Shorten the patent term

Problem

A patent lasts for 20 years, beginning from the application's filing date. Often, the term is extended even longer to reflect the years it can take to obtain a patent. While 20 years might make sense when talking about inventions that take substantial investment—building factories and laboratories, for instance—software takes coders and computers. Hard work to be sure, but of a different type.

Solution

A patent covering software should survive for a term of five years, beginning from the date the application is filed. Even though international agreements could be read to require a 20-year term, we think there are ways around this. For example, it’s not clear those agreements even apply to software. Also, the proposal could be limited to U.S. inventors only.

Richard Stallman
Free Software Foundation
Boston
MA
United States
Posted Jun 21, 2012 9:53 am
  • Academic
  • Internet user
The WTO requires that patents last 20 years from date of application. To make software patents last a shorter time would require defying the WTO.

Defying the WTO would be a good thing, since it undermines democracy and needs to be abolished. However, I think it is better not to tie the solution of the software patent problem to the solution of the WTO problem.

The WTO does not require software to be covered by patents at all. Entirely abolishing software patents would therefore avoid this problem.

Politically we can get more support for abolishing software patents than for a partial solution, because all those in danger will support the abolition.

However, the US already has many patents that can be used to attack software and they are scheduled to last 20 years. Any change in the issuance of software patents would take 20 years to do the job.

I therefore recommend that we approach the problem at the other end, by legislating that software to run on general-purpose computing hardware be excluded from patent infringement.

This means we don't need to try to distinguish between software patents and other patents. We only need to distinguish between software and hardware.
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724 thumbs up.
Joshua Brown
Phunware
Santa Ana
CA
United States
Posted Jun 19, 2012 5:26 pm
  • Software developer / engineer
  • Internet user
Even 5 years is too long.
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673 thumbs up.
Daniel Cabanaw
Windsor
Canada
Posted Jun 20, 2012 10:34 am
  • Software developer / engineer
  • Internet user
When two developers can independently come up with a similar solution to a problem, it does not make sense to have software patents. They both were creative and innovative while trying to solve a problem. Just because one is able to file for a patent faster than the other does not invalidate their creativity and hard work.

Writing software is like writing a play. The script of the play (software) instructs the actors (computer) how to perform. Patenting a play would be silly. I believe the same is true for software.
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636 thumbs up.
Stephen Rynas
Morehead City, NC
United States
Posted Jun 19, 2012 7:28 pm
  • Internet user
Basically, ALL software uses the same code. It may be arranged differently and use different languages, but in the end they specify discrete tasks that ALL software has to use.
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601 thumbs up.
Erik Levin
Göteborg
Sweden
Posted Jun 20, 2012 1:40 pm
  • Software developer / engineer
  • Internet user
Unfortunately, I cannot sign this well-spirited petition, since even five years is way too long, the demand should be for 0 years. Software patents should be completely abolished. Any software patent is immensely harmful to innovation.
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599 thumbs up.
Steve Baker
Austin TX
TX
United States
Posted Jun 20, 2012 9:53 am
  • Patent owner
  • Software developer / engineer
  • Internet user
It would not be so bad if the inventor of the patent (or the company for which the inventor works) were to own the patent. The real evils start when patents can be bought and sold by companies who have no interest in using the technology - have no intention of ever making a product - and exist only to game the legal system for profit. This kind of behavior is abusive and does absolutely nothing to encourage innovation or to boost the nations bottom-line.

So, I would ban the buying and selling of patents - except by individuals to their employer. Licenses to USE the patent are OK - but not rights to sue for infringement...those rights would have to remain in the hands of the company or the individual who filed the patent in the first instance.
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586 thumbs up.
Don Montgomery
Method by Design
Scroggins
TX
United States
Posted Jun 20, 2012 12:56 pm
  • Academic
  • Patent owner
  • Software developer / engineer
I believe that computer programs claimed as stand-alone "inventions" (e.g., so-called "one-click ordering") are entitled to be afforded full copyright protections, since they are written works. Those with opposing viewpoints may eventually find themselves defending patents on innovative printouts of paper forms, even if used to facilitate the venerable mail-in order process. As a programmer, I would argue that software itself is a work of craft, beyond the extent that the term "craft" applies to legislative creation. As such, strong copyright statues offer the appropriate protection for software authorship.
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574 thumbs up.
Kent England
Oceanside
CA
United States
Posted Jun 20, 2012 4:26 pm
  • Software developer / engineer
Submarine patents lurk secretly in the system for many years as the trolls string out the application process. When they surface many years after submission, the damage is much more extensive. Software patents make no sense. It's like patenting sentences in a book. Not likely you could write a book without using a few phrases and short sentences that have been patented. "It was a dark and stormy night."
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560 thumbs up.
Brian Love
Santa Clara University School of Law
Santa Clara
CA
United States
Posted Sep 25, 2012 1:45 pm
  • Lawyer
  • Academic
An empirical study I conducted last year (draft paper available for download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917709) suggests that a term reduction across the board might be beneficial.

I find that all claims asserting the average product-company patent are resolved before the average NPE patent is asserted for the first time. Further, I find that NPEs are the dominate source of patent enforcement in the final few years of the patent term. NPEs, enforcers of just twenty percent of all studied patents, are responsible for more than two-thirds of all suits and over eighty percent of all patent claims litigated in the final three years of the patent term.

Of the NPE claims being litigated in the last three years of the asserted patent's term, almost 61% are software patents. Another 20% are also high-tech related.

These findings serious doubt on the utility of the last few years of the patent term.

Also, to avoid conflict with TRIPS, a de facto term reduction could be implemented by increasing the number and magnitude of maintenance fees due in the latter portion of the term. I also discuss this in the paper.
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558 thumbs up.
Cathal Mc Elhone
Ireland
Posted Jan 12, 2013 6:43 am
  • Software developer / engineer
Computer Science was invented by a mathematician.

A computer by it's very name computes maths.

All software can be reduced to maths.

You can't patent maths!!!
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542 thumbs up.

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James L
United States
Posted Mar 2, 2016 8:37 am
  • Software developer / engineer
  • Internet user
Patents are anti-competitive and slow progress and growth. Five years is better than twenty, but doesn't change the fact that patents for algorithms are bad for society. Actual practicing entities already have copyright protection, and as the saying goes, execution trumps strategy.

Would the world be a better place if TQP, or any single entity, got exclusive rights to the concept of public key encryption?
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71 thumbs up.
Bill Murphy
East Providence
RI
United States
Posted Aug 27, 2015 10:46 am
  • Academic
The Defend Innovation/EFF software patent policy is sound and I support it.
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130 thumbs up.
Matthew LaBianca
United States
Posted Mar 17, 2015 7:38 am
  • Academic
  • Software developer / engineer
  • Internet user
Software patents last way too long. It puts a halt in technological progress, making small companies suppress their ideas because of the fear of being sued. The USPTO should review these patents and give a patent of no longer than five years. Even five years is too long, though it’s a great start. Think back to twenty years ago. Where was technology? Flip phones were just becoming a big thing. Now, our phones are on our wrist, or even in our glasses. The point is, by twenty years, so many generations of technology comes out, that the renders the patented software useless. Another reason why it needs to be shortened is because What if a very important software patent is being held by a troll who is suppressing society from using it. This causes harm, and we may not even know it. Obviously, we can’t just strip people of their patent if they are 15 years in already, but for future patents we need to make a change. Those people or companies that are already 15 years in probably have patents that are not useful anymore, so they can be grandfathered into the system allowing them to hang on to their patent to keep it fair. This is the solution that needs to happen.
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218 thumbs up.
Dan Carr
United States
Posted Jan 27, 2015 2:52 pm
  • Software developer / engineer
  • Internet user
I don't think we should have software patents at all. In fact, I am thinking that very few things deserve to be patented anymore and that there should be a very high bar to being granted a patent. Unless something is truly revolutionary, it should not get a patent. Even if it is granted a patent I think 7 yrs max life. Anything more than that stifles competition and innovation.
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227 thumbs up.
Timothy Butterworth
Punxsutawney GNU Linux Advocates
Punxsutawney
PA
United States
Posted Dec 29, 2014 5:02 pm
  • Software developer / engineer
  • Internet user
The Patent System was created by the same group that once claimed the right to own human biengs as property. As they can no longer own people as private property they attempted to own their mind.

All technology starts with the basic science of being able to freely study, adapt and utilize everything a person comes in contact with. The patent system does nothing but remove the freedom to pursue knowledge and force the unwealthy into a state of legally mandated ignorace that they can not escape from.

The patent system as a whole needs to be abolished as a form of slavery!
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236 thumbs up.
Clayton Gillespie
Electra Logic
Vienna
VA
United States
Posted Nov 14, 2013 2:59 pm
  • Patent owner
  • Software developer / engineer
  • Internet user
I'd like to address some of the objections to software patents that have been raised in other comments here.

The SOFTWARE IS MATH objection:
The subject of every valod utility patent behaves in a way that serves some useful function. Because math is a discipline dedicated to rigorous description of structure and behavior, the technical aspects of the subject of every value utility patent can be described by mathematics. So, in this way of looking at things, every invention is math. Consequently, it is not reasonable to look at things that way if we are to provide collective incentives for the publication of technological know-how.

A similar objection is that software is abstract in the sense that it is not physical. Software designates a configuration of switches in a computer that causes the computer to behave in a desired way. A very similar statement can be made about every other kind of invention: in a clock, a configuration of gears that, by pushing against each other, switch positions in a regular way that allows a user to read the time; a gear is a configuration of molecules that are bound together to provide a degree of rigidity that permits each gear to push against others. Looking at configurations as being abstract in a way that excludes such inventions from being patentable is inconsistent with the social goals that we pursue by allowing inventions to be patented.

In addition, I'd like to say that the general tendency to reject "mathematical" inventions is incorrect. While I agree with the patent law that mathematical formulae should not be patentable, inventions that are described mathematically and for which the claims reflect the mathematical limitations should be preferred rather than rejected. Mathematical language provides rigor and precision in the disclosure, making the disclosure more valuable as a form of communication.

The SOFTWARE WILL BE DISCLOSED ANYWAY objection:
Many software applications, by their nature, will be disclosed, but not all. For example, the technical aspects of web services my be entirely hidden from their users. So, in at least some cases, valuable know-how may be hidden that would not be hidden if there were incentives to disclose the information.

The SOFTWARE GOES OBSOLETE QUICKLY objection:
There are many pieces of software that we all use on an everyday basis that are very old. These pieces of software are often so ubiquitous that we don't talk about them often - they are taken for granted. Examples are such things as data compression and simple communication protocols.

Also, as others have pointed out, if software goes obsolete quickly then the issue of patent term is moot.

CONCLUSION
So I don't agree that the term for software patents should be cut to 5 years. As many have noted elsewhere, 5 years is not enough time in many cases to receive adequate recovery of investment in research. Instead, I prefer proposals that concretely suggest methods that provide stricter observance of the non-obviousness requirement, and I prefer proposals that concretely suggest methods that privilege applications that are more communicative.
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442 thumbs up.
John Schroeder
United States
Posted Apr 8, 2013 1:42 am
  • Software developer / engineer
  • Internet user
I wanted to sign this petition, but after reading the comments and giving it some consideration... I just can't. It doesn't go far enough. Sure, it might help to lessen the problem of software patents, but it doesn't change the fact that fundamentally software has no business being patented. Copyrighted, sure - arguably copyrights can also be damaging to software development but I do think that in some cases they are necessary to protect an individual's or company's investment. The copyright system is also grossly need in need of reform but that is beyond the scope of this argument.

As well-intentioned as this petition may be and even though it may have the potential to greatly decrease the damage done by software patents it doesn't change the fundamental fact that software has no business being patented. Accepting these reforms is like acknowledging that software should be patented. It's like if Martin Luther King had accepted a Civil Rights Act that allowed African Americans to use white drinking fountains at night and sit at the front of the bus on weekends - it might have been an improvement on the current situation, but that would be akin to acknowledging that racial discrimination is okay.

When faced with an unjust system that needs to be abolished, it's not enough to just make it less abhorrent. You have to go all the way and actually abolish it.
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487 thumbs up.
Cathal Mc Elhone
Ireland
Posted Jan 12, 2013 6:43 am
  • Software developer / engineer
Computer Science was invented by a mathematician.

A computer by it's very name computes maths.

All software can be reduced to maths.

You can't patent maths!!!
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542 thumbs up.
Maarten Billemont
Gatineau
Canada
Posted Dec 19, 2012 6:58 pm
  • Software developer / engineer
  • Internet user
> These measures seem to be punitive towards software developers, as if their work is somehow less deserving of protection compared to others.

This has nothing to do with what a software developer's work deserves but everything to do with what kind of protection it needs and why.

> There is no reason why someone who works in software should only receive five years of protection, while others get 20.

There is plenty of reason. Foremost, nearly all software becomes obsolete long before the five years are even over. Effectively, such a long term grants patent owners a monopoly to solve a certain problem. Such a monopoly does exactly the opposite of what the patent system was created to protect.

> Considering it can take 3-4 years to get a patent, five years is too short.

Wrong. Considering it can take 3-4 years to get a patent, 2 years is too long. Ref. above where I explained how nearly all software becomes obsolete before its 5th birthday.

> Patents are necessary to protect software. Copyright is insufficient.
> Any developer knows that two pieces of software can perform
> essentially the same functionality while having drastically different code.
> As long as the two code bases were independently written there is no
> copyright infringement, even if one work is intentionally designed to
> replicate the functionality of another.

This is an invalid argument because it incorrectly presumes that patents exist simply to grant monopolies on solutions. Just because you solved a certain problem should not entitle you to a patent, and this is why: Patents were created to encourage innovators to invest time and resources in research and development. Without patents, such investments are too risky because as soon as the investment yields a product, competitors can copy the product and compete unfairly since they didn't incur the cost of research. In short, patents protect costly investment. They were never intended to protect products from being copied, that is simply a byproduct or essential ingredient for the relevant products. With the vision of why patents are needed in mind, it is easy to see how that vision is invalid for software: The production of software algorithms or implementations is rarely, if ever, expensive to research and develop. Software and algorithms are simply formulated solutions to problems. Comparing this to the innovation of, for instance, a system for enabling mobile communication through a cellular network of antennas and pretending that both are equally expensive to research and develop, and thus equally worth "protection by a patent" is ludicrous.

> The system is broken in many respects, but performing a scorched earth policy
> on the protections available to legitimate users of the patent system is not the way to go.

I believe it is vital for you to explain what you envision as "legitimate users of the patent system" and detail exactly why you believe these types of cases are deserving of protection under the patent system specifically.

> Instead, I would focus on:
> - stricter standards in issuing patents, particularly with respect to overcoming obviousness-type rejections

What is obvious to you is not necessarily obvious to a patent officer. Obviousness is very difficult to formulate in language and any attempt at doing so will inevitably be either very field-specific or riddled with holes. Most likely, both.

> - not limiting the sale or assignability of patents, but instead requiring proof of actual use of the invention by the plaintiff prior to the cause of action, thereby preventing someone from acquiring a patent for the purpose of suing

Software patents are generally trivial to implement and this measure would therefore generally be trivial to bypass.

> - simpler channels and reduced standards for invalidating a patent

I agree that it needs to be easier and more importantly, less expensive to research the validity of a patent in a legal frame. This is essential in thwarting FUD tactics used by most patent troll operations nowadays that effectively scare any potentially genius entrepreneur that does not have the financial backing to protect his ideas in a court of law away from even attempting to innovate.
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503 thumbs up.
Brian Love
Santa Clara University School of Law
Santa Clara
CA
United States
Posted Sep 25, 2012 2:58 pm
  • Lawyer
  • Academic
Another "solution" to consider: courts should simply apply novelty, nonobviousness, and enablement far more strictly than they presently do. The problem with software patents isn't that they exist per se, but rather that they exist *and* often appear to be overbroad and obvious (if not actually anticipated by prior code that no longer exists).

I discuss this topic and cite relevant articles in this new, short essay: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2102134

Michael Risch has probably written the most on this topic, starting with this paper: http://works.bepress.com/michael_risch/3/
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492 thumbs up.

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