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Apple-Motorola Judge Questions Need For Software Patents 372

Posted by Soulskill
from the you-boys-go-on-home-now dept.
imamac sends this quote from a Reuters report: "The U.S. judge who tossed out one of the biggest court cases in Apple's smartphone technology battle is questioning whether patents should cover software or most other industries at all. ... Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug. Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets — a benefit they would still get if there were no software patents. 'It's not clear that we really need patents in most industries,' he said. Also, devices like smartphones have thousands of component features, and they all receive legal protection. 'You just have this proliferation of patents,' Posner said. 'It's a problem.' ... The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it."
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Apple-Motorola Judge Questions Need For Software Patents

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  • by Anonymous Coward on Friday July 06, 2012 @09:39AM (#40563005)

    Why does it need one veteran specialist to see that broken is broken? Everybody else still considers the courts to be, well, like tennis courts. A game is played according to arbitrary rules, and the best specialists win.

    What do we need engineers for? The courtrooms are where it is decided who is innovating.

  • He volunteered... (Score:5, Insightful)

    by Gideon Wells (1412675) on Friday July 06, 2012 @09:40AM (#40563015)

    On one hand, I agree with him. On the other, we have a judge who volunteered apparently just to make a stand in this case. How long before "receptive" judges start volunteering to argue for the other side...

  • by Infiniti2000 (1720222) on Friday July 06, 2012 @09:40AM (#40563021)
    This guy, Richard Posner, is my new hero.
  • Meh (Score:5, Insightful)

    by Greyfox (87712) on Friday July 06, 2012 @09:45AM (#40563079) Homepage Journal
    I've seen some software things done that were truly patent-worthy. I've seen way - way more obvious lame crap. Overall I'd say they slow progress down more than they help it. Imagine what would have happened if someone had patented quicksort or some of the design patterns. The LZW algorithm that made GIFs inaccessible until the late 90s was bad enough.

    Unfortunately, I don't see the current state of affairs changing anytime soon. There are too many people invested in the current system, and campaigning on a platform of IP reform isn't likely to gain much traction with the public at large, at least not without a LOT more *AA lawsuits. I'm sure the *AA realizes this and keeps its lawsuits fairly discreet and under the public's pain threshold, while they work on conditioning people that copying is theft.

  • by captainpanic (1173915) on Friday July 06, 2012 @09:48AM (#40563133)

    A judge should check whether someone acts within the limits set by the law. A judge shouldn't be publicly trying to change the laws, just like a politician should not try to get involved in a court case to get someone convicted.

    Still, I agree that our patent system is over-used, and it seems that it often inhibits innovation instead of facilitate it.

  • Re:Meh (Score:5, Insightful)

    by betterunixthanunix (980855) on Friday July 06, 2012 @09:48AM (#40563135)

    I've seen some software things done that were truly patent-worthy

    Except that mathematics is not patentable, and we has fundamental results about software being a form of math:

    https://en.wikipedia.org/wiki/Curry-Howard_Isomorphism [wikipedia.org]

    So why make apologies for software patents? Either we stop trying to uphold the previous principles that made math unpatentable, or we stop giving out patents on math that is expressed as software. Otherwise we just have the mess that we see today.

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by codewarren (927270) on Friday July 06, 2012 @09:52AM (#40563185)

    You are ignoring the counter argument that it was patents which allowed the US companies to create medications in the first place. Medications that are cheap today now that patents have expired, only existed because the US made it profitable for companies to develop them in the first place.

    (I'm not saying this is definitely true, just that you've acted as if the argument doesn't exist and "making drugs cheap" is an obvious solution)

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by CanHasDIY (1672858) on Friday July 06, 2012 @09:53AM (#40563199) Homepage Journal

    What's your proposal for funding drug research?

    Funded via NIH and public universities... in other words, exactly the way we fund it now.

    The difference would be, the public (who already pays for the research) would be the direct beneficiaries of the research, instead of pharmaceutical companies getting to claim a monopoly on what should, by all law and rights, be public domain.

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by TheGratefulNet (143330) on Friday July 06, 2012 @09:59AM (#40563275)

    pharma is TOO IMPORTANT to be left to money-grubbing capitalists. its like infrastructure, it should be maintained by the gov who will be a little less of a pain-in-the-ass than the pharma companies.

    we have the gov do things that we rely on for common good. pharma should be one of them.

    the idea of profiting from others' pain is so WRONG, I can't even get my head around why we allow such evil practices.

    at some point, we should think about how we can convert this 'business' back into the charity and caring set of goals it was SUPPOSED to be in the first place.

    a lot of things should have profit taken out of it.

    profit is evil. more and more, I'm seeing how our 'money, at all cost!' civ is just entirely designed wrong.

    "sorry, you have to suffer. our prices are more important than your pain relief"

    unbelievable. I wish there was a hell; so that the pharma (and similar) ceo's could go to 'retire' when they die.

  • by Anonymous Coward on Friday July 06, 2012 @10:01AM (#40563283)

    Actually he is doing what a Judge should do, he is examining whether software should fall under patent law. This examination and interpretation is under the purview of the judicial branch.

  • by Anonymous Coward on Friday July 06, 2012 @10:04AM (#40563307)

    You would be protected sufficiently by copyright, a patent means something else.

    Look at it from this perspective, using patents the way you want limits the software industry by saying only this company can make any kind of a software that does this. This has a very negative effect on the industry because they last 16 years. Additionally, patents are supposed to be qualified to protect inventions and that those are unique and not easily thought of by others. By comparison, thousands of programmers have already created applications that partially duplicate everything that is in existence in someway now. So the real question is... are you really creating something new, or are you just trying to write software and use a legal methods to force your relevance instead of just being better at it than the programmer next to you?

  • Re:Oblig: TED Talk (Score:4, Insightful)

    by Impy the Impiuos Imp (442658) on Friday July 06, 2012 @10:06AM (#40563339) Journal

    This is exactly right.

    The choice isn't between new expensive medicines and new cheap medicines.

    It's between new expensive medicines and no new medicines at all.

    If you slow technological development by eviscerating the profit motive (imagine the idiocy of applying it to computers, smart phones, and Internet tech 20 years ago), with medicine, people die who otherwise wouldn't.

    20 or 50 years go by, and the tech lags further and further behind where it otherwise would be. This causes increased numbers of deaths who wouldn't otherwise die, like compounding interest.

    Had the US been like Europe the past 70 years (and I'm not talking just medicine, but general business unfriendliness) then would the US's production (half of all new medicines) been like Europe's instead?

    And you'd stand here in 2012. Happy with your 1980-level "free" medical tech?

    If your ears burn over this, they should. You could already be killing people like a major war does. Had Europe spit out medicine like the US does during this time, maybe we'd have 2025 or 2035-level medical tech, and more lives would be saved by the millions each year.

    You just can't shove these hypothetically saved lives in front of a camera, the way you can with lives lost due to an expensive medicine. But there's no comparison in the numbers, it's not even close.

  • by w_dragon (1802458) on Friday July 06, 2012 @10:07AM (#40563357)
    That would be a copyright violation, which has nothing to do with patents. Unless by 'rips off' you mean 'reimplements without access you my source code', in which case I'm not seeing the problem. Marketing is part of business, and if your business can't do it, even with a significant first-mover advantage, why should someone else not be allowed to compete with you?
  • by jpstanle (1604059) on Friday July 06, 2012 @10:09AM (#40563387)

    If he "rips it off" then he is violating copyright protections. If he copies the look and feel of the software with the intent to deceive or confuse the customer, then there is probably a trademark violation. If he just duplicates the functionality of the software, well, that's just competition. Deal with it.

  • Re:Oblig: TED Talk (Score:4, Insightful)

    by Shompol (1690084) on Friday July 06, 2012 @10:12AM (#40563431)
    The same pharma companies that spend over 50% of budget on marketing and advertising? Don't you think it is a little wasteful?
    PS: No, I don't need to provide a link, google it.
  • by WillDraven (760005) on Friday July 06, 2012 @10:15AM (#40563467) Homepage

    There is a bit of a difference between "I'm taking taking this persons side" and "the fact that you're both in court over this at all is stupid."

  • by Zaphod The 42nd (1205578) on Friday July 06, 2012 @10:22AM (#40563615)
    As a software programmer, I think you're loony, and you haven't been paying attention to how dangerous these patents are.

    Programmers in Europe are now refusing to sell their software in the US. Why? It would cost them LITERALLY NOTHING to distribute. Its digital. They just have to make the sales, and collect the money.

    So why don't they do it? Because they're TERRIFIED of US patents. Its a goddamned nightmare. You're walking blind through a minefield! You spend years of your life on some app, and then find out that because of a tiny patent from 10 years ago that has almost nothing to do with anything, you're about to be sued into oblivion.

    Patents are STATE SPONSORED MONOPOLIES. In this day and age, technological advancement is its own reward. Being first to market is enough. You don't need government sponsored monopolies to convince companies to invest in R&D, they're not stupid.
  • Re:Oblig: TED Talk (Score:4, Insightful)

    by PopeRatzo (965947) on Friday July 06, 2012 @10:23AM (#40563637) Homepage Journal

    You're under the impression that the private pharmaceuticals do nothing by way of funding the drug discovery process?

    Pretty much. The heavy lifting is done for them and the research they do is heavily subsidized by taxpayers.

    And, their research is entirely in high-profit drugs that may or may not be important for human health.

    Also, look at how often they get it wrong. Huge money spent researching a non-steroidal anti-inflammatory that is less effective than Ibuprofen (whose patent has expired) and happens to give you a heart attack.

    I should disclose here that I am alive today pretty much only because I was involved in a drug trial in the 1990s due to a nasty type of lymphoma. I'm completely better, no recurrence in almost 16 years now. I really tried to find out the provenance behind the drug I was given: almost entirely funded publicly, and my care was given at a non-profit hospital.

    I was born during a time when almost all medical care was done on a non-profit basis. People got paid, but you do get to be paid in a non-profit setting. Doctors lived really nice, upper-middle class lives. Best house on the block and that sort of thing. It all went haywire when the profit motive took over everything in medicine.

    Oh, and the increase in life expectancy that has occurred during my lifetime happened mostly before the for-profits took over.

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by ZeroSumHappiness (1710320) on Friday July 06, 2012 @10:28AM (#40563743)

    It's not necessarily wasteful if it grows the budget by more than it costs.

    For example, let's say I have a small company and my non-marketing costs are $10k a year (example numbers here.) Furthermore, let's say it'll cost me that $10k a year no matter whether I sell nothing or sell 100 units. (Actual pill-by-pill production is cheap. Setting up the factory is expensive. Getting a drug approved is expensive. Finding a drug to get approved is expensive.)

    If I spend $2k in marketing maybe I can sell $8k in product, providing the drug to 80 people a year. Okay, sure, not terrible.
    Maybe if I spend $4k in marketing I sell $10k in product, providing for 100 people.
    Maybe if I spend $10k I sell $20k in product, proving for 200 people.

    Is that $10k in marketing "a waste"? Well, if I spent half as much I'd make less profit. If I spent half as much I'd help fewer people. If I spent half as much I'd have less profit to put into creating new drug lines.

    I understand where you're coming from, the idea that marketing is a drain on the economy since it produces nothing, but for an individual company it could be the difference between new drugs being developed or the company going bust.

    I think what you're actually proposing is a pure collectivization of drug discovery. The problem I see with that is how do we then ensure we culture the right drugs? Drug discovery is hard. Immensely hard. Failures are often and expensive and government is poorly equipped to make entrepreneurial decisions. That's why we currently rely on private companies to make the decisions on who is a good research and who is a bad researcher when a company in total only makes two or three really profitable drugs every decade. We can allow those companies to fail if they can no longer produce. It's a lot harder to let a government program "fail" like that.

  • Re:Oblig: TED Talk (Score:4, Insightful)

    by ozmanjusri (601766) <aussie_bob@nOsPAm.hotmail.com> on Friday July 06, 2012 @10:32AM (#40563829) Journal

    It's not necessarily wasteful if it grows the budget by more than it costs.

    For healthcare, yes it is.

    Think about it.

  • by Samantha Wright (1324923) on Friday July 06, 2012 @10:33AM (#40563845) Homepage Journal

    He still he had an extremely sound point when he indicated that Apple and Motorola couldn't actually prove significant damages. I doubt there will be too many other judges (outside of perhaps a fabulously corrupt district) who would reverse that. The patent suits that seem to do really well are the ones referring to cutting-edge and recently-released products, where the economic harm doesn't need to be proven because it's too new to tell. (I think.)

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by Dr_Barnowl (709838) on Friday July 06, 2012 @10:35AM (#40563875)

    What if they could make a pill that cured the source of your pain, relieving you of both your pain AND your financial burden to pay them?

    Do you think they would?

    Or do you think they'd quietly keep supplying you your painkiller for 17 years, until the patent expired, and then try and sell you a new one developed solely because they can't make the same margin on the old one, now that any chemist worth a damn can legally make it for a few cents per pill?

  • Re:Oblig: TED Talk (Score:2, Insightful)

    by Anonymous Coward on Friday July 06, 2012 @10:51AM (#40564059)

    Of course they would make that pill. They could, after all, price it however they wanted.

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by mjm1231 (751545) on Friday July 06, 2012 @10:53AM (#40564085)

    Seriously? I heard of cholesterol as a health problem long before Lipitor existed, and before direct to consumer drug advertising was even a thing.

    If you are relying on advertising for your information about the world, I don't like your prospects for health and well being in any case.

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by FictionPimp (712802) on Friday July 06, 2012 @11:25AM (#40564531) Homepage

    I never see cures advertised. Only maintenance drugs. I hope I'm wrong, but it seems like drug companies don't want cures, they want dugs that mask symptoms that you need to take for the rest of your life.

    Is it better to cure aids or to let someone live on a daily pill with aids?

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by Nadaka (224565) on Friday July 06, 2012 @11:26AM (#40564545)

    You don't understand.

    There are a fixed number of people who need a drug for their health problems.

    Giving a drug to someone who does not need it is malpractice.

    Advertising drugs does not really increase your legally and ethically available customer base.

  • Re:Oblig: TED Talk (Score:5, Insightful)

    by Applekid (993327) on Friday July 06, 2012 @11:28AM (#40564581)

    If I never hear about Lipitor maybe I never bother getting a cholesterol screening and then die of heart disease at 37 instead of going to my doctor at 35 and saying, "Hey, I heard about this Lipitor thing and that men from age 35 should have cholesterol screenings."

    One should go to the doctor yearly. This is a healthy habit, right up there with brushing your teeth and exercise and cooking food thoroughly.

    The only point of marketing to the mass public is to make them think they want something. They want someone who's feeling a little down today see a commercial for an anti-depressant and say "hey, *I* am feeling down, maybe I'm clinically depressed, clearly I need this pill." They should only be marketing to doctors, and even then it shouldn't be by giving away swag and lunches to a doctor and their staff, it should be a just-the-facts operation. This medication treats xyz better than this other one, just look at these reduced side effects.

    What I'm getting at is that you're doctor should already be running the blood work and should be bringing up your cholesterol levels up to you. That's why they're licensed: they are acting as your agents regarding health.

    That's why sensible countries prohibit the drug industry from advertising.

  • Re:Oblig: TED Talk (Score:4, Insightful)

    by Ironhandx (1762146) on Friday July 06, 2012 @11:39AM (#40564669)

    Whatever you may think, government is the only large organization that is even a little bit likely to do things for the common good.

    Everything else is profit at all costs. The idea that the "Free Market" or some other voodoo can sort it out is a bullshit story told by the same people with a shitload of money who benefit more from less government to protect the people they are exploiting.

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