I wouldn't even know where to start if I were trying to avoid infringing.

With non-software patents (let's say I'm building a new kind of lawnmower), I could search for patents on lawnmowers, maybe knife blades, or weed whackers. But with software, I think I'd have to search for abstract concepts like "list sorting" but maybe also "representing data in an ordered table" and "appending measurements according to rule."

Is there anyone who doesn't just ignore software patents and then hope for the best?

At least that's better than copyright infringement, where you could be liable for 100,000 times damages.

Groklaw has been fantastic in exposing the fallacies of software patent lawsuits.

Stallman -- we owe a tremendous debt to him in this regard.

But the way America works, nothing really moves in this lousy country unless you band together into a Political Action Committee and lobby Congress with perks. That's how the software patent law got created in the first place, no thanks to Microsoft, Apple, and Lotus, who got that ball rolling.

And imagine how we sound to a politician. Companies like Microsoft and Apple get some time with politicians easily, and make the pitch that they just want to protect the competition from reselling functionality that they offer. I can see a lot of dumb politicians supporting that idea, especially when compared with the pharma industry. And then we anti-software patent guys come in -- first, we'd be lucky to get a couple seconds to say hello. Second, our pitch would be that software patents stifle innovation, rather than grow it, but would have little proof. Also, every other technology industry has a patent law, so the Congressmen would be like, "Why not software, too? Why should that be so special?" And if you try to tell them that sometimes there's like only 4 optimal ways to do a given task sometimes, and therefore we shouldn't be punished for it, they just wouldn't grasp that concept. If you run to the Republicans, they would consider you anti-capitalist. (And I say that even though I mostly vote Republican.) If you run to the Democrats, they would say that these big companies like Microsoft and Apple bankroll their campaigns, so there's no way they would not support those proprietary agendas. There's no way out except through the courts.

In our agenda, we come off as a bunch of disorganized geeks, and politicians don't seem to mix well with geeks, especially disorganized ones. In the proprietary, pro software patent agenda, they come off as established businessmen and millionaires, so politicians love them.

If anyone has a better idea, I'd like to hear it.

His primary point is that ideas are by nature designed to spread for the benefit of society and are not inherently to be made a subject of property - and thus if a society decides to deny to inventors any rights to exclusive claim on an idea, no one has any reason to complain.

In his words:

"That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body."

This is a philosophical argument against the idea of patents generally.

Jefferson lost this argument.

Thus, the Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl. 8) provides that the Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress implemented its constitutional authority to sanction patent monopolies by defining patentable subject matter very broadly, to include "any useful art, manufacture, engine, machine, or device, or any improvement therein." Congress amended the Act in 1793 and then again in 1952, so that today it reads as to the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101): "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

Jefferson made a second very important point in his 1813 letter, and this bears directly on the philosophical dispute underlying the patentability of process or software patents (of course, he did not discuss it in terms of software).

This second point deals with the idea that new uses for old machines or processes should not constitute patentable subject matter.

Jefferson believed that a "machine of which we were possessed, might be applied by every man to any use of which it is susceptible, and that this right ought not to be taken from him and given to a monopolist, because the first perhaps had occasion so to apply it."

In essence, the Jeffersonian position amounted to saying that society was free if it liked to grant limited monopolies on useful ideas that had utility for commerce but there was no inherent right in an inventor to claim such a monopoly - it all depended on the judgment of society. If, however, a society had once decided to grant such monopolies in order to promote commerce, then the monopoly should extend only to the original invention and not to any new use made of it thereafter. Why? Because ideas are meant to be freely transferred for the benefit of society, including the free application of any "machine" by any person to any use of which it is susceptible and, as Jefferson put it, "this right ought not to be taken from him and given to a monopolist."

While Jefferson had lost on the broader idea of abrogating patent protection generally, the more limited idea that discoveries of new uses for old machines or processes were not patentable subject matter did hold sway for quite a while in leading U.S. judicial decisions. For example, in Roberts v. Ryer, 91 U.S. 150, 157 (1875), the Supreme Court held that "it is no new invention to use an old machine for a new purpose."

In 1952, however, Congress explicitly overturned this line of judicial decisions. Specifically, it defined as a patentable process any "process, art, or method" and specified that this included "a new use of a known process, machine, manufacture, composition of matter, or material." (35 U.S.C. sec. 100(b)).

Of course, this 1952 amendment to the Patent Act laid the foundation for a significant expansion of "process" patents and specifically for the adoption of software patents. Why? Because, in a world of general-purpose computing devices, all kinds of existing machines and processes are "susceptible to new uses." Indeed, this is the very nature of software, which can apply to an almost infinite range of potential uses. Once the principle was established that such new uses fell within the statutory definition of "patentable subject matter," then a broad array of such patents could be issued, subject only to meeting other requirements of patentability such as novelty, non-obviousness, utility, etc.

With the modern development of the free and open software movements, the old philosophical debate has taken on new life but the prospects of the "free" side winning this debate, in my view, are likely doubtful. The legal tradition is deeply entrenched in favor of patents, as are the commercial interests. One is left, then, with what amounts to a philosophical argument that patents (or at least process patents) are bad.

Insofar as the law is concerned, the issue will be addressed in the Supreme Court's forthcoming decision in Bilski, expected this year. Beyond that, relevant arguments must be addressed to Congress, which does have the authority to redefine what constitutes patentable subject matter and hence the theoretical power to abolish software patents in general.

Sounding off on blogs definitely furthers the momentum for change but a lot more would be needed to effect a change of view on issues that are so deeply rooted in U.S. history and legal tradition. So long as this remains primarily an ideological position of the free/open software movement, and nothing more, it will likely languish along with the old Jeffersonian sentiment that today sounds so quaintly out of date. I am not saying this in a patronizing way. For something to come of this besides just sounding off, a major shift in mindset has to occur in society generally, and I don't see any evidence of this as yet.

The free software movement is not the only movement to reach this conclusion.

The libertarian tradition itself has now reached a point of consensus regarding the idea of intellectual property, which is to abolish it.

This is a revolution that took place over ten years. It was slow and gradual, but now it is at the point at which all of mises.org, a libertarian think-tank is now licensed all their content under creative common attribution. It also cumlinates with mises.org carrying two book making the case against IP, which is Against Intellectual Property, and a non-Austrian book, Against Intellectual Monopoly.

The free software movement now have allies with the radical libertarians and some of the key major thinker of libertarianism.(Ironically, it shared so many computer programmers as to blur the line somewhat)

Unless there is a majority consenus(66% agree on course of action for example), we wouldn't be able to act as a force for patent reform or even abolishment!

Repeat this theme to all the protectors of property rights out there...

Imagine that people are starting to have a printer that can print any objects from any design at will, including the biological kind. They benefit from sharing designs over time, because not only that their machine can print newer design, but their machine also allow them to recycle objects into new and better one. All that is left is the distribution mechanism for raw material, but once you reach a certain amount of material, you can basically transform old objects into new ones at will, barring the need for new raw and rare exotic materials. Perhaps, people who is able to complete a design will be rewarded with especially rare materials for them to experiment with?

Now what happen if the patent system is still in effect? That mean every person with a 3D printer is barred from printing designs from a patent of an inventor. In order to make lot of money, he essentially bar the people with 3D printers from printing so that he can sell his invention at the market for really high fees. If he come up with an innovative design for a self-replicating machine, he can bar the people with 3D printers as well from doing as they like for twenty years. For whatever reason, he rather have the power rather than becoming one of those nobodies in a society where everyone is become wealthier.

He can practically stop whole community of inventors who don't use patent and have a totally different idea toward sharing the design of invention.

Now imagine an innovative software entrepreneur stopping the open source software community and industry!

Patents doesn't need to be frivolous in order to be dangerous to the progress of technology. It can be innovative and life changing.

But an equally self-interested community of inventors who does thing in the open, may also give you inventions that is innovative and life changing as well.(And it may be just one inventor in the whole community who come up with it as well)

Which path do you want to explore?

If you had a replicator that could produce anything, why would you need money at all? There wouldn't even be markets as we know them today where an inventor could command really high fees. And without needing money, you wouldn't need the government enforced monopoly that is patents to allow restricted exploitation of an idea.

Besides, stupid people would think they'd be being smart by have their 3D printers print money, there by making money worthless.

In this thought experiment, I want to be part of and explore the sharing/open community, because I don't think a community that hides its best (and only assets), it's ideas, when production costs don't exist won't be able to grow as fast as a community that shares. When the key resources, and those that provide the basic necessities, are unlimited, there's no reason not to share.

The only market that might be left, assuming the replicator machine is duplicated enough, is the commodity and energy market, or the sale of extremely rare and exotic materials.

In anycase, people still make money off open hardware these day.

Besides, stupid people would think they'd be being smart by have their 3D printers print money, there by making money worthless.

It would mean that form of money is inferior. If there are still markets left, it would still mean that the phenomena of money will still arise.

In this thought experiment, I want to be part of and explore the sharing/open community, because I don't think a community that hides its best (and only assets), it's ideas, when production costs don't exist won't be able to grow as fast as a community that shares. When the key resources, and those that provide the basic necessities, are unlimited, there's no reason not to share.

Indeed, this is the superior choice for those who wish for economic progress and greater wealth in general. It would seem that today, my thought experiment seem fail in many way to demonstrate what I proposed to demonstrate, because I jump around making too many assumptions and leaps.

My argument would stick more if I use present day maker communities, open source hardware and their manufacturer and firms.

No, there would obviously be no market whatsoever at that point. The step for making most useful things to make absolutely anything will be much smaller than the step from here to making most useful things.

The problem is that without trade or mutual dependence, people might relate in the other most common manner we have - war, with new, ultra-powerful weapons. Not a pleasant thought.

There are a number steps which essentially lead to the "singularity". Once you are there, ALL the old assumptions break down. Citing what people have generally done in the past will no longer make any sense. This isn't to say that it will Hell or Heaven but it will be intense.

It's not by any means certain that the human beings will get to The Singularity . But there are a number of achievements one can specify such that if we reach these levels, then The Singularity will become virtually inevitable. A machine which produce itself and a variety of useful objects is one of these levels.

I didn't realize that my 3D printer has now morphed into matter creators.

Even if manufacturing becomes effectively free, resources won't. You'll still need energy and raw materials.

There wouldn't even be markets as we know them today where an inventor could command really high fees.

Just like the internet made the market for copyrighted information go away, right?

Most people are afraid to experiment without copyright and does not have a business model to exploit a non-copyright paradigm.

However it does not mean that a non-copyright or at least copyright without much competitive deterrent would not thrive.

Indeed, the open source software industry is one huge example. RedHat, for example effectively does not deter competitors from making copies of their distribution and selling it. However they still make lot of money.

Arduino, an open source hardware platform, is another example. Chinese manufacturers copied their design, but the firm behind arduino still manages to sell a boatload of them.

The Internet has torn big chunks in this market and remaining players of old media seem determined to stop this even if it means killing the net.

Things haven't settled down and I don't think they will for a while...

Uh, print space ship, print fusion reactor,

No, if you can make anything, then everything would be free. Of course, states would be first in line for the omnipotent power, so things wouldn't necessarily be easy...

It would be an interesting world.

I suppose people could print some new planets if the earth got too crowded.

They could print willing slaves to serve them on their new planets.

The possibilities are rather extreme indeed.

Information would probably be nice to share but that could happen in an interplanetary fashion.

Of course, people would get bored and the only thing left to do would be for people to put themselves back into a very exact simulation of a world where they had challenges, limitations and ignorance. Indeed, they could temporarily program themselves to forget their omnipotence. Does this sound like a lot of religious beliefs?

One might even imagine that we, at present, are living out a life...

I still see no reason to treat software patents as a subset of patents that should be dealt with independently of the patent system as a whole. If we do away with software patents we should do away with ALL patents.

If we reform all patents, we should also reform software patents.

http://levine.sscnet.ucla.edu/general/intellectual/againstfi...

It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty. - Michelle Boldrin and David K. Levine in Against Intellectual Monopoly

For example, a linked lists are currently used in at least hundreds of thousands of applications. A razor blade can be used in what-- 100 different tools? Razor, paper cutter?

(But I do still think reforming the entire patent system, as you suggest, is a great idea.)

While I despise the concepts of owning an idea, owning the right to propagate an idea, and possessing control over the use of an idea, I cannot help admit their (mottled, provisional, and entirely realistic) use. Patent law should, undoubtedly, be reformed - limitations on what owning the idea means should be reworked. Just as, for instance, owning a piece of land doesn't mean you can do whatever you like with it, owning an idea should be similarly subject in order to benefit the intellectual community in whose landscape the idea sits.

Should we get rid of ALL patents? Yes - but not until we (being ironical here) get rid of all companies whose capital is founded on owning the ideas that make them money. In the case of software, however, there is right now an immediate dysfunction in patent law, made evident by the examples in the article, that should be immediately addressed.

Where is the evidence that patents benefit the intellectual community at large and increase the wealth of the people at large?

It is one thing to think that the patent system might benefit civilization as a whole, but it's a long jump to suggest that it should be implemented.

Moreover, the ownership of idea does not fit the logical justification for property rights of actual scarce resources such as land.

And furthermore, the very existence of Makerbot Industries and their cupcake CNC hardware as well arduino, and countless other open source hardware product directly clash with the notion of patent being necessary or needed to encourage the development of physical inventions. Here, in the present day, it can already be seen as a direct dysfunction.

That's not including the case against steam engine inventor James Watt, or agriculture flourishing without much patent protection(Breeders would sell new plant varieties to farmers, who then reproduce and resell the seeds on the market), as well as the fashion industry who thrives in the midst of copycats, and more.

"where is the evidence..." I was having this discussion with a friend of mine, an engineering PhD. At first, I took your side, and ideally, I still do. Don't get me wrong: I WANT a patentless world to work.

He put it like this: what do you do when you work for years on an idea, you finally get enough to publish, and to get your idea patented. You know that your career depends on your getting the "first stake" on this idea - others (who you can name) are working on the idea too. If you cannot patent it, then you cannot build the rest of your career on your having gotten there first.

Now I know, immediately, this notion sounded utterly evil to me. You SHOULDN'T, I protested, be able to found your career on having gotten there first. You should want to share your idea with all of those people who are also working on it - and afterall - isn't this how academic science moves forward?

Yes, he said, but still - if you cannot patent your idea, then somebody who ALREADY has the resources will snatch it up and use it to dominate the field BEFORE you can acquire the resources to do it youself. And so you end up just giving somebody an idea for free, and you get nothing in exchange for your years of work.

Ideologically, I am still rubbed the wrong way by this argument - on the other hand, what else is my friend the engineer supposed to do?

The benefit of patents is not to civilization as a whole - that is the problem with them - their benefits are local and incremental to individuals - and even that benefit is imperfect. The system requires reform - but I do not think we are ready for the system to be abolished.

The only patent holders large organisations fear are non-practicing entities (aka trolls) because anyone actually trying to build a product can be undermined in any one of a thousand ways.

Trouncing patents now would only give the already successful less to worry about, and would force the budding minds into the dirt.

I, for one, am so anti-capitalist that I don't use a single piece of proprietary software, and I own only what I can carry. I'm an idealist with the causes that I can control (personal use) - I'm a realist when I want to actually see change in the right direction (political voice).

I love open source software so much that I gladly stake my whole business model on it, to the point of wishing to experiment without the protection of copyright.

Those patent entrepreneurs wish to live in a world that would take my property right and freedom away in favor of their monopolistic business models.

This is liberty versus economic security.

I rather be a free dog who don't know what his next meal at, then an enslaved dog who get a small but a sure pittance.

And you're right, we must be somewhat disparate in our thought - If I were the architect of the world - I would have it that material property is the only sort that qualifies, and that nobody can make a living except by their work (or by the services they work to offer).

Assume that the absence of patents could send some would be lone inventors to poverty, while allowing the ideas they would have found to be found anyway. That's probably not OK for most people. However that's also a net benefit for society, and so is most probably OK. But "benefit for the society" is a vague and abstract notion. The "lone inventor" is something you can understand, feel, identify yourself with. I think a good argument against software patents would have to make people cry just as much.

This is assuming your competitors have the ability to predict which ideas in the pool of not-so great inventions idea that would have ultimately brought them nothing if they were to use it.

In business you relies on the ignorance of others to establish yourself, and your ability to predict which inventions will rake in the cash.

That is how entrepreneurship work.

In any case, you advocate the existence of patent system. It is your burden to prove it against the grain of established literatures.

I don't know you personally, but if you owned a business that had sunk $10M into developing that concept into something patentable, I doubt very much that you would be interested in sharing your idea freely with your competitors.

Furthermore, the reason behind patents is definitely that they will benefit society: it's just that the patent holder gets to benefit first

As for your argument in that post regarding Google, I would still say that even if a patent is non-frivolous, non-obvious, and innovative, it could still have a negative overall effect mostly because of the privileges that is afforded to inventors and innovators to silence the competition who may have come up with equally groundbreaking work.

Innovative, non-frivolous patents still poses a danger to the open source software industry, which does not relies on patents to make their money.

The patent system make us choose a kind of inventor and entrepreneur over the type that open up their secrecy to the world and become wealthy from it.

That's the choice we're making if we choose the patent system over the market solution of intentional openness.

http://www.nosoftwarepatents.com/en/m/dangers/investment.htm...