An Argument Against Software Patents

clndnng writes "Roughly 90% of web content consists of discussions of software patents, so it's a little surprising that Ben Klemens has written what may be the first dead-trees book analyzing their validity. It has a lot of ground to cover: you could approach the topic from the perspective of the geeks, the lawyers, the economists, or the businessmen. Klemens is equal-opportunity, addressing every perspective." Read the rest of the review.

Math You Can't Use: Patents, Copyright and Software
author	Ben Klemens
pages
publisher	Brookings Instituion Press
rating	9/10
reviewer
ISBN	0-8157-4942-2
summary	Explains why patents don't make sense for software

The first question you are probably asking yourself is whether this book says anything that you haven't already read on Slashdot's pages. Barring any omniscient readers, the answer is probably yes, because the book covers so many different angles. You might already know what he will say about the Church-Turing Thesis, but you probably don't know the law of scènes à faire or contributory infringement. Slashdot chestnuts like Amazon.com's one-click patent and the SCO v IBM case make only passing appearances, leaving room for more interesting examples about Garbage Pail Kids and Banana Protective Devices.

Chapter two of the book gives a quick-and-dirty overview of the economic motivations for patent law. I should tell you that Ben Klemens and I were both students at Caltech's PhD program for Social Sciences, so I was half expecting him to whip out the infinite sequences of integrals over a Riemann manifold here. But he either didn't think the Greek relevant or chose to spare us mere mortals, because he keeps the theory pretty simple: patents are supposed to maximize the size of the market. If nobody is providing a good, patents should induce somebody to provide, but if many people are providing the good, then a good patent regime shouldn't diminish that number of providers to one.

You can see where this is going: patents on software are often not necessary to induce code-writing, and when they do exist they seriously diminish what could have been a crowded market. He ties this to finding the optimal breadth of a patent, because a too-broad patent gives the owner a cheap monopoly over a range that could have held a large number of competitors.

The next chapter is the computer science chapter. He goes into detail about how we go from transistors to instruction sets, which turns out to be important in the next chapter when patent examiners try to draw a line between the two. He also talks about how one could write up a symbol table to translate any given program into lambda calculus expressions, which are pure math by any definition of the term. If pure math isn't patentable, and a program can be translated into a pure mathematical expression, then where does the program get off being patentable?

Chapter four shows how U.S. law went from disallowing software patents to letting through patents on anything sort of techy-sounding. The first alibi by the courts is that code may be pure math, but a machine on which is programmed pure math is a physical device, just like a toaster. Klemens tries to address this via the discussion above about how the transistors are soldered on at the factory, but the programs coded onto them are just states on a state machine. He brings up the breadth problem above: a patent for an algorithm on any general-purpose computer is a patent of huge breadth.

The second alibi by the courts is that the application of an equation to a useful purpose is distinct from the equation itself. As tenuous as such a distinction is, it hasn't held, so there are now patents on the books for math applied to useful purposes like a "Method for performing complex fast Fourier transforms," a "Method of efficient gradient computation," and a "Cosine algorithm for relatively small angles."

That's the thrust of the theory that Klemens covers. Most of the rest of the book shows how software patents in the real world create problems. He cites interviews with venture capitalists by a University of Texas researcher in which they say that they just expect to be violating patents left and right in the normal course of business. He cites another set of researchers who surveyed technologists in a variety of fields, and found that companies in most fields mostly patent in order to protect their inventions, while computing companies are most likely to patent so they can game the system.

Klemens seems to be downplaying the role of open source in all of this. In Chapter 6, he points out that the U.S. software market is evenly split between software companies (32.6%), consultants (36.4%), and in-house software (31.0%). That is, most software isn't written by software companies, and some of that not-software-company software is OSS. It's the decentralization, not the openness, that matters. Patents have never been applied to a decentralized industry before, and they don't work there because independent invention is not a valid defense against claims of patent infringement, and independent invention is inevitable in such a decentralized industry.

Finally, the book covers copyright, which makes sense because if patents really are going to be thrown out, then coders will be relying on copyright more. For example, the GPL is based on copyright protection. The recommendation here is that copyright be aimed at detecting plagiarism anywhere along the line, so if you cut and paste my FORTRAN code and run it through f2c, your C code is still infringing my copyrights. He points out that software is uniquely well-suited to enforcing copyright all along the development process, because coders have backups and RCS repositories that poets don't keep.

Klemens's anti-software patent position happens to be the position I believed when I started reading, so I can't say that he changed my mind. But he did point out many arguments, stories, and facts that I hadn't known (or had misheard) beforehand.

Klemens covers a lot of ground in an ADD-friendly manner, and if you don't like one of his arguments against software patents, he has ten more for you to try out. For me, he made the injustice in software patents salient, and by the end of the book I wanted to find a machine to rage against—or to at least send my copy of the book to my Congressman. In fact, on the Brookings Institution website, Klemens suggests political action, because Congress has patent reforms in process that won't fix software patents without a push from the rest of us. Hopefully, this book will be a step in the right direction.

---

You can purchase Math You Can't Use: Patents, Copyright and Software from bn.com. Slashdot welcomes readers' book reviews -- to see your own review here, read the book review guidelines, then visit the submission page.

Huh?

Roughly 90% of web content consists of discussions of software patents...

Do you mean 90% of software patent discussions happen on the Web? I'd believe that a lot more easily.

WTF?

Roughly 90% of web content consists of discussions of software patents

What internets are you using?

Post:

Thats what I would mod the summary of this post. The /. editors trying to be funny?

Software patents are great

They're great as long as we don't have them here in Europe. I just love getting up every morning wondering what stupid US software or business method patent I'm going to infringe today. Enjoy your litigation suckers!

duh

Roughly 90% of web content consists of discussions of software patents.

Roughly 90% of web content are porn or porn related is more believable.

right....

Looks like someone forgot to factor in all the porn on the web in that 90%.

90% huh?

"Roughly 90% of web content consists of discussions of software patents" - so all this time I thought I was browsing blogs, news stories, gaming sites, and tech articles I was really just learning about software patents? And I always thought that 90% of the web was made up of porn and spam ...

As a spokesperson for lawyers

I wholeheartedly discourage you to read Mr. Klemens' book and instead encourage you to rely on, for example, some kind of electronic forum where widespread misunderstanding and disinformation about intellectual property law runs rampant. If only such a thing actually existed, it would mean more work for lawyers. Oh well.

the Truth...

...is that 90% of the Internets is composed of /.-ers pretending to know what they're talking about and propping up their assertions with bogus statistics in an attempt to out-FUD Microsoft while promoting FOSS and Web 2.0 via ponies and tubes. Or something.

Roughly 90% of web content consists of Porn

"Roughly 90% of web content consists of discussions of software patents, so it's a little surprising that Ben Klemens has written what may be the first dead-trees book analyzing their validity...

When a review or article begins with a statement that is so absurdly incorrect, it makes me wonder how factual or researched the rest of the review can be. One can only hope that the Author meant to say that 90% of discussions over copyright are related to the web or occur on the web. Otherwise, I would take the rest of his review with a grain of salt.

Yahma
ProxyStorm [proxystorm.com] - An anonymous, apache based proxy created for individuals concerned about protecting their privacy.

What is a software patent

The simple question "what is a software patent?" is suprizingly difficult.

For example, if you were to design a new carburator, there's an excellent chance that software would be a key component in its preferred embodiment. If so, does this disallow a patent? And if so, does that mean replacing any component in a patented invention with software protect you from allegations of patent violation?

But what about inventions that are pure computing? Well, patented inventions that only involve computing are rarer, because pure computing doesn't actually do much good. That's just moving electrons around. There generally are real-world components and ramifications to the thing - otherwise, why bother? Even the infamous one-click shopping patent involves the exchange of money for goods - thus software is only a one part of it.

I would think a bullet-proof definition of software patents is needed before they can be forbidden.

Roughly 90%?

Where the hell do they get this figure? What "content" are they talking about? Certainly not web content in general. If anything is a contender for "roughly 90%" of the content on the web, it's porn. Even 90% of Slashdot's content isn't about patents, and it's a big deal on here... Sheesh.

Who would buy this book?

Is there someone out there going "Hmm, I don't know how I stand on software patents. I know I'll buy a book on why they are bad and one on why they are good!"

Chances are someone who hates patents knows why they hate them, and doesn't need a book to tell them why. Someone who likes patents isn't going to buy it thats for sure. People that don't care ether way will probably find better things to read.

 

Re:Who would buy this book?

Sometimes, that's exactly what you need to do. Especially when you aren't content with letting sound-bites define your opinions and the subject is complicated. A while ago, I bought three books:

A Time for War: The United States and Vietnam, 1941-1975 [amazon.com]
In Retrospect:: The Tragedy and Lessons of Vietnam [amazon.com]
Dereliction of Duty: Johnson, McNamara, the Joint Chiefs of Staff, and the Lies That Led to Vietnam [amazon.com]

I wanted a relatively unbiased view and then arguments from both sides. It's a good method if you have the time and a willingness to actually understand the issues.

Cheers,
Dave

This just in...

Al Gore has patented the power point presentation.

Becoming a statistic

Anyone else find it ironic that 90% of the comments to this article are complaining about the first sentence in the summary?

Welcome to /.

Patents and why they shouldn't be granted...

Recently my company and several other companies came to the relisation that what we've been doing for years may have been patented in 2004. We pulled the patent description from the online patent warehouse and read through it. The patent was incredibly terse and offered no specifics as to "How" the system really worked. Instead of outlining protocols used, or specific procedures for each step in the process they instead used generic terms such as "A network protocol will be used" it didn't state what protocols were used, nor did it bother to state specifics about formats used for files or their content, instead relying on terms like "images" and "on disk" It made no reference to the standards already in place to accomplish this same procedure, but instead used generic terms again. In it's implementation they are using technology that's the property of a specific orgtanization, but they never mentioned what they were doing or using in the patent. (btw the technology owner is already fighting this in court stating that the standard they built on is their property and an exclusive patent can not be granted to Fuji since it incorporates a patented technology... ug... ) So here's the problem. If you beleive the patent and take it at it's face value, the entire concept of storing images online and having users of a system on the web being able to access and download them is now the propery (as of 2004) of the Fuji corporation...pending the outcome of the legal battle to revoke the patent. Anyone else see the problem here? If the patent office is so inept and incredibly ill informed that they will grant a patent that doesn't meet the bare minimum of a technology patent, why should it be granted in the first place? Where's the peer review? Where's the investigation to see if the technology attempting to be patented isn't already part of an "industrial domain" or even "public domain"? Now if Fuji wanted to tie everyone up in court they could claim that any systems that use the same techniques as theirs are patent violations. My rule is, if you don't understand it, you can't pass judgement on it. If you don't understand the technology you can't make judgements as to patents, copyrights or other governing issues. So for the time being... I rule no patents on any software systems. You can copy right your code, you can patent a new technology, but only if you provide specifc code samples and output sample of the technology full schemetics etc....and if your'e building on someone else's technology... you can't patent it!

Approximately 67% of statistics....

...are made up on the spot.

90%

Wow, and I thought it was porn.

Seriously though, how the hell does one come up with a number like that. I've seen less than 10% myself.

Patents do maximize the size of the market

...the lawyer's market. Patent theory doesn't specify which market the size of which patents maximize!

--Rob

You Can't Patent Software: Patenting It Is Wrong

You Can't Patent Software: Patenting Software Is Wrong

So writes Peter Junger (successful appellant in Junger v Daly which
effectively overturned the US Export Cryptography laws. The court
held "Because computer source code is an expressive means for the
exchange of information and ideas about computer programming, we hold
that it is protected by the First Amendment.")

Peter writes in his argument in the URL below...

"In the twenty-five years since the decision of the Supreme Court in Diehr the
Court has not considered a single case in which there was a challenge to a
software patent. Instead, until very recently, it has left issues of patent law
to the Federal Court of Appeals for the Federal Circuit, a specialized Article
III Court created in 1982 that now hears all appeals from the Board of Patent
Appeals in patent cases as well as most such appeals from the federal district
courts.111
Over the years since then, the Federal Circuit has tried to wriggle its way
around the Supreme Court's holdings in Benson, Flook and Diehr and now acts
as if it had overruled those decisions. "

http://samsara.law.cwru.edu/patart/ [cwru.edu]
http://samsara.law.cwru.edu/patart/patartpdf/patla w.pdf [cwru.edu]

Either that figure is incorrect

or these discussions usually consist of naked males and/or females agreeing with each other about software patents a lot.

Is the Klemens who was a grad student at tech?

I think so but not sure.

If it is and you are reading this congrats on your book.

Segregating the Game

Maybe we should play it like this:

- Hide patents (ie. don't make them public, but do allow people/groups to register them).
- If a person/group tries to patent something, then, if it was already patented, the person/group is not allowed to use it (without permission / license from the originial patenter).
- Everyone else who doesn't play the patent game is unaffected by patents.

It's like being in an MMO game that allows you to choose to play PvP or not. If you don't choose to, then others can't harras/kill you. ;)

A well known fact:

88.7134% of all statistics are made up on the fly.

Fsck software patents!

Someday this whole software patent/IP patent insanity is going to implode the galaxy- then if any of us are left, we will have to immigrate to a different galaxy to infest.

Copyright should already cover what needs to be covered, but even that is too restricted to enable innovation and improvement.

IP protection is what will eventually turn our world to the post apocolyptic scenario's.
(trying to protect it will bring on the end)

if the math perspective is to fit...

..Then it seems the calculator simply needs to be made easier to use so the typical user can use it to generate programs as they need or are inspired to. Like numerical calculators are used today.

Is such a thing possible?

absolutely... its called abstraction physics.

Numbers and math are a subset or symptom of the application of abstraction physics.

http://threeseas.net/abstraction_physics.html [threeseas.net]

I'm tempted to buy the book just to see if he gets close or is pulling clever wool over users eyes.

HEY! All Patents are bad

First off, I have worked in a lot of startups and have seen first hand how patents work ... so let me explain. Unless it's a lawyer startup, most innovators and startups will get a patnet for one reason and one reason only. To hold off the lawsuits. Sometimes it gives investors a warm cozy feeling of "protection", sometimes it gets us in good on a cross licensing agreement so we avoid even more lawsuits, but the number one reason is really lawsuits and that is all. While, in theory, you don't need to get a patent to prove prior art, in practice nothing holds back the dogs better then shoving a patent in their face and telling them F**k off.

Second off, many don't seem to understand that patents don't encourage innovation, all they do is force the market to center arround invention controlls instead of invention services. Well, let me tell you, inventors are good at inventing things, large corporations, lawyers, and governments are good at controlling things. So in the end, patnets do not help inventors, they help monopolies and bureauocrats.

Third off, right now patents are bearable because the control value of them tends to exceed the service value. But eventually nanotech and 3d printers are going to greate a new age of manufacturing and invention service centered from the home. Just look at what the copyright cartel did when they started to loose controll over information monopolies, well with patents it will be far more violent.

90%

I thought 90% of the web consisted of porn.

Obviously not!

I heard it was 74%

Re:Obvious statistics

Including your 83% statistic.

Re:Legal theory of intellectual property

Actually, IP as a whole is bad. You can't "own" an idea. People were coming up with ideas and inventions, and making profit off them long before anyone came up with the idea of patents. The whole idea of IP and Patents does a lot more to hinder progress than help it. Of course, that's just my opinion, but it has as many examples backing it up as any opposing opinion.

Re:Legal theory of intellectual property

Heh! Well if that's the legal theory of intellectual property, thank God we're making some headway in getting politicians to follow the economic theory here in the UK and Europe.