Patently Absurd - Copyright Law Can Meet the Needs of Software Developers

So DataTreasury fixed the way check clearing works, apparently pioneering a new digital approach instead of mailing around checks; implemented it; raised money and created 100 jobs; but couldn't get the banks to work with them. The banks then took the idea and implemented it themselves, driving DataTreasury out of business.<p>Now their investors are getting some money back by licensing the patents to the banks, so they'll (hopefully) be willing to invest in innovative startups that have to work with incumbents again.<p>Next time a small innovative company comes along, the banks are (hopefully) going to think twice before just deciding that they can easily re-implement their ideas.<p>This doesn't seem to me like a particularly good example of the patent system gone wrong. To me, this looks like exactly what the patent system is supposed to be: protection for those with innovative concepts, so that they can have the opportunity to commercialize their inventions without incumbents simply cloning their hard work.

This is a frighteningly naive article. Consider the following extract: "There are at least three reasons to exclude software from patentability. First, software development is an individual, creative activity, more akin to writing a novel than designing a jet engine...Second, software patents are especially prone to litigation...Finally, software patents are unnecessary because software is already eligible for copyright protection...As long as programmers write their own code from scratch, they can be confident they aren't infringing others' copyrights."<p>The idea that software development is the sole province of the lone inventor is both wrong and irrelevant. The reason that our constitution facilitated patents was nothing to do with how many people invented something but rather with encouraging disclosure of the result.<p>If we stipulate that software patents are frequently violated...so what? Without further analysis of why or whether specific improvements to the system would be helpful this is a dangling factoid - no more.<p>Finally, the idea that copyright provides any kind of protection for software is so ludicrous the writer's naivety is laid bare. Copyright protects only the expression of an idea. In the case of a work of art such as a novel or painting the expression is critical to the work and copyright is a valuable protection. But if a programmer sits with original source code before him and rewrites it in another language thereby benefiting enormously from the original work but changing the expression completely they may indeed be programmers writing "their own code" but it certainly isn't "from scratch", and whilst he is right that "they can be confident they aren't infringing others" it is blindingly obvious that they have copied. Copyright is worthless if the expression doesn't matter and all that matters is functional equivalence. And guess what, users don't give a rat's ass how a program is expressed so long as it works.

I agree with the article that broad patents are harmful - and if massive banks cannot get a fair outcome in the courts, what hope is there for the rest of us?<p>I also agree with the implication that patenting "specific techniques" is beneficial. The history of the industrial revolution is littered with such innovation. It's only correlation, but the places with patent laws also had the most vigorous innovation. At that time, the newspapers were filled with new innovations and inventions, and people seemed to be falling over each other to invent something new, and to patent it. <i>They</i> thought patents promoted innovation - and the drafters of the US constitution thought so too.<p>Personally, I would love to see new specific techniques being invented, rather than the next facebook, or the next webapp of something already done offline. The latter can be really useful and a great benefit to the world, but it doesn't stir my soul. I want new technology and entirely new ways of doing things! To make this more concrete:<p>- I would say that while Card Case's geofencing payments (<a href="http://news.ycombinator.com/item?id=3189438" rel="nofollow">http://news.ycombinator.com/item?id=3189438</a>) is a new and cool idea, it should <i>not</i> be patentable.<p>- I think that Ken Thompson's specific mechanism for rapid regexp matching should be patentable (<a href="http://www.cs.princeton.edu/courses/archive/spr09/cos333/beautiful.html" rel="nofollow">http://www.cs.princeton.edu/courses/archive/spr09/cos333/bea...</a>) The <i>idea</i> of using regexp for search was new and cool (actually groundbreaking), but it's only the <i>specific mechanism</i> that should be patentable. Which is what Ken did.

This is nice because the Republican Supreme Court justices voted 4-0-1 in favor of the maximum possible patenting of software in the Bilski case last year. Democrats were 4-0 against software patents.<p>Scalia was the one deciding vote and refused to join either side's opinion on the actual subject of software patents. His decision is tentative and equivocal on the subject of software and business method patents.<p>This article appears in the National Review, the thinkiest of the Republican news magazines. Perhaps it can help bring a little of the craziness among Republican judges back to reason on a subject central to our industry's future on these shores.

Nice article, but too bad you didn't bring up patent pledge: www.thepatentpledge.org

This is the kind of thing that both sides of the aisle should line up behind.

Great read and great points.