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Patents Software The Internet Idle

Ridiculous Software Patents: a Developer's Nemesis 173

Posted by samzenpus
from the there-are-no-new-ideas dept.
StormDriver writes "Have you ever thought about patenting a pop up note, an online poll, a leaderboard in an online game, or a system where you open apps by clicking icons? I have some bad news for you – it's impossible. Not because the claim is stupid, it's just that all of those things are already patented. And it's all fun and factoids, until one day you find yourself in the role of a software start-up."
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Ridiculous Software Patents: a Developer's Nemesis

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  • by Rogerborg (306625) on Tuesday March 29, 2011 @09:53AM (#35652982) Homepage

    Ask a lawyer if you should pay a lawyer to do something for you, and what do you think the answer will be?

    Be smart, just get on with it. Axiomatically, you'll only become a target for a lawsuit when you're already successful. You can pay a lawyer then, if you like.

    Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

    This isn't theoretical - I've already been though a few employers who were set up in exactly that way. One of them simply 'phoenixed' the liable part of the business overnight: rename it, put it into administration, start a new business with the old business' name, and "re-hire" all the employees. Only the company number changed. Apparently perfectly legal stuff, at least in the UK.

    • by Riceballsan (816702) on Tuesday March 29, 2011 @10:08AM (#35653176)
      Already succesful and fully profitable are 2 completely seperate things. It isn't unheard of for a software package to pick up enough of a following to draw the guns before making enough to simply pay off the authors past due mortgage payments, and even profitable dosn't mean a lawyer is going to do you much good. Lets say somehow microsoft had a patent for something blatently obvious that was used in a game that say made 100k in a year, after expenses cost of living etc, this start up has 25k left to pay a lawyer to deffend himself, from microsofts 2.5 million they decided would be worth investing into eliminating a threat before it was big enough to fight back.
    • by Kirth (183)

      Actually, he doesn't need a lawyer, he needs a new government.

      But yes, I would otherwise (apart from working to get a government which will abolish patents) ignore the whole "patents"-issue altogether and only worry when you're actually sued.

    • Re: (Score:3, Informative)

      by yeshuawatso (1774190) *

      This won't work in America due to piercing of the corporate vail. Moving your assets to a holder won't protect them, and moving debt to subsidiaries won't work either, as you're committing fraud. This is the EXACT same thing Author Anderson helped Enron with. Enron moved their debt and losses to special purpose entities (SPE) to boost the parent companies earnings and balance sheets. As a result of such shenanigans, corporations got stuck with complying with the million dollar a year law called Sarbanes-Oxl

      • veil, not vail.

        Also, depending on how your corporation is set up, it's possible that the only way to pierce the corporate veil is for payroll taxes. Anyone who signed paychecks could be held personally liable for those taxes, but anything else stops at the corporation. So if it's your company, your salary should equal whatever it takes to zero out your profit and loss after paying all your bills and then they can't come after that.
      • Hollywood would beg to differ with your assessment regarding the viability of this practice. There are in fact many ways to structure corporations to accomplish this goal. The fact that it is fraudulent doesn't seem to get in the way, as a matter of fact the movie studios now have the cooperation of DHS (ICE) based on this type of accounting to prove that they are losing billions to copyright infringers.
    • Well... Is better simply ignore all the stupid/nonsense patents, all of then. And if one lawyer try to enforce any of then, send back to the lawyer contractor the head of the lawyer.... Only the head.
    • Be smart, just get on with it. Axiomatically, you'll only become a target for a lawsuit when you're already successful. You can pay a lawyer then, if you like.

      Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

      These are needless kludges. Stuff like this shouldn't be necessary. All these measures are patches for working around a broken system. Is some kid right out of college expected to put development of his Awesome New Idea on hold until he can contract a patent attorney, an accountant and a legal aide so he can implement the most trivial and obvious of software patterns? Kiss the Mark Zuckerbergs and Sergey Brins of the world goodbye, they'll go off and innovate in areas *not* encumbered by such useless no

      • by Rakishi (759894)

        Stuff like this shouldn't be necessary. All these measures are patches for working around a broken system.

        That system is called western civilization. It shouldn't be necessary to do any work at all but have all of life's pleasures delivered for simply living but that's not reality either. Deal with it.

        Is some kid right out of college expected to put development of his Awesome New Idea on hold until he can contract a patent attorney, an accountant and a legal aide so he can implement the most trivial and obvious of software patterns?

        That advice has little to do with software patents honestly and is just good advice when setting up a business of any sort. Talk to an attorney and/or talk to an accountant. Do that a few times till you find one who isn't a lying worthless shit. Then do your own research. Then talk to them again.

        Life is full of co

        • by sjames (1099)

          That system is called western civilization. It shouldn't be necessary to do any work at all but have all of life's pleasures delivered for simply living but that's not reality either. Deal with it.

          So you advocate just letting things stay broken because they're broken? Lets break more stuff and we can be super civilized! A broken patent system is in no way intrinsic to civilization. It is entirely possible to have sane patent laws, a functional patent office, and a court system that works. We just don't happen to.

    • by Yvanhoe (564877)
      Or just live in Europe (no, UK isn't really there) and forget about software patents : they are illegal there and despite the EUPO giving them anyway for a fee, they have never been tested in court.
      Most of them are defensive patents for companies that wish to sell software in US or Japan.
    • Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

      This isn't theoretical - I've already been though a few employers who were set up in exactly that way. One of them simply 'phoenixed' the liable part of the business overnight: rename it, put it into administration, start a new business with the old business' name, and "re-hire" all the employees. Only the company number changed. Apparently perfectly legal stuff, at least in the UK.

      How do you get credit as a company with all liabilities and no assets?

      • by ghjm (8918)

        The company with the assets has a side business of extending credit to the company with the liabilities, at an extremely high interest rate.

        • That's not borrowing money. That's having access to the money you would already have if you were a single company. What happens if you need actual credit?

          • by ghjm (8918)

            You access it through the highly creditworthy asset-holding company.

    • by jbolden (176878) on Tuesday March 29, 2011 @11:49AM (#35654620) Homepage

      That's not so easy in the USA. US law has the notion of "shell corporation" and you can pierce the corporate veil to go after judgements. In fact setting up things this way allows the court to go after the owner's personal assets.

  • This is right. (Score:5, Insightful)

    by kurt555gs (309278) <kurt555gs@o v i .com> on Tuesday March 29, 2011 @09:57AM (#35653026) Homepage

    I date back to Z80 Assembly as the preferred programming method. I had developed some very interesting and unique things. I never thought of patenting them, and I shared them on bulletin boards and in print with joy.

    Now, with my many years of experience, because big business has laid lawyer minefields with software patents, I don't even think of publishing my own programs. When I do work, it's as a contract consultant to a giant company (who also has me tied up in 2" of contracts that I can never work for anyone else)

    I'm thinking my next venture will be a hot dog stand. A good hat dog is as illusive as it is tasty.

    Software patents serve no one but giant companies, and only to stifle innovation. Exactly the opposite of their stated purpose.

    • A good hat dog is as illusive as it is tasty.

      Yes, yes it is. And hard to find.

      • by gtall (79522)

        It isn't that hard, once you train them to stay on your head without squirming around and using their claws to stay on. I find the smaller breeds work best but then I do not live in a cold climate.

        • by Surt (22457)

          That's what declawing and sewing the feet together is for. You may want to hire a new haberdasher.

    • Re:This is right. (Score:5, Interesting)

      by pieterh (196118) on Tuesday March 29, 2011 @10:49AM (#35653734) Homepage

      "Software patents serve no one but giant companies, and only to stifle innovation. Exactly the opposite of their stated purpose."

      However, that was always their purpose. It's always been the largest firms (particularly IBM pre-2000 and Microsoft post-2000) that expanded patent law into software, and that bought the most patents. Small firms have never mixed innovation with patenting, it's contradictory. You can either hold patents and sue others, or you can make products and avoid patents. Trying both means you are sued systematically unless you are in a field with practically no patents, e.g. a technical patent on a fashion item like a shoe.

      Patents are inherently anti-competitive, this is well known in the patent industry, where people who actually make products and innovate are considered as a kind of food source for higher level patenting predators.

      In software, the food source seems endless, which is why no-one's worried. But in other industries, it's already tipped so far that basic research is throttled in the US, EU, and Japan, and other countries are easily taking a lead.

      All patents are bad, they all allow one entity to control the use of an idea in the market, they all act to restrict competition and they are all inherently anti-free market. There are no good patents.

    • by elrous0 (869638) *

      Sorry, Apple just patented hot dog stands. You'll have to go through them.

      • They'll take a 30% cut, will not allow you to use relish, and if any of your condiment dispensers make a farting noise, you will no longer be allowed to make hot dogs.

    • Now, with my many years of experience, because big business has laid lawyer minefields with software patents, I don't even think of publishing my own programs.

      Isn't that the opposite of what you should do? I would think you should publish everything to make sure there is a public record of the prior art, to make it harder for these asshats to get and keep bad patents.

    • by kurtmckee (870398) *

      > A good hat dog is as illusive as it is tasty.

      That's a fact [penny-arcade.com], but it can be a head cover or food, not both!

  • anyone can patent almost anything these days for a few thousand $$$. it's suing people who you think ripped off your patent is hard. takes lots of money and years of time

    just ask i4i, kodak, apple, oracle, google, MS and others. you need to pay lawyers almost 24/7 and have employees always available for discovery motions and depositions

    • by Barrinmw (1791848)
      Oh, but it easy to threaten a small startup with a suit because they violated your patent, they don't have the money to defend themselves in court.
      • It's the business equivalent of the RIAA's copyright lawsuits. Find 1,000 small businesses. Send them letters claiming that they are violating a patent that you hold the rights to. Demand $X payment or you will sue. Many businesses will get scared and pay up. The ones that don't you can either sue (in a different district than they are in so as to make it prohibitively expensive for them to defend themselves) or you can ignore. Use the money towards Threat Round 2 (and towards a new car for yourself).

  • I agree the patent system is broken, and in the computer world it needs to have significantly shorter terms. But it's worth noting that many concepts (and the methods for implementing them), which seem "obvious" today due to their ubiquity, may not have been so 10 or 20 years ago.

    Hell, many cultures never discovered the wheel, or would have developed much later if they hadn't been introduced to it by their neighbors.

    • I'm pretty sure there's a Civ4 analogy in here somewhere.
    • by Qzukk (229616)

      may not have been so 10 or 20 years ago.

      We've had the internet for over a decade now, and yet "ON TEH INTARWEBS!!1!" is still supposedly a novel and non-obvious way to do things.

      • may not have been so 10 or 20 years ago.

        We've had the internet for over a decade now, and yet "ON TEH INTARWEBS!!1!" is still supposedly a novel and non-obvious way to do things.

        It's like the old adage about how to read fortunes from fortune cookies. Except instead of the usual, you substitute "on the web" to get your patent.

      • Do you actually have an example where the differenciating aspect with regard to prior art is "on the internet"?

        I doubt that you will even find many examples that mention the internet in the independent claim, as that would be far too limiting. Only very inexperienced (and dumb for not getting help) applicants would possibly write a patent like that.

      • Patents are supposed to cover implementations, not ideas. If I patented, say, a glue that worked in space, or at the bottom of the ocean, it wouldn't be "obvious" just because it's glue.

        While the patent system is abused and some of the things "patented" are vague ideas that would apply to almost any implementation, there's no reason why a patent can't cover something which already exists in another environment.

      • by jbolden (176878)

        We've had the internet for almost 40 years now. And how to do things on the internet isn't always obvious.

    • by vlm (69642)

      Hell, many cultures never discovered the wheel, or would have developed much later if they hadn't been introduced to it by their neighbors.

      Group one's distant descendents should be paying group two's distant descendents for the patent rights to put wheels on their new space shuttle.

      • Group one's distant descendents should be paying group two's distant descendents for the patent rights to put wheels on their new space shuttle.

        Duh! That's why we're protecting ourselves by switching back to capsules that parachute down instead of land on wheels.

      • by pushing-robot (1037830) on Tuesday March 29, 2011 @11:11AM (#35654092)

        Fortunately, patent terms haven't ballooned the way copyright terms have. Patents now cover up to 20 years from the first filing date (which can be many years before the patent is ultimately issued). In most industries that's pretty reasonable, but in software 10-20 years can be an eternity.

        It seems like the best approach would be to change the patent term to whatever the length of a "generation" is for a particular industry, consulting experts in a given field to determine what that epoch may be. In automobiles, it might be twenty years. In software development, it might be two.

  • Not a european developer's nemesis. Because, software patents are not recognized there, due to higher level of common sense and less greedy control over society.

    this picture painted in your summary and the articles, is the picture of what american capitalism did to software. a feodal minefield in which you either work for a bully stronger than you, or dont work at all.
    • by lennier1 (264730)

      Nor exactly. With politicians in Europe being just as corrupt and/or gullible as in the US the possible introduction of software patents is always a constant threat as well. It's just a matter of when enough of the right hands have been greased.

    • by pak9rabid (1011935) on Tuesday March 29, 2011 @10:10AM (#35653208)
      Yeah, well, if you want to do any business in the US (which is a helluva market to just ignore), then yes it's even a European developer's nemesis.
    • by cpghost (719344)

      Not a European developer's nemesis...yet!

      There, fixed that for you.

    • by brit74 (831798)

      Not a european developer's nemesis. Because, software patents are not recognized there, due to higher level of common sense and less greedy control over society. "

      Wasn't gif under a patent in europe until 2004?

      "The US LZW patent expired on June 20, 2003.[21] The counterpart patents in the United Kingdom, France, Germany and Italy expired on June 18, 2004, the Japanese counterpart patents expired on June 20, 2004 and the counterpart Canadian patent expired on July 7, 2004."
      http://en.wikipedia.org/wiki/Graphi [wikipedia.org]

  • Programming is like composing music: you learn from the examples of others and you build upon it to improve the industry.

    Imagine if someone had patented the 4-chord progression used by most pop songs [youtube.com].

    Maybe that's a bad example. How about the standard blues form?

    • by mcmonkey (96054)

      "Just imagine a world, where Elvis couldn’t play due to Rock and Roll patent held by a guy called, Jackie Brenston."

      So what this guy is saying, patents on music would be a good thing.

      • by Tetsujin (103070)

        "Just imagine a world, where Elvis couldn’t play due to Rock and Roll patent held by a guy called, Jackie Brenston."

        So what this guy is saying, patents on music would be a good thing.

        No, no... He's just saying that Jackie Brenston is a terrible name for someone with a Rock and Roll patent.

    • by Noughmad (1044096)

      Imagine if someone had patented the 4-chord progression used by most pop songs [youtube.com].

      Thank you for the link, good sir or madam. You just made my year.

    • Imagine if someone had patented the 4-chord progression used by most pop songs [youtube.com].

      And that is precisely why stupidly long copyrights are...well....stupid.

      I've heard of people being sued for songs that "sounded like" some other song, using copyright. This proves it's actually the way the industry works.

  • This is more a rant than anything else. Read at your own risk.

    I recently ran across a startup called Monvee [monvee.com], they developed an application to "help people discover what is getting in the way of their spiritual growth and then craft a plan to address it". Whatever, not my cup of tea, until I saw the "Patent Pending" at the bottom of the website. Really, you're patenting a way to grow spiritually? A search of the USTPO database found their application, Method and system for virtual mentoring [uspto.gov]. From TFPA:

    The present disclosure is directed generally to a method of and system for virtual mentoring including in one embodiment, an internet based software and computer implemented system to assess, analyze, and provide individualized recommendations to a user to identify a specific attribute or skill to improve and recommend particularized actions and resources that are designed to help the user improve the identified skill.

    Not

    • by PPH (736903)

      This is just an example of a patent to 'do X using the Internet'. Where X is not an innovation and probably prior art.

      Its like the invention of the pickup truck. Or more like the idea of a pickup truck being placed into the public domain (much like the Internet was, patent free). The first farmer who said, "Gee. I can haul my corn to the market in this instead of a horse drawn wagon" would be on shakey ground trying to patent it. Particularly if the pickup truck's creator had envisioned a vehicle for hauli

    • Yes, yes... Patents are supposed to be "non-obvious", but that has no meaning at all. To prove that a patent is "non-obvious" to an individual skilled in the art patent examiners simply look at what's already patented. Why, if it's worthy of submitting a patent application, whomever came up with such an idea would have patented it already? Right? Wrong. Just because an idea "exists" doesn't mean the creator of the idea decided to patent it -- In fact, most ideas are not submitted for patent approval.

    • by lgw (121541)

      If "X" is something people have been doing forever, then

      • Do X on the internet was patented 10 years ago
      • Do X on a phone was patented 5 years ago
      • Do X in the cloud is patent pending

      Sad, but true.

  • by aaaaaaargh! (1150173) on Tuesday March 29, 2011 @11:12AM (#35654116)

    I hope I'm wrong but I find it entirely credible that in the not so near but also not too distant future writing programs -- be it for yourself, for OSS, or for small commerce -- will become an unlawful underground activity. All software and information will be controlled by a small group of huge stock enterprises, the sole survivors of the first international patent and copyright war. Unless they work for one of those giants, programmers will have to meet conspiratively in old cellars, private apartments, and unknown bars but often these meetings, which are only announced by mouth to mouth propaganda, will be interrupted and dispersed by violent police raids, often resulting in people getting killed, arrested, or being sued for statutory damages of 75 trillion dollar.

    Hopefully, if this is going to happen it will be a bit like Half Life 2 (except, perhaps, for the aliens).

  • That's why most of us just ignore them.
    • This is so sad. I thought patents were about more than simply the first time someone writes a subroutine. What is next? "Microsoft patents use of computer languages for writing programs" ? Wake me up, I am having a nightmare.

It appears that PL/I (and its dialects) is, or will be, the most widely used higher level language for systems programming. -- J. Sammet

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