Ken Arnold's Blog

Patentably idiotic

The Kodak v. Sun suit has gone against Sun. This is hard evidence that the software patent system is deeply broken. I know this isn't news; you probably already knew.

One approach is to think that software patents are just plain wrong. Maybe so, but this isn't obvious to me. Patents have protected other technologies, and they might be able to handle software. Software patents as currently done are broken, dangerous, and frankly f'ing insanse, but maybe it's fixable. Or at least we can lower the temperature of this hot tub in Hell.

Any mitigation must start with the basic problem of knowledge: Almost nobody with actual authority in software patents is competent to understand software. Patent examiners (I'm sorry to say) are not our best and brightest. The Patent Office doesn't pay enough to attract or keep top level folks. Juries (like the one in this case) are picked from the normal jury pool. Imagine trying to explain the difference between (say) virtual memory with paging vs. an on-chip CPU cache to mother. And then remember that your mother is smart enough to avoid jury duty. Not to mention that the judge is a lawyer, most of whom have only the most basic scientific training.

In short, everybody who has the power to make judgements is almost certainly unqualified to do so.

My favorite solution would be to fire all the examiners and replace them with 25 actual experts, and let them grant (say) 30 patents a year (with maybe a unanimous vote for adding more).

But we could also require that the "jury of peers" be peers of computer people. Those of us who are computer folks could join that jury pool and be exempt from other jury duty. Then maybe the jury deciding this kind of stuff might have a chance at having a clue. This would be especially good because patents are only supposed to cover thing not obvious to your average pracitioner in the field. Who better to judge besides a jury practiioners in the field?

We could also make software patent grants provisional for 6 months. They get published and the outside world has a chance to throw prior art at it to see if it sticks. A lot of companies would be highly motivated to try knocking patents down before they cause any damage. It would be a way of drafting highly competent technical folks from these companies into the process of weeding out the idiocies.

These are just some ideas, but it's a pretty depressing situation and we oughta do something...

Comments

• I think most agree, the patenting of concepts is a bad idea. The system was not designed to let you have both a patent and a trade secret. (on the implementation)

  If they can't be abolished all together, some reform is needed. Here are my three favorites:
  Reduced term: 17 years is an eternity in technology, 2 years would still provide ample market advantage.
  Peer review: post pending software patent applications, and allow the community to provide links to prior art.
  Free use: allow unlicensed use of patents in free (GPL) software projects.
  Europe is discovering much as the US did:
  Even if a law is bad both for a country, and to its people; as long as politicians are allowed to accept donations, big-business will be able to push them through.
  If anyone would say these changes would stifle innovation in software, I would argue the exact opposite is true.

  Posted by: cajo on October 07, 2004 at 12:37 PM

• I don't think Kodak realise what they've done and who they've annoyed here. Just yesterday someone asked me to recommend a digital camera and my reply was "don't buy a kodak." .

  IT workers are often the ones who recommend purchases on consumer electronics. And Kodak has just angered several million of them.

  Posted by: luggypm on October 08, 2004 at 01:05 AM

• I agree that the software patent process is broken.

  I won't buy anything from Kodak again either.

  Posted by: caroljmcdonald on October 08, 2004 at 07:44 AM

• patents , weapon of patent holder

  lay down arms , or it will be hurt everyone - no innovation from now on.
  YES, I talk with my wife about it, She hate the yellow (kokak) though like it ever.

  Posted by: pprun on October 08, 2004 at 08:11 AM

• I won't be buying any more Kodak portable cameras, or Kodak film in the near future.

  I do want to present a question for everyone: If you were to personally invest your entire life savings into building a new technology or software product, and spent thousands of hours designing, and building that investment, how would you protect it?

  Thanks,

  Aaron

  Posted by: aschiffman on October 08, 2004 at 01:01 PM

• I have a Kodak camera, and I would buy another. Kodak does actually make very good cameras.

  So they won a patent dispute with Sun. Sun is guilty of violating Kodak's patent. The sweet irony is that the decision came so shortly after Johnathan Schwartz's pro-patent rant on his weblog.

  Let's not be hypocritical about this. Sun has patents too, and would be just as willing to use them against competitors if the need arose. Sun is a large corporate entity, and so is Kodak. We are developers, using one company's tool. We are not on the Sun 'team' any more than Pepsi fans are on Pepsi's 'team'. We are consumers, customers, pure and simple.

  If you want to blame anyone, blame Sun's lawyers for not checking the patents and getting a license. Kodak isn't the bad guy here.
  

  Posted by: philwebster on October 09, 2004 at 02:29 AM

• What I actually object to is summed up in the sentence "Sun is guilty of violating Kodak's patent." I know more than I'd like to about this case, and Sun is not guilty. It took an extremely clever twist of truth to consider that patent to apply to anything in Java. And to take that twist requires that you accept that the patent convers many things which predate the patent.

  Normally, I am actually rather willing to assume that a jury who spent weeks or months on a case would know better than I. But as I said, this jury was made up of folks who were incapable to understand the distinctions involved -- it was a jury from the regular jury pool. It included folks like my Aunt who, bless her soul, can't figure out how a folder can be inside another folder on her desktop. She isn't stupid, she has a PhD in Linguistics and is a specialist in Vietnamese and Hmong, among other S.E.Asian languages. She just doesn't get this particular stuff.

  Whatever a jury decides in such a case is pretty random. So I give no particular credence to its judgement.

  That's the problem. If a jury of computer-literate types had made this decision I might be willing, without reference to the underlying patent, to believe them.

  But with reference to the underlying patent I cannot believe it would happen. By Kodak's argument, DNS would seem to violate their patent. And DNS predates them by a lot. So either their argument mis-states the patent or the patent is not valid.

  Kodak is a bad actor for using patents improperly. The patent system is broken, as their success demonstrates. Sun isn't the good guy, they are the current poster child for what is wrong with the software patent system.

  Posted by: arnold on October 09, 2004 at 07:38 AM

• Here in Brazil, everyone can copy anything without any punishment.. is another reality with another values.... and it is hard to agree too.

  That´s a fact: many people becomes Open Source contributors because they don´t believe anymore in the justice, they don´t believe their ideas can be protected against undue uses by third parts... And then, these people (including me) opt to show all their tricks without any expectation about profits ... they simply resign to get money for their knowledge...

  It is a complex issue - whithout a good law system, people just resign to have any comercial perspective ......
  

  Posted by: felipegaucho on October 09, 2004 at 08:51 AM

• It is very complex. This is why I don't say that software patents are necessarily bad, only that how they operate now doesn't work well. People do create certain things only when they feel that they can get rewarded.

  Posted by: arnold on October 09, 2004 at 09:03 AM

• 
  The notion of a patent isn't a bad one. The implementation we have is unsatisfactory.
  The system we have in place now puts thousands of patent applications in front of
  too few examiners with too little experience. So, after a, say, three year wait, patents
  are issued to applications so long as the application is not obviously detailing prior art.
  That's too long to wait for a bad decision that just ends up in court anyway.

  
  There needs to be more examiners. The prestige and pay for that position needs to be
  sufficiently high that those who might be good at the job would want it.
  Finally, companies need to determine if a patent is the right thing for a
  particular concept. The formula for Coca Cola is a "trade secret", well protected,
  and quite lucrative. If it was only the idea that was being protected then there
  might be an argument for reducing the number of applications overall.

  
  That said, there are ample reasons why a company might file patent applications
  that have nothing to do with the idea. Start-up companies try to generate patents
  because they know it helps their valuations. Management of larger companies look
  at this number to assess the efficacy of their advanced development groups. Given
  the poor performance of the USPTO, I think neither measurement is worthwhile.
  But, you know bean counters: they love their metrics whether they actually answer
  any questions or not.
  

  Posted by: bsandersen on October 09, 2004 at 09:24 PM

• Patent examiners (I'm sorry to say) are not our best and brightest. . Just a bit of trivia to add to the discussion. Albert Einstein was a patent clerk at the Swiss Patent Office at the time he was writing the Special Theory of Relativity. I am not an expert on patents or on the laws covering patents. The problem seems to me is our inability to define what constitutes value in today's networked world. Patents for a large part do work. The problems with sotware patents are symtomatic of much larger issues of itellectual property rights in the 21st century. I do not expect it to be solved soon. There is a lot of baggage (property rights for starters) to be worked through before things get better.

  Posted by: suhail on October 10, 2004 at 09:58 AM

• It looks fairly clear that prior art exists across all of the subject matter of these patents. Hell, CICS prior-arted the basics of it in the sixties. So the court case is a short-term anomaly. An informed legal system and patent office would be embarassed by it. By settling, Sun sidesteps further challenge until the patents are reviewed.

  Posted by: peterd on October 10, 2004 at 03:49 PM

• Putting aside the technical merits (or lack thereof) of the patents themselves, and the (in)justice of the whole fiasco, what I find interesting is - What have SUN bought for $92M?

  
  They have saved $1.09B * F(judge's wisdom, judge's impartiality, judge's constraints); A bankable proposition? Funded Kodak to persue other so called "infringers"; A bankable proposition?
  Legitimised all their customer's use of the technology (and at least increased the perception that other users of the technology are less legitimate). A bankable proposition?

  At first I thought SUN was a bunch of wimps for rolling over and not fighting the damages phase (if that is what its called?), but when I thought about it some more, it starts to look like money well spent.

  Posted by: brucechapman on October 10, 2004 at 05:31 PM

• Groklaw publised a response from Richard M. Stallman that explains why he thinks that patent reform is insufficient and that something more drastic is required.

  Posted by: mcrocker on October 25, 2004 at 09:25 AM

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