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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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  • Oblig: TED Talk (Score:5, Interesting)

    by scorp1us (235526) on Friday July 06, 2012 @09:35AM (#40562949) Journal
    • by bfandreas (603438)
      Wow, thank you. I didn't know this one.
      It's a really humbling day when somebody from the fashion industry has to explain the tech and media world why copyright doesn't actually achieve what it was supposed to achieve.
      Patents at least don't last forever. But they are very very silly at the moment as evidenced by the stupid little rent seeking lawsuits by Apple.
  • by Anonymous Coward

    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.

    • How is tennis game won by specialists? A good tennis player is a good tennis player. Sports really takes skills. It really does. Sports is amazingly difficult career and something "engineers" and geeks don't see. And don't get me even started on the psychological aspect of having the necessary coping skills to be a celebrity and always on spotlight.
      • by Fwipp (1473271)

        Being a specialist isn't a bad thing, but asking a specialist in astrophysics to authoritatively decide the relative merits of various Baroque music compositions is.

  • 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...

    • Re: (Score:3, Informative)

      by Anonymous Coward

      Not quite... if you RTA fully, you'll find out he only registered his interest in any cases involving patents with the lower courts, and the judge that was assigned the case requested to transfer it over to him, which he accepted.

      So, no, he didn't get to rummage around in the bin for this one. It was 3 interlocking pieces:

      1) The judge from Wisconsin the system assigned the case to knew (or was informed) of Posners interest in patent cases and asked to transfer it to him.
      2) Various pieces of judicial adminis

    • 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 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.

    • 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.

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

        Atoms aren't patentable. We know that machines are just a collection of atoms. Therefore, no machine should be patentable.

        There are several good arguments for why software patents do not achieve the goals that the patent system is supposed to have. "Software is just math" is not one of them.

  • not a fan of... (Score:5, Interesting)

    by ganjadude (952775) on Friday July 06, 2012 @09:48AM (#40563131) Homepage
    patents, but what about a compromise? What if software patents and electronic patents were only valid for like 2 years, that in the computer world is more than enough time for you to recover your research money without hampering the development of future tech. I would prefer none but I think this would be a fair compromise.
  • 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.

    • 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.

      • If you put it like that, you have a good point (sorry, can't mod you up).
        I read it as if the judge proposed to change the law so that software no longer falls under the patent law.

        I read the article again, and it's still not clear to me which of the two is the case here.

    • In his defense, if a lot of these patents seem overly obvious (slide to unlock on a TOUCH device? c'mon...) then he should be throwing these lawsuits out.
    • The judge is not publicly trying to change anything, unless you can show evidence to the contrary. He is merely giving his higly qualified opinion, which as a judge, he's not only entitled to do, but encouraged to do so.

      Maybe your just taking your nym to literally... LOL
    • 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.

      Huh? A judge should totally try and change the laws, just like any other citizen should. No, he shouldn't do it in the context of his job, but this doesn't appear to be the case. He's not denying the validity of patents in the cases that come before him, but in his office, when he's not behind the bench, he's offering critical opinion of existing law based on his experience as a judge. More power to him! Wish there were more doing the same.

      • when he's not behind the bench, he's offering critical opinion of existing law

        Posner's critical opinions could be used by patent maximalists to show bias in an attempt to force Posner to recuse himself.

    • 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.

      Were there laws written specific to allow software patents, or did some judge decide at some point that patent laws applied to software design? If it was decided in a prior case, what is the judge's obligation to follow precedent in this case?

      A lot of US law is, in fact, set in precedent in courts. There is a protocol for when judges are supposed to follow precedents, but even so, they can find a way to challenge it if they need to. The real test is whether their challenge will stand up on appeal.

    • by u38cg (607297)
      Common law much?
    • And if a judge wants to consider that several patents are overreaching the patent law, or wants to consider the interpretation of the law, he can.

      You don't know the first thing about the law system, don't go telling judges what to do. Seriously.

      IANAL, and neither are you. Come back when you get a law degree, and then tell me what judges can and can't do.
  • Judges should stick to judging, and leave legislating to legislatures. Software patents may be a bad idea, and the modern patent system may be detrimental to innovation, but that is not the concern of judges. Judges are supposed to decide based on legality, they are not supposed to decide the sensibility. The Constitution clearly gives the government the power to issue patents. So it is up to Congress to fix this, and that won't happen until enough voters care.

    • Except if he finds that software shouldn't have been patentable in the first place by the patent law.

      Software = Math. And the original patent law states very clearly you cannot patent math.

      Judges ARE supposed to consider how laws should be interpreted.
    • by Halo1 (136547)

      Judges should stick to judging, and leave legislating to legislatures. Software patents may be a bad idea, and the modern patent system may be detrimental to innovation, but that is not the concern of judges. Judges are supposed to decide based on legality, they are not supposed to decide the sensibility. The Constitution clearly gives the government the power to issue patents. So it is up to Congress to fix this, and that won't happen until enough voters care.

      You seem to forget the part whereby software patents used to be forbidden, and then were gradually introduced via several court cases, most famous of which are Diamond v. Diehr [wikipedia.org] and the State Street decision [wikipedia.org]. There is no law by the US Congress that either specifically allows or forbids software patents. All of the software patent decisions until now have been legislation from the bench.

      And given that the US Constitution explicitly specifies that patents can only be be granted in order to "promote the progres

    • by T.E.D. (34228)

      That is true. However, it is exactly the Court's job to decide what the law actually says when there is a disagreement about same. Somebody has to be the ultimate authority on that, and this is their job.

      Also, the Constitution does not give the Government the power to issue patents for just anything the government feel like issuing them for. In particular, it has to be an inventor's discovery. Can things like "business methods" or algorithms be considered "inventions"? You and I have an opinion. However, te

  • by Supp0rtLinux (594509) <Supp0rtLinux@yahoo.com> on Friday July 06, 2012 @09:55AM (#40563223)
    Its starting to sound like Posner had a specific agenda. After all, he volunteered for this one. It would seem that instead of being a judge and enforcing or enacting the law, he used this as his proverbial soapbox and to make a point. I can't wait for Apple to realize this (they probably already have) and appeal for a new trial to go forward thanks to Posner expressing his opinions, etc. The fact is, Posner doesn't make the laws; he interprets and applies them. By volunteering for the case, then shooting it down, then talking about his discontent with technological patents, he's made it pretty clear he has an agenda.
    • Also, his comparison to pharma is a bit off. Sure they invest years into stuff, but how many of them do we later find out faked tests or results and years later are being sued for killing or harming thousands? Not to mention the idea of gene patents and such. Even worse, for most of the psychological drugs out there, the pharmas don't really even know how they work. Sure they know they're affecting neurotransmitters or serotonin levels, etc, but whereas a technology patent such as Apple might have is intend
    • 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.)

  • had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

    Yeah, too bad Bayer doesn't make any money at all on acetyl salicylic acid because it hasn't been patent protected for many, many years. What the hell is this argument for drug companies? It becomes hardER to earn a profit once the patent expires, but it's certainly not impossible to do so. You would think that monopoly is the only way to make money, according to them. No, monopoly gets you the $50 pill and the $500 vaccine.

    • by Shados (741919)

      Some drugs for very rare conditions cost a fortune because they take just as much research as any other drug, but only apply to a few hundred people, if that. If it cost 1 billion to research, but 100 bucks to apply the treatment...you're never making the money back if your competitor just looks at what you did, sell it for $100 * 300 treatments, and call it a day.

      Just an example among many.

  • If you RTFA, you'll realise this is not just about software patents. He's going so far as to suggest that patents are suitable for certain industries (e.g. Pharmaceuticals) where the investment to create the products is immense. Software is one of those industries where patents hold back innovation. Software is more about execution.

  • The problem isn't patents per se. The problem is idiocy in the patent office in collusion with big corporations.

    Somebody is going to invent good robots for the house someday. Somebody is going to invent real artificial intelligence. There's a lot of work jamming forward ever more-efficient high speed 3D algorithms and routing algorithms. People are working on robot cars.

    These things can and should have protection.

    Here's a good rule: If it's just a simulation of something that already exists, and the me

    • But if one person (or company) has a monopoly (which is what a patent is) on artificial intelligence and robots, then basically we're all out of work. And also those people whose shoulders were used to stand on by these new monopolists. IMHO, another sign that patents are inherently wrong.

  • Some of the sitting supreme court justices have implied they aren't sure Software patents are valid either [mashable.com].

    Personally, I think it would be best for both sides if someone took this issue to the Supreme court and got it decided. I have my own opinion of what they should decide, but either way everyone would be better off without the uncertainty.

  • by Zaphod The 42nd (1205578) on Friday July 06, 2012 @10:18AM (#40563535)
    By the definition of patents, software should be un-patentable.
    Math is not patent-able. Math is intrinsic, part of the world and nature around us. We do not invent math, we merely discover it.

    Programs can be converted into Lambda Calculus.
    Lambda Calculus is math.
    Programs are math.
    Programs are un-patentable. QED.

    Copyright is plenty enough.

    "My personal opinion is that algorithms are like mathematics, i.e. inherently non-patentable. It worries me that most patents are about simple ideas that I would expect my students to develop them as part of their homework." - DONALD FUCKING KNUTH

    If you think you know more about Computer Science than Donald Knuth, you're wrong.
  • Good for the judge. AFAIC all patents and copyrights must be abolished, the less government intervention in the economy the healthier the economy is. Today government is involved in every aspect of economy and we can see the outcomes.

  • Several have lambasted the judge for making the statement that he doesn't believe that software patents are necessary, saying that he should confine himself to making judgements on matters of law. However, it's important that a judge make such statements if he observes in the execution of his duties that the application of the law and precedent is not serving the purpose for which it was enacted, or is adversely affecting the court's ability to perform its duty (e.g., something precipitates a flood of lengt

  • by scorp1us (235526) on Friday July 06, 2012 @10:29AM (#40563763) Journal

    For any patent to be granted a list of expenses in developing the patent is also submitted. Then they have patent protection for 10x the expenses in revenue. They will submit an annual report, and any kind of falsification will have the patent terminated. The people who want to use the patent for free will verify the reports to find any falsification. For devices that integrate multiple patents they are allowed to be summed accordingly on a prorated basis.

    This way, there is still incentive to do the R&D, because you'll be able to get multiples of your investment back. But the world gets your patents potentially sooner. If you want to delay the world from getting your patents, then set your prices very low, so ti take a long time to recover them, . Or set your prices high and move onto the next thing. This way everyone wins. They either get really cheap inventions or the patent protection runs out fast. It's a great balance.

    This not only fixes drug patents but software patents too, as most software patents would only costs thousands to develop and would get paid 10x back in a very short time.

  • .... closer!!!

    There are some things you cannot patent: Physical Phenomenon, Natural Law, Abstract ideas. And of these also mathematical algorithms.
    All these are what software is of and then there is the identified physics of abstraction: http://abstractionphysics.net/pmwiki/index.php [abstractionphysics.net]
    It even inspired a known movie trilogy "The Matrix" http://threeseas.net/vicprint/VIC-basic.html [threeseas.net] only you can't kill off the crew or ship in real life and of course Smith loses because he has no choice but to realize he being the second of three agents of Input, Processing and Output, ..... is himself made up of the ship and crew. Interesting how the Oracle and Morpheus were the only survivors from the original considering what the represent in the world of abstraction. Simply put, it is we who create our world of abstractions that constrain what the users of that world can do..... out of all that is possible. see concept #3 http://threeseas.net/vicprint/vic-concepts.html [threeseas.net]

    The point is: Software Patents are acts of fraud. And maybe that is a hard thing for the courts to accept, considering it was one of their's who started this mess of software patents in the U.S. In some back alley courtroom decision.

Some programming languages manage to absorb change, but withstand progress. -- Epigrams in Programming, ACM SIGPLAN Sept. 1982

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