the ignorant. I'm sure the other idiots will lend you their cigars.

     

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  34.  
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    Greg (profile), Mar 12th, 2012 @ 3:41pm

    Re: Re: The trolls have found this weakness, and exploited it

    I AM a programmer (20 years and counting) and we try to find the simplest solution to every problem and quite often they are new and innovative (at least to us). Is it possible that techniques we have come up with have been done before and infringe? Yes, of course. Do we search for patents that we might be infringing on? No freaking way. A) see "willful infringement" B) most patents are such a hodgepodge of gobbledygook and legalese that they could be used to cover a much wider range of software processes than was actually built. (IF it was actually built.) C) do you have any idea how long it would take to search these things?

    We don't care if other companies use the same techniques as us. It's not our business model to sue someone who uses the same techniques. All we care about is serving our customers and building solid software. In fact, it would make no difference if they copied our entire codebase. Good luck with that as just having the same code doesn't mean you can run it, support it, or maintain/enhance it. For that, you need the people that built it. It's not monkey code that flips photos on your desktop. The patent system provides no incentive to us, nor most software companies when they focus on serving their customers and not suing their competitors.

    Having sat in on a couple of patent submissions and watching the patent lawyer make the language as ambiguous as possible so as to cover the widest range of interpretations, it's an absolute fools game, unless you're looking to sue someone or build up a war chest of patents to use in the event that you are sued...

     

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  35.  
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    Mike Masnick (profile), Mar 12th, 2012 @ 3:54pm

    Re:

    Too bad Mike. If it's acceptable for Youtube to be "too big to check", then the patent system can also be "too big to review".

    If you can come up with a better system, then perhaps we can solve both problems - and no, getting rid of patents and copyright isn't an answer, except in your fantasies.


    Yes, both are too big to check, and thus it's silly to have a system that requires checking either.

    Thanks. I think this may be the first time we've ever agreed on anything, even if you seem to think you disagree with me. Congrats on being so wrong you're finally right.

     

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  36.  
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    Ed C., Mar 12th, 2012 @ 4:24pm

    Re: Re: The trolls have found this weakness, and exploited it

    If you are writing software for a new purpose and it in no way resembles any known process it most likely is not infringing.

    Basically, even those intrepid few who manage to not only create an entirely new use for software, but does so by using processes and platforms that are not yet known to exist, are merely "most likely" non-infringing. Who, exactly, would these uber-l33t programers be? They would have to be some group that is completely disconnected from any form of modern human society, least their minds become infected with anyone else's IP. Cave-dwellers or some remote tribe of the Serengeti might have the prerequisite disconnectedness, but are unlikely to have electricity, not alone a C## cross not-yet-invented-platorm compiler. And I believe the abacus is already entangled in a patent ticket. Well, that leaves space aliens. Yet even they, by your standard, don't have a 100% probability of being non-infringing!

    So please, explain how your vision of software patents is remotely functional, or even sane.

    And yes, I am a Software Engineer.

     

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  37.  
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    Ed C., Mar 12th, 2012 @ 4:50pm

    Re: Legal Definition of Property

    Exactly! So called "intellectual property" rights really exist as exceptions to the real property rights of others. We merely accepted a few exceptions to make a balance for the needs of creators. But then they continued to take more and more rights from everyone else. What they fail to understand is that granting and enforcing these rights comes at a cost to themselves and to the public, and--as members of the public--have to bare that ever increasing cost too.

     

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  38.  
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    abc gum, Mar 12th, 2012 @ 4:56pm

    Re: Re:

    Not only that, but the whole concept of allowing patents relies upon a thorough review of the patent prior to approval - thus ensuring a valuable contribution to the useful arts and sciences. In the absence of same, confusion and corruption reigns. The same can not be said about a youtube video.

     

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  39.  
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    B Pickel (profile), Mar 12th, 2012 @ 4:56pm

    Re:

    I'm sure the RIAA & the MPAA could afford that (if they weren't losing so much money from piracy)

     

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  40.  
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    abc gum, Mar 12th, 2012 @ 5:07pm

    When everything infringes upon everything else, what does that tell us about said system of granting privilege?

    well - I'll tell ya.
    said system is:
    1) completely devoid of legitimate benefit
    2) corrupt
    3) wasting valuable resources
    4) the butt of many jokes
    5) .... profit ???

     

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  41.  
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    Anonymous Coward, Mar 12th, 2012 @ 5:14pm

    Impossible?

    More to the point: If there is a stream of X dollars flowing within the economy that's adequate to support 40,000 patent attorneys, would that same X dollars be adequate to support the schooling and lifestyles of the additional 1,960,000 full-time patent attorneys required to vet all companies' software for infringement? Would said patent attorneys even bother working for software-producing companies at salaries of X/2,000,000, or would they be inclined to go into the more-lucrative/less labor-intensive speculative billing business, preying upon those very same software companies and some bakeries and nursery schools and pet sitters? If there is such a development, more attorneys would have to be spawned to deal with the threat, in much the same fashion as observed when an organism raises an immune response to invasion by disease. Eventually we reach an omega point, and only flesh-eating zombie patent attorneys are left roaming the earth, mindlessly searching in vain for that last little fragment of as-yet-unlitigated IP. This outcome has been foretold, and has been proven to be Mathematically Possible. (See the parable: Omega Man/I am Legend.)

     

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    Andrew F (profile), Mar 12th, 2012 @ 5:22pm

    Independent Invention Defense

    This is actually a great reason for allowing an independent invention defense. In theory, patents provide an incentive to disclose your invention. And once something has been disclosed, why reinvent the wheel when you can just build off someone else's disclosure (in exchange for a licensing fee of course)?

    But in practice, patent disclosures are a joke. And with software, practically no one is actually looking up the disclosures. It's faster to figure out a patented piece of code on your own than it is to make sense out of the intentionally ambiguous software patents out there.

    An independent invention defense would solve this. It provides an incentive for inventors to make their disclosures actually useful, and protects software developers when the disclosures are useless.

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Cowardly Anonymous, Mar 12th, 2012 @ 5:28pm

    Re: Re: The trolls have found this weakness, and exploited it

    "If you are writing software that basically does the same thing as other software that was written for commercial purposes you can pretty much bet that it's covered by a patent."

    Every single Operating System must:

    A) be capable of running on architectures from a major distributor.

    B) provide programmers with something at least incredibly similar to the interface that they are used to working with.

    Should every operating system be exclusive to certain computers? Should every program need to be completely redesigned in order to run on a different OS?

    How should we handle code embedded into web pages that could potentially be read by computers using different operating systems? What about implementing web standards?

    This problem is not limited to operating systems. The same themes run throughout the industry.

    Only at the highest levels of design could a program ever mesh with the patent system, which is not at all what we are seeing with software patents. But even there, there is no need for patents. Our industry moves at such a pace as to demand constant innovation. No extra motivation is required.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Anonymous Coward, Mar 12th, 2012 @ 5:30pm

    Re:

    Know what the difference is? You're unlikely to get hauled into court if something vaugely similar is on YouTube and you fail to find it. It is my opinion that people should generally not get sued for something they can't reasonably know.

    Let's say you're a TV executive who wants to know if a particular show is illegally on YouTube. Yes, YouTube is too big for you to watch every show to see if it infringes on your work... but, luckily, you probably don't have to. You can search YouTube with your show's name as a keyword and get 99% of it. Maybe you can try searching for a few actor's names and such as well. Yes, it's possible that you won't find the video where someone has a TV on in the background, but hopefully you're sane enough to know that such a thing isn't hurting you.

    Now, let's say you're a software executive. Exactly how are you going to figure out which patents your (as yet unwritten) software may violate? You can TRY a keyword search... but consider, for example, this excerpt from a patent labeled "System and method to develop health-care information systems" (Patent 8,000,977.)

    "It will be apparent to the skilled artisan that the system of the invention described above in several embodiments is much more broadly applicable than to the narrow field of health care services. The examples of health care services are an important application, but serve as examples only. The characteristics of the invention can be applied in any area of human endeavor where distributed tasks must be planned and scheduled, and existing data must be sought and applied. Such areas include information management of all sorts, manufacturing systems, design systems for both hardware and software, and much more."

    See where it says it applies to other fields? But how is anyone outside the health care software field going to find this patent, aside from going through every single software patent out there?

    And ALSO keep in mind that the software is almost guaranteed to change during the development process. Technology becomes obsolete, you get more data on what users want, etc. So maybe the developer changes some little thing, like having something work in one click instead of two, and all of a sudden you run into an insane one-click patent that you wouldn't even THINK to search for even if you knew your developer changed that detail.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Cowardly Anonymous, Mar 12th, 2012 @ 5:38pm

    Re: Independent Invention Defense

    The "problem" that will be raised as an objection to anyone proposing such a system would be that the defense is unprovable (for/against) and thus, if allowed at all, would subsume the entire patent process. Of course, unique or original invention is equally unprovable...

     

    reply to this | link to this | view in thread ]

  46.  
    icon
    crade (profile), Mar 12th, 2012 @ 5:39pm

    Yeah, this should be obvious to everyone who has ever written software. Not sure if other types of patents are used similarly or not, but software patents are definately just a scam.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    MikeVx (profile), Mar 12th, 2012 @ 7:42pm

    Re: A working TARDIS

    Well, making a TARDIS requires considerable amounts of multidimensional mathematics, whereas ??AA logic involves non-rational hyperbolics.

    Can you imagine how ugly it would get just trying to patent the mechanisms of a TARDIS? Can you file patent lawsuits across the entirety of time? Then, oh, the software. How many patents would be infringed on software that has to produce results before the program is started, let alone given data? Is there a patent on progression testing software that runs backwards? How do you even describe a program that may have to end, then start, and come to the middle where it's done with its job? East Texas might collapse into a black hole trying to sort that one out.

     

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  48.  
    icon
    Endtimer (profile), Mar 12th, 2012 @ 8:26pm

    Re: Re:

    Sorry, but I call BS. How can you think this is your first time agreeing with him when he's an AC?

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    Greevar (profile), Mar 12th, 2012 @ 11:55pm

    Re: Re: A working TARDIS

    Don't you mean "irrational hyper-bullocks"?

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    Mike Masnick (profile), Mar 13th, 2012 @ 4:17am

    Re: Re: Re:

    Sorry, but I call BS. How can you think this is your first time agreeing with him when he's an AC?

    Some ACs are pretty obvious to spot by their use of language. This one in particular.

     

    reply to this | link to this | view in thread ]

  51.  
    icon
    Not an Electronic Rodent (profile), Mar 13th, 2012 @ 4:57am

    Re:

    In fact, with RIAA/MPAA mathematics, I'm rather surprised we don't have a functional TARDIS yet.
    I think it's been pointed out before but **AA mathematics is generally more similar to Bistromathics

     

    reply to this | link to this | view in thread ]

  52.  
    icon
    Ninja (profile), Mar 13th, 2012 @ 5:02am

    Re: Re:

    I was drinking coffee when I read your reply. I barely managed to keep my desk clean.

    Could it be he reached a so abyssal level of fail that he actually started doing it right? Could it be we'll be seeing valuable comments from him in the near future?

    I'm waiting with anxiety for his next comments!

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    Bernd Paysan, Mar 13th, 2012 @ 5:43am

    The other solution

    Well, what do you thing is the solution? The system is broken beyond repair. Patents have never been created to help inventions, they are a mercantilistic approach at economy. Mercantilism is broken, and has been replaced by free marked economy, with a few exceptions, and Patents+Copyright are the exceptions.

    The patent system will not go away, because there is too much misguided economic interest in it. But what will go away is the western world as leader of the civilization. It will collapse in its patent wars, it will stop inventing, and become a bunch of third world countries.

     

    reply to this | link to this | view in thread ]

  54.  
    icon
    Seegras (profile), Mar 13th, 2012 @ 5:45am

    Re:

    Please explain your insistence on why "getting rid of patents" is not a solution?

    Please underlie your assumptions with hard data and statistics why a patent system is needed.

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, Mar 13th, 2012 @ 6:59am

    Re: Re: Re: The trolls have found this weakness, and exploited it

    Actually I AM A SOFTWARE ENGINEER. Therefor I think that would make me more of an expert on the matter than an anti-IP Masnick groupie.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Anonymous Coward, Mar 13th, 2012 @ 7:22am

    Re: Re: Re: The trolls have found this weakness, and exploited it

    Thats complete bullshit. I am a software engineer and have been for over 12 years. I have written in RPG, Cobol, VB, C++, Java, and ecmascript. I have written software for PCs, for AS/400s, and portable web applications that can run on numerous platforms. Before moving to software development I worked as a business analyist speccing code modifications. All told I have over 20 years experience with working with code. There are programming environments in which you purposely give multiple people the same project and prevent them from consulting with each other for the purpose of ensuring independent development so that you can attempt to field out different logic. When the programmers are done you compare the solutions to the problem and select the most efficient and secure solution. You know why that system exists? Because there is more than one way to skin a cat, and that was my point.

    Furthermore, why would you be purposely writing software that does the same thing as other software. What is innovative about that? This site is constantly using that word, and yet the "innovation" is obviously missing.

    Even something as simple as an incremented loop can be accomplished many many different ways.

    FOR Number = 1 to 100
    .
    .
    NEXT Number

    DOW Number <= 100
    .
    .
    ENDDO

    IF Number++ <= 100
    .
    .
    ENDIF

     

    reply to this | link to this | view in thread ]

  57.  
    icon
    Steve R. (profile), Mar 13th, 2012 @ 8:58am

    It's an Agrandizing Land-Grab

    The issue of property rights is not simply having a "clear property" line, but the fact that those who believe that they have a property right are invading the property of others.

    To explain. You have a defined piece of property that overlooks the ocean. The view of the ocean contributes to the value of that property. The neighbor allows trees to grow, which blocks your view of the ocean thereby depressing the value of your property. You then assert that you have a right to trespass on the neighbors property to cut down the trees on his property. The fact that you are diminishing his property values and violating his property rights is considered irrelevant.

    All that these lawsuits are is a claim that you can "steal" someone else's property and to prohibit competition.

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Anonymous Coward, Mar 13th, 2012 @ 10:15am

    Re: Legal Definition of Property

    I just thought of a great analogy.

    Real property: a house in the real world. There is only one of that specific house. Only one people can use it fully at a time.

    Imaginary property: a house in a single-player computer game. Every one playing the game has a fully independent copy of that house. An infinite number of people can use it fully at a time.

     

    reply to this | link to this | view in thread ]

  59.  
    identicon
    Yoshord, Mar 13th, 2012 @ 10:42am

    Re:

    Should I have to check every video on Youtube to make sure none of them have a cat with a similar hair color and none of them have a cat with a similar ear shape and that none of them have a cat doing a similar action before uploading a video of my own cat doing something cute?

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    Adelle, Mar 13th, 2012 @ 10:47am

    How small can fight the big ones?

    The issue of copyright on the software should be restricted to the use of sequences of complete programs or algorithms doing the same function for similar programs.

    If I use a string without knowing what has already been patented to use at different program, so I do not break any patent! After all, if the programs have different purposes, compete in different market niches. Am I wrong?

     

    reply to this | link to this | view in thread ]

  61.  
    identicon
    J N Gross, Mar 13th, 2012 @ 10:49am

    Its also "mathematically impossible" to avoid all natural catastrophes and business disputes - that's why there's a thing called INSURANCE. But I have long argued that there should be a national "registry" where SW vendors should POST product information (literature, brochures, etc.) that could be vetted by patent owners. If no claim was made against a product within 2 years of such registration, then the patent owner would forever forfeit damages or injunction against said product. That would eliminate uncertainty for the product vendor and provide them design peace for the future.

     

    reply to this | link to this | view in thread ]

  62.  
    icon
    MikeVx (profile), Mar 13th, 2012 @ 4:52pm

    Re: Re: Re: A working TARDIS

    Both, actually.

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    vic Kley, Mar 13th, 2012 @ 8:28pm

    Mathematical Impossibility

    Masnick it is mathematically impossible for you to electronically print this Vic Kley copyright 2012 commentary without infringing my copyrights.

    How dare you!

    Furthermore I have a patent on an algorithm process to file a tort here in Alameda County against any scoflaw from the south bay who fails to pay the license fees to use copyrights.

    I just put your work address into the process and you can expect to be served any day now.

    I've already given my friend Leroy your picture and asked him to make sure to give you the full welcome when you get in line at the Courthouse on 14th street in Oakland. I paid him extra for the FULL cavity search- I know you of all people will enjoy getting your head out of there if only for a little while.

    Naturally the patent and copyright suit will be in federal Court in San Francisco. Fernanado does the searches there and he says he LOVES your style.

     

    reply to this | link to this | view in thread ]

  64.  
    icon
    The Groove Tiger (profile), Mar 14th, 2012 @ 12:39am

    Re: Re: Re: Re: The trolls have found this weakness, and exploited it

    I see, so as a "software engineer" you think people have to think arbitrarily different ways to achieve the same thing, even if they had no way to view how others are doing it, because if it's been done one it must be patented and thus stealing.

    Wow, you just infringed on two existing ways to make a loop! Bad programmer, bad! You have to come up with your own completely unique way!

     

    reply to this | link to this | view in thread ]

  65.  
    identicon
    staff, Mar 14th, 2012 @ 7:38am

    another biased article

    Masnick, Bessen, Lee, etc. all have one thing in common -they are lobbyists masquerading as journalists or educators trying to influence US law to make it easier for the huge corporations employing them to steal their small competitors inventions.

    Masnick and his monkeys have an unreported conflict of interest-
    https://www.insightcommunity.com/cases.php?n=10&pg=1

    They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world’s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are patent system saboteurs receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don’t have any.

     

    reply to this | link to this | view in thread ]

  66.  
    identicon
    Vic Kley, Mar 14th, 2012 @ 10:15am

    Re: J N Gross

    J.N> I think its great that you are trying to come up with a way to resolve the patent/software issues unfortunately the "registry" you propose with "literature, and brochures" would not do it.

    Let me give you an real example. I happen to hold a patent on a new way to do a certain kind of Inverse FFT Filter. This is used in music, and visualization (particularly of microscopic, and telescopic data sets). This method is a 1000 times faster then the previous method in software. Both methods use FFTs, both methods permit filtering of the FFTs and visualization (or tone generation) of the inverse. These tend to be just feature components in a range of features in a visualization suite. YOU CANNOT DISTINGUISH THEM BY BROCHURE, OR LITERATURE. You must inspect the object code at work and the source code for this functional area.

    Of course no one will publicly provide their source and functional object they would soon be out of business. Let me state though that even if they did but called it something obscure enough the patent owner still might not ken to its existence, thus still would not have been put on notice, and had an obligation to notify the potential licensee.

     

    reply to this | link to this | view in thread ]

  67.  
    identicon
    basit147, Mar 15th, 2012 @ 1:14am

    patent system is just leg pulling

    the us patent system makes me laugh
    yahoo a company
    that abandoned its own search
    closes geocities and
    purchasing Broadcast.com for 5.7$ billion and making nothing out of it talk about patents they don't even use
    their problem is that they didn’t has a mentor like like Eric Schmidt
    and face-book suing every company that starts with face of ends with book
    is crap MZ should also patent the sue mashable as both have a blue color scheme
    patents should not be software based hardware makes sense

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Renee Marie Jones, Apr 10th, 2012 @ 7:39pm

    Re: getting rid of patents

    Getting rid of patents and copyrights is perfectly reasonable and would harm no honest person.

    I suppose you are one of the people that think irrigation is impossible because patents did not exist back then?

     

    reply to this | link to this | view in thread ]

  69.  
    identicon
    Anonymous Coward, Jul 10th, 2012 @ 3:38pm

    Re: Re: Re: Re: The trolls have found this weakness, and exploited it

    All of which infringe on my "System and Method of Creating an Incremented Loop to run 100 Times" patent. :p

     

    reply to this | link to this | view in thread ]

  70.  
    identicon
    Liberty721, Dec 26th, 2012 @ 5:10pm

    Re: Re: getting rid of patents

    You just wrote a book. Your publisher pays you some money. I copy it, re-title it, and MY publisher pays me a lot more, and your book dies on the market. You have just been "not harmed."

     

    reply to this | link to this | view in thread ]

  71.  
    identicon
    Bleakwise, Aug 24th, 2013 @ 11:54pm

    Re: Re:

    "Down with jobs for software engieers" would be yours.

    Do you even know the first thing about software development? No? Then maybe you shouldn't be commenting on this subject.

     

    reply to this | link to this | view in thread ]

  72.  
    identicon
    Bleakwise, Aug 25th, 2013 @ 12:01am

    No two softwares are the same.

    It's true. For two software that doe the same thing the chance of them being different code is literally nearly 100%.

    What we have today, is companies patenting things like "mouse traps". Not only that, but they're literally patenting mathematics, numbers, equations (the base of all computer software).

    The exact problem is that doesn't matter if you apply your code differently and build a better mouse trap; someone already has "mousetrap" pattented.

    Imagine if Ford was able to patent "cars" or Terminex was able to patent "poison". Imagine what that would do to innovation.

    Did you even understand the article? It says that if you bring software to the market that you can/will be sued into poverty.

    I just read a story the other day that one troll was suing people for "validating authenticity of purchases". Really, they've literally have a patent on using a computer to enforce your patent.

    LOL

     

    reply to this | link to this | view in thread ]

  73.  
    identicon
    James Harbour, Jan 24th, 2014 @ 9:30am

    I have no idea...

    How on earth do I figure out if some algorithm I write infringes on a patent?

     

    reply to this | link to this | view in thread ]


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