* The Business of Software

A former community discussing the business of software, from the smallest shareware operation to Microsoft. A part of Joel on Software.

We're closed, folks!

Links:

» Business of Software FAQ
» The Business of Software Conference (held every fall, usually in Boston)
» Forum guidelines (Please read before posting!)

Moderators:

Andy Brice
Successful Software

Doug Nebeker ("Doug")

Jonathan Matthews
Creator of DeepTrawl, CloudTrawl, and LeapDoc

Nicholas Hebb
BreezeTree Software

Bob Walsh
host, Startup Success Podcast author of The Web Startup Success Guide and Micro-ISV: From Vision To Reality

Patrick McKenzie
Bingo Card Creator

Lawyers and software developers

I get the feeling Scott wrote Joel's article "The Patent Protection Racket."  Joel/Scott have a valid point, litigation involving intellectual property seems to be replacing soft tissue accident claims as the leading source of income for the bottom 50% of licensed lawyers.  The question is whether or not a couple of ad hoc, voluntary organizations like the Application Developers Alliance and Electronic Frontier Foundation will actually make a difference, or if the only way to fight patent and trademark trolls is to spend enough money on lawyers to defend against these attacks, that the ROI for the trolls becomes negative.  There are a few victims on this board of IP extortion, so it appears to be a real issue.  Do grassroot movements and special interest groups actually accomplish anything?
Howard Ness Send private email
Friday, April 05, 2013
 
 
Ha ha, really? No my voice is different than his. We've never met actually.
Scott Send private email
Saturday, April 06, 2013
 
 
What we both share though is experience in dealing with IP issues.

Tip: moving outside the US makes it so much harder to sue no one bothers.

Since software can be sold via download, there are huge advantages to being outside of unfriendly areas, and no disadvantages.
Scott Send private email
Saturday, April 06, 2013
 
 
Patents in hard sciences such as chemistry or electronics makes a lot of sense. There are hard edges around the patent and competitors can "invent around" it. A patent that can't be invented around at all, is not a valid patent. Music, literature, computer programs and products that are primarily composed of thought, don't lend themselves to patents. Efforts to patent these things turn into criminal obstruction. There are applications pending that patent novel plots!

Copyrights and code protection is the correct remedy to protect the creator in areas such as writing or programming. Several factors have contributed to this mess.

Code protection became a nasty word sometime in the 90's. Unlike what most people think it wasn't the open source or FSF that made it so. It was mostly broad, draconian non-competes that forced top level programmers in big corporations and start ups, to insist  on open licenses to circumvent future shackles. Everyone was supposed to have their code wide open. Ironically around the same time, the same companies that praised the value of opening source code, started the biggest patent hording campaigns in the history of the world.

Lawyers follow the money. It is also a good source of revenue for the government to process these applications. Patent applications are costly.

Software and business processes were not patentable. A few key court cases turned everything upside down and created this hell. As Scott points out this is really hampering the American programmer.
The rest of the world can keep innovating without fear.
cn Send private email
Saturday, April 06, 2013
 
 
Two people have patented playing with a cat with a laser pointer.  Don't believe it?  Look -> http://www.google.com/patents/about?id=OfwkAAAAEBAJ
Harry Phace Send private email
Saturday, April 06, 2013
 
 
cn Send private email
Sunday, April 07, 2013
 
 
cn, can't view that in Firefox as it needs an Adobe Reader plugin installed.  I wouldn't touch Adobe Reader with a 10-foot pole.  So, got an alternate link for it, or a patent number so I can find it in Google?
Harry Phace Send private email
Sunday, April 07, 2013
 
 
Just noticed the patent number in your URL, so here's an alt link that doesn't need Adobe Reader: http://www.colitz.com/site/1111/1111.html
Harry Phace Send private email
Sunday, April 07, 2013
 
 
"there are huge advantages to being outside of unfriendly areas, and no disadvantages."

other than paying taxes in both jurisdictions? it's choose your evil I guess.
Macius Send private email
Sunday, April 07, 2013
 
 
"Copyrights and code protection is the correct remedy to protect the creator in areas such as writing or programming. "

Strongly disagree. A lot of novel concepts can be described and how they are programmed is irrelevant. I have thought of something very unique that no one is doing and it looks like no one is even going to do it. Source code is irrelevant because everyone on this board could implement the idea themselves.

I think we need a separate type of a patent, something between utility and design.
Macius Send private email
Sunday, April 07, 2013
 
 
"The rest of the world can keep innovating without fear."

Are they really? or were you trying to say "the rest of the world can use American inventions with impunity"...

because one thing I know from being alive long enough is that as soon as anyone anywhere in the world invents something worthwhile they look to protect their invention, Americans or not. As soon as they realize they can't - THAT truly hampers invention in that particular country. So I ask again, which is it that you really think is going on?
Macius Send private email
Sunday, April 07, 2013
 
 
I am all for protecting investment. But protecting your investment is not the same as breaking the market for everyone else. Software and business process patents are relatively recent. Business processes are not new even if software is. As I said before patenting software and business processes does not make sense. Think about this.  I can't patent a new algorithm since it is math. But i can patent running that algorithm on a computer program. I can't implement the real invention, but I can patent the trivial act of running it on computer.

That is not the case with say a new drug. Creating a new drug is entirely a different story than coding  an algorithm on a computer. You can even use a language like Python which is almost like writing executable pseudocode. This means that I can express the algorithm in pseudocode and legally publish it to the world without breaking any laws. But if ran the same thing it on a computer just for myself, technically, I am violating some patent. You just can't do that with a new drug or fracking or a new way of bonding cement.

It is the nature  of the physical inventions that make them patentable. The criteria of running it on a computer is arbitrary since the device(computer) is not really a part of the invention. In the physical inventions the device IS the invention.

Copy rights were traditionally the way to protect your investment in software, writing, business processes etc. I am all for protecting investment without breaking the market.
cn Send private email
Sunday, April 07, 2013
 
 
You know something is wrong with the patent system when a child's bubble gun has 40 patents:
http://successfulsoftware.net/2007/10/09/patently-absurd/

See also the patents for swinging on a swing and throwing a stick for a dog (really):
http://www.google.com/patents?id=T2QKAAAAEBAJ
http://www.google.com/patents?id=hhYJAAAAEBAJ

I blame the US patent office for allowing so many trivial patents through. But I have no idea how you undo the damage they have wrought.
Andy Brice Send private email
Monday, April 08, 2013
 
 
To avoid being sued for a "patent infringement", is the answer then to release your software 100% anonymously?  Take a look at www.imgburn.com and the app itself.  The only identification is "Lightning UK!" and the Whois data is hidden, too.  The author of this app has remained anonymous for many years now.  Maybe someone knows him, but I as a casual observer and sometime-user of his app don't know him.  Perhaps he'd be safe from any lawsuits as a result?  (Not saying he's done anything illegal, mind you).
Harry Phace Send private email
Monday, April 08, 2013
 
 
The judge has a lot to do with the outcome. Oracle vs Google Java api
law suit was about copyrights. But my point still applies. Oracle claimed that API is copyrightable. API has traditionally not been copyrightable. Implementation is , but not the method name and signature combination. Otherwise we would all have to find a different ways to say "Print(file)". Unfortunately for Oracle, Judge is a programmer. He was a programmer before he was a judge. Actually he is an active programmer and he said that he had been up programming and thinking about the case the night before the verdict.
As a programmer he understood the issues. Most other judges are not familiar and don't understand our occupation.
cn Send private email
Monday, April 08, 2013
 
 
The most concise summary that I've seen of the problems with US patent law is this article written by Judge Richard Posner:

http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/

(tl;dr: skip to the penultimate paragraph.)

In addition to being the judge that dismissed Apple V. Motorola, he is also a member of the 7th Circuit Court of Appeals,.
Nicholas Hebb Send private email
Monday, April 08, 2013
 
 
The easiest way to settle the nurturing innovation by protecting it with patents argument is to look at file compression.  Patent law did nothing to bring LZW and MPEG algorithms to the world, but it sure made a mess after the fact.  The old proverb of how a town too small to support a single lawyer can always support two competing lawyers seems to ring true.

I'm not sure patents serve a useful purpose anymore, even if lawyers aren't milking them.  Manufacturers compete on the commercial application of new technologies, but they aren't very good at developing those technologies without the assistance of multipartite research.  Why should the successful patent applicant get an exclusive lease on the economic returns from research supported by multiple parties, including governmental bodies and competitors?  Even Thomas Edison collaborated on some projects and used the work of others as a starting point for his own inventions.  As far as I can tell, he filed his last patent in 1928.  I suspect the world has changed a bit in the last 84 years.

Solving the lawyerly leeching problem shouldn't be that difficult either.  Make patent trolling uneconomical.  As long as it costs more to extort money through patent protection than it does to protect yourself from it, the incentive will disappear.  A few defendants with deep pockets should be able to turn the tide, and once their successes get some publicity, the trolls will go back under their rocks.  I don't think an ad hoc public interest group will make any difference though, and all it will do is give work to more lawyers.
Howard Ness Send private email
Monday, April 08, 2013
 
 
Google, Apple and Microsoft could earn a lot of respect from developers by really going after the patent trolls.
Andy Brice Send private email
Tuesday, April 09, 2013
 
 
+1 to Cn and Andy,

from my recent experience, It has cost me almost 2000AUD only to get initial advice. Fortunately, The AU IP Attorney was very good and friendly to me , but still the money i spent was only the beginning and i just needed to follow his advice to do such and such.

As programmer, i am not comfortable at all when someone from nowhere  told me that my software could infringe their patent. It was very suck. Maybe lucky me i am not The US resident so my attorney said  it will cost them dearly, in the case they want to sue me in Australia. 
 
I believe Patent in Computer programming/ algorithm should just be abolished or, at most,  make the validity in short period, says, within 2-3 years.

Is there any way to abolish software/algorithm patent?
Fherry Send private email
Tuesday, April 09, 2013
 
 
http://www.theregister.co.uk/2012/12/09/apple_google_microsoft_buy_kodak_patents/
Andy, the big 3 have ludicrously large cash reserves and no place to invest them.  So they collaborate once or twice to reduce the cost of acquiring patents, but put the best lawyers money can buy on it, and they will end up back in the game of patent litigation for fun and profit in short order. 

Without litigation, most patents aren't worth much.  So the owners of patents will continue to spend money to sustain patent litigation.    As long as the big 3 hold thousands of patents with a market valuation of billions, they don't have any more incentive to end patent litigation than the professional patent trolls do.

The only way to end this madness is to burst the patent bubble and make it obvious that patent litigation has a negative ROI.  3 or 4 high profile cases where the defendant is able to avoid paying a large judgement even though they are badly outspent by the party defending their patent should be sufficient.  Once a pattern is established, other pending litigation will collapse like a house of cards.
Howard Ness Send private email
Tuesday, April 09, 2013
 
 
It seems that the big companies are building up huge patent portfolios mainly as a form of defense. If someone tries to sue them they can unleash their IP lawyers and patent portfolios on them. It the legal equivalent of a nuclear deterrent - it costs a fortune, but you hope you never have to use it because everyone loses once an all out war starts.
Andy Brice Send private email
Tuesday, April 09, 2013
 
 
@Howard
> The only way to end this madness is to burst the patent bubble and make it obvious that patent litigation has a negative ROI.  3 or 4 high profile cases where the defendant is able to avoid paying a large judgement even though they are badly outspent by the party defending their patent should be sufficient.  Once a pattern is established, other pending litigation will collapse like a house of cards.

I don't see that happening in that way.  There have already been a at least one high profile cases in which the ROI was incomprehensibly large.  $290 million for i4i against Microsoft.  Current entities are getting money right and left from big companies licensing (settling) instead of going to court--it's more cost effective for them.  And even if it does happen the way you say, there is nothing to stop them turning their attention to the smaller company world--indeed, they already have!

@Andy
> It seems that the big companies are building up huge patent portfolios mainly as a form of defense. If someone tries to sue them they can unleash their IP lawyers and patent portfolios on them. It the legal equivalent of a nuclear deterrent - it costs a fortune, but you hope you never have to use it because everyone loses once an all out war starts.

That's true, but not only is it not relevant to small devs/mISVs, it is not even relevant to the issue of those that hold patents but **have no way to be counter sued** (because they don't sell any actual products!).  That is the whole problem here:  in the words of Mr. Miyagi from The Karate Kid movie, ""If do right, no can defense."

It's a truly horrible problem.  What will fix it is the right legislation.
Racky Send private email
Tuesday, April 09, 2013
 
 
It is not just software. Games Workshop issue a DMCA take down notice to Amazon to remove a novel by a small time science fiction author. The offender had the words 'space marine' in the title. Games Workshop 'considers' their patent to include all uses of space marine and no one else can use it anywhere. Even though the patent does not explicitly say that.

Space Marine has been used in science fiction for decades. Long before Games Workshop was even created. Amazon won't fight the DMCA take down notice (its just a letter from a lawyer) since that would cost them money and why would they care? The writer does not have the money to fight this so she loses by default.

I can't remember the authors name. It was mentioned on whatever.scalzi.com a month or two ago. You can probably find it with a google search.

To be fair, large software companies seem to constantly sue each other for patent infringement. They are basically trolling each other (see Oracle suing google and Apple sueing everyone), then they cry when they get trolled. They are fairly full of crap.

Patent laws need to be changed. Apparently congress doesn't care. A few months ago Mark Cuban wrote a very good blog entry about patent trolls and about how its costing jobs. It is far more detailed than Joels blog entry. Cuban actually has a pretty interesting blog.
Contractor Send private email
Wednesday, April 10, 2013
 
 
+1 to "It is not just software. "

The whole patent system is out of control. And just think that we had patent "reform" last year. Why is that we can no longer really solve anything.
cn Send private email
Wednesday, April 10, 2013
 
 
> Patent laws need to be changed. Apparently congress doesn't care.

There was just a hearing on this on March 14th, 2013.  JC Penney, CISCO, SAS, Johnson & Johnson, and Adobe all sent representatives to speak to this issue, and they were all recommending change, as they are getting whaled on by these entities.  I read their written statements (linked through below) and found it quite upsetting, and that's for billion dollar companies--imagine how tragic it is for small companies.

This is on Congress's radar in some fashion, and Deep Pockets have their ear.  Let's hope for some sanity!

Link:
http://www.groklaw.net/index.php?page=2
(Search for he House Hearing on Abusive Patent Litigation)
Racky Send private email
Wednesday, April 10, 2013
 
 

This topic is archived. No further replies will be accepted.

Other recent topics Other recent topics
 
Powered by FogBugz