Dud's blog
04 04 2010

Sun, 04 Apr 2010

Software Patents: Threat or Menace?

Excerpt from an email exchange with a friend on patents:

> patent, trademark, and copyright protection are in the Constitution. The
> Founders’ reasoning behind this is that, unless the “creator” can earn a
> living from his creation, he can’t spend the time doing it.

Yes, and it’s a two-way street. In return for a limited time monopoly
right, the inventor must disclose the invention. This works very well
for hardware, and works terribly for “software” and “business methods”,
because, mostly, the things patented that way are “obvious to one skilled
in the art”, but which reason the patent office never cites for rejection.

This means it becomes impossible to write software that doesn’t “infringe”.
There are thousands of software patents, many on the most obvious things,
so now any jerk can buy up a bunch of those patents and then sue big
companies, and basically play “stick-em-up”. These patent trolls don’t
MAKE anything, don’t USE the patents, except as a method of extortion.
And the bargain, “disclose the invention in return for a monopoly” is
meaningless, because the disclosure is worthless, as most of the
patented “secrets” are bloody obvious.
> You don’t have a patent until you apply for it. I’m not sure that protection
> is from application-day, or from the day it is granted. This is the same
> principle behind copyright for works of “intellectual property,” although
> these are protected from the date of mailing of the application.

They changed the rule, now it’s from approval. It used to be from
application, which led to “submarine” patents, those that had been
in the approval process for years and years, but were considered valid,
which allowed patent trolls to have much longer than the 20 year run.

For more on this, read http://www.techdirt.org

Bill Dudley
April 2010

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