Ask HN: Why Are Software Patents So Awful?

There are a few sides to the story, you are viewing this as a software developer, as you mentioned. You need to put on a different hat, and then decide it patents are valuable, where, and why. As much as there are horribly abused software patents, I assume the same of other patents types as well.

A patent is intended to protect an invention. In most cases, that means the intention is for the benefit of a business, even though the patent itself is awarded to individuals.

If you ask me as a software engineer, how I feel about patents, I'll say I don't like them. I don't like having to be concerned that the way I implement a certain feature could be limited because somebody else came to the same or similar solution as I did.

As a business owner, ask me how I feel about patents, and now the line gets a bit blurrier. I don't like that somebody can sue me for a product I created and am selling, but I do like that I can protect something I created from being nocked off and copied.

We're currently building a sleep-tech hardware product (it's pretty cool https://soundmind.co) and in an industrial design meeting, it was suggested that we get our hands on a similar product in the market so we can reverse engineer it. Me and my co-founder both hated that idea. We already have a unique take on the market, and our own method of doing things which we feel is a better way. But apparently, there are many people who think it is just fine to take a product, figure out how to copy it, and do that and try to sell it.

This can happen in software or in hardware. Why should it be any different from one to the other?

Now the other challenge comes in when you have examples like the x-plane given by @taf2 in the comments, or Amazon's one-click patent. These should have been obvious to the patent office that the inventions either already existed or were obvious, and should not have been given protection in the first place.

I hope you are able to disrupt the current state of patents for software as it could be valuable if handled properly. But I wouldn't go around asking software engineers what they would like in a patent protection service, you need to speak to business owners.

Thanks much for your reply. Turing’s application of Godel merely says that there are some calculations a computer can’t do. There are still a finite number of instructions that are unique and would reasonably pass muster under our patent laws. If you’d like to further clarify, I’d love to hear it.

I laid out the issues for the patent system in my other responses, and perhaps you’re right that it’s hard to search and find a series of instructions, aka software, but you should know that software patents are examined entirely the same as other patents.

I haven’t seen an analysis that 90% or some other high percentage of software patents shouldn’t have been allowed. Remember that you can include any description in the specification and abstract, including the whole encyclopedia if you want, but that doesn’t define the invention. The invention is defined by the legal description in the claim language – it’s a boundary for what is actually new, and every single word of it must be found in a product for it to infringe.

The claim is synonymous with the invention in the case law, which is why it’s not recommended to use the word “invention” in the specification, so it’s not used to narrow the claim interpretation in the court’s Markman (claim construction) proceedings during the suit.

Believe me, if someone could do an actual assessment of allowed patents (notably the claims) and show that they never should have been issued, I’d love to see it. As an FYI, from time to time in representing defendants we’re approached by professors etc. who’d like to share prior art and be retained as experts. But aside some from studies here and there which are generally marketing hype ramping off the thought that all software patents are bad, I haven’t seen it.

Thanks so much for bringing this to my attention. I took a quick look at the litigation docket for this case, which was consolidated with actions against a number of other defendants too. This was in the Eastern District of Texas, considered to be plaintiff friendly, which I’m quite familiar with.

The defendants used the USPTO’s relatively new (at that time) Inter Partes Review (IPR) procedure in order to try to invalidate the claims (alleged to be infringed) before the USPTO’s Patent Trial and Appeal Board (PTAB). When the IPR was filed, as is customary, they requested a stay (temporary stop) of the court proceedings, in order to try the IPR before the PTAB. The strategy worked, because the claims alleged to be infringed were invalidated by the USPTO’s PTAB, but 2 claims (claims 21, 22) apparently survived the IPR. After the IPR, the case was continued in Texas, again as is customary.

Unfortunately for Uniloc and fortunately for the defendants, Uniloc hadn’t alleged infringement of these claims, so it tried to do so after the IPR. The court found this was too late, and dismissed with prejudice. It does not look like Uniloc got any money from Laminar Research or a number of these other defendants. However, I agree that it was apparently a waste of time for the parties involved, and likely cost Laminar some real legal fees.

The whole thing seems irrational to me because patent troll cases like this should settle early.

I will have to provide some guidelines here for startups dealing with patent trolls. That’s if you and others on HN are okay with it, i.e., to educate versus being promotional.

Thanks much for your insight, pedalpete. I found your comments helpful and insightful on a number of different levels.

Regarding reverse engineering, while I don’t know the particulars from the legal perspective it’s fine and done quite often. In truth, the fact that reverse engineering is completely acceptable is one of the reasons to consider patenting. You may also consider getting an FTO (freedom to operate) to provide at least a reasonable likelihood the end product won’t be infringing.

I provided some thoughts to taf2 below you may consider taking a look at as well.

Thanks much for your clarification.

Regarding whether there are multiple patents issued on the MRI –

(1) Assuming that the algorithmic steps work properly (i.e., without typos and the like) . . . Please see my explanation about patent claims in other discussions. The claim of a patent puts a box around the uniqueness of an invention. Ideally, it’s supposed to be as broad as possible without being so broad that it’s anticipated or rendered obvious by what is already known (prior art). The patent claim and algorithmic steps are not synonymous. It’s possible that the first step of a claim incorporates hundreds of algorithmic steps, and the second step of the same claim incorporates hundreds of other algorithmic steps. (Those steps would be described in a broad or exact fashion in the specification.)

The way the patent system works, while it’s possible that many patents try to claim the same thing (different patents by different inventors), the patent is supposed to be awarded only to the first one that was filed.

Since today patent applications are published approximately 18 months from their filing publications (and could be prior art), in the U.S. and in most other systems, the system doesn’t really work for filings within that 18-month period. That’s because for the patent application being examined, there’s an 18-month gap of filed applications that can’t be used; and there’s even an exception to this if the prior art application is filed first and later publishes (secret prior art under 35 USC 102(e)).

Technically, the examiner should have access to secret prior art (non-published applications) if they’re published under 102(e), but you can see that there’s no way for the applicant to have known that before their filing.

Plus what happens if the secret prior art that hasn’t published (and isn’t really prior art) issues as a patent after the applicant’s patent issues as a patent? Now you may have two people patenting the same invention, and they may invoke what’s called an interference proceeding before the USPTO, to see who wins.

There’s lots more. But without writing a novel and giving everyone here a headache, let me add that what is prior art is legislated (which means lobbying has a lot to do with it) and not based on logic, and that the America Invents Act (AIA) that was supposed to tame abuses and clean up the system was more of a monkey wrench thrown at the patent machine.

Because of the complexities of a legislated system, there are many instances where the problems you’ve outlined could apply. But I haven’t seen anything other than anecdotal evidence to support there’s a high rate of patents that shouldn’t have been issued. The elephant in the room however is there isn’t an easy way for an examiner to search prior art that’s doesn’t constitute patents.

(2) If Assuming that the algorithmic steps do not work properly (i.e., without typos and the like) . . . Here we have the additional issue that they written description may not support the invention and/or they may not enable the POSITA to make and use the invention. That’s under 35 USC Sec. 112 (a), which pre-AIA was 112, first paragraph.

I’m mindful of Church’s lambda calculus and Turing’s solutions and halting theorem, but it’s not really applicable generally except under Sec. 112 here, and likely not really applicable. We don’t require a complete axiomatic set or proof that every single series of algorithmic steps results in a defined solution of a computer. Applications that broad would likely invalidate the entire patent system – and I’m sure many would love that :)

Also, about the good versus bad issue for the MRI you mention, I defer you to my long response to orangecat2, specifically about novelty under Sec. 102, nonobviousness under 103 and POSITA.

Let me add that we are supposed to handle these matters objectively, and the USPTO was applying a motivation test for combining references; this is a test developed over 50 years by the Federal Circuit and applied by the USPTO, and it was injured by the Supreme Court’s KSR International case. The USPTO is still walking it back as much as they can, so as not to make the examination system so arbitrary.

If you think about it, along comes technology and the Internet age, and now we’re dealing with application of a generic computer program to things that were done manually earlier. (Business method patents are in this lot.)

Many a patent troll has used these kinds of patents against smaller businesses and startups who feel wronged. And there are many on both sides of the issue, but you already know where most technologists stand, and some of the abuses out there are simply not acceptable.

The Supreme Court’s Alice decision tried to resolve at least part of this issue by saying that if something that’s well known, and has been performed manually is now done by a generic computer (i.e., for example a pc using a Windows operating system) running a program, the simple act of using the computer does not make it patentable subject matter.

There’s a lot of truth to this simple statement; the issues is that the Sup Ct is now using subject matter eligibility (under Sec. 101) versus patentability (under Secs. 102, 103) which has lots of bad repercussions for the patent system; not to mention that there’s a lot of dicta (legal prose) that litigators can use as they deem fit, to convince a federal judge who may not have any background in tech, like our dear Sup Ct.