>The first time I was part of a patent application process I was a
developer in an OS group at a major corporation. I told the PA that my
idea was obvious and trivial and therefore would not be patentable.
He laughed and said that everything is obvious and trivial after
you’ve seen how it works. He then went on to explain that what we
think is obvious and trivial really isn’t because if it truly were,
everyone would already be doing it that way.
Most software patents I perused made me cringe in disbelief, because, well,
they may not be obvious to a lawyer, but I’m a computer science professor
and I know better. Some of it is so screaming obvious that many of us never
bothered to look at it twice, and yet we are often enough surprised by some
dude who takes something we all took for granted and tries to make a pass
for getting a patent over it.
I don’t consider implementation to be innovation. Once someone has
seen an existing implementation it’s usually quite easy to come up
with different implementations that duplicate the underlying
functionality of the original. I would think most people, including
those at the patent office, would define innovation more as
“identifying a need and a solution that satisfies that need”. The raw
ideas are the innovation, not the specific implementation of those
ideas.
But patents aren’t there to protect innovative ideas ! They should be there
to protect innovative gadgets, that is, implementation and technology. The
very fact that it must identify “a need” makes it technology and not
science, hence, technology is patentable, but science ? Why ? Patents were
designed to protect inventions, and science is not about inventing, that’s
for inventors, you know, those guys with the gyro hat and one gear loose.
I would suggest spending a few days browsing the software patents that
have been awarded. Each time I receive a stack to review I’m amazed at
some of the things that make me say, “Wow, why didn’t I think of doing
something like that?”.
Oh, believe me, as a software development manater I’ve done it often enough,
and my reaction is often complete disbelief of the things that get
considered to be “innovative” enough to get a patent - makes me wonder about
the level of computer science knowledge of those people who afford such
patents.
I was under the impression that science is the basis for the majority
of patents issued today? Medicine, aerospace, biology, optics,
electronics, etc. Are you saying these things should not be afforded
patent protection?
There’s little computer science that is not published in professional
journals, and little if anything downstream from those embeds any real
innovation. You can patent a gadget, but an equation ? A theory ? A concept
? I hope not. I already cringe seeing algorithms being patented, what, did
they invent the math too ? I don’t know, I think there’s way too much abuse
in that field for me to take it without a big pinch of salt.
But it wasn’t your investment that came up with the raw ideas for
those steps! Someone may have spent 2 years of trial and error coming
up with a new file system that introduces new properties to allow an
OS to do things were not practical in the past. Anyone can implement a
similar file system after they have chance to see it in operation and
explore it’s new properties? Why should they be able to simply copy
what someone else invented at their own expense? What is the incentive
for gambling 2 years of R&D if everyone can just copy it’s unique
design and new features and have a competing product in a month or
two?
Investment alone isn’t enough, you need innovation; because innovation
without investment must also be protected. And most of that innovation comes
from the computer sciency circuit, and is published in professional journals
well before it gets patented by smartasses who take advantage of the
gullibility of the legal profession and their lack of computer science
knowledge. There’s very little software that gets “invented” outside the
researchy circuit, and much of those techniques come from universities and
are published in papers anyway, the rest is pretty much downstream and I
would contend that if it is downstream from published material it doesn’t
deserve that “innovation” title.
I would certainly agree that implementing existing technology in
software should not be patented and I’m not aware of anyone that has
been awarded a patent for doing this. Innovations that are the result
of new ideas not currently seen today should, IMHO, be offered the
same patent protection regardless of the medium of the embodiment, be
it software, hardware, chemical or silly putty.
It doesn’t need to be implementation of existing technology, all it needs to
be is a rehash, reimplementation or a derivation from existing science, and
as far as I’m concerned it’s not entitled to a patent. For example, maybe
Karmarkar was entitled to a patent on his algorithm, although I dispute even
that - but little else in that field will be good enough, IMO, to deserve
that “innovation” label.
Again take everything I say with a grain of salt. I’m not an attorney
nor do I aspire to be one.
Same here. I’m just a layman programming type !
Alberto.
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