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.

Terry Ackey
United States
Posted Jun 20, 2012 6:53 pm
  • Software developer / engineer
With the backlog at the U.S. Patent and Trademark Office, software patents can take 2 to 4 years to get granted. A 5-year lifespan measured from the filing date would be pointless.

The whole point of any patent system is to give an inventor a time-limited monopoly in exchange for teaching the public about her invention. If this time-limited monopoly is only one year long, most inventors would likely keep their inventions as trade secrets, taking these trade secrets to the grave with them. Don't count on them publishing their trade secrets out of the kindness of their hearts.
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526 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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501 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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490 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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485 thumbs up.
Barun S
India
Posted Sep 25, 2012 12:14 am
  • Internet user
The patenting system should be abolished, I think. If someone does something good, its better that others use that too. Small charges could be considered, but not utter prohibition of use or a fortune of money.
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463 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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440 thumbs up.
Mike Boucher
Dakota Legal Software, Inc.
Lafayette
CO
United States
Posted Sep 5, 2012 12:09 pm
  • Patent owner
  • Software developer / engineer
  • Internet user
  • Victim of patent troll
A fundamental problem with the entire patent system, not just software, is identified in the first sentence: "A patent lasts for 20 years, beginning from the application's filing date."

A patent is the currency that society uses for consideration on a contract with an inventor for access to an invention. Once you think about a patent as currency, the problem becomes apparent. Patents create an economy in which there is only one denomination of money printed. Everything is a $20 bill (20-year patent).

If someone has a patentable thing that is of low value, we as a society still pay $20 (a 20-year patent) to get it. Further, when someone comes along with an invention that satisfies the requirements for patentability, we as a society must buy it for full price.

It doesn't take an economist to figure out what happens next. As soon as I have something that can be patented, I should patent it immediately. It's foolish for me to put in the time to work out the bugs, identify and solve problems related to the invention, and so forth. I am not going to get paid more than $20 (20-year patent) anyway and the customer must buy it as soon as I fill out the right paperwork, so why not file the lowest-quality patent I can get away with?

Given the framing above, the right answer is clear: pay less for lower-value patents. There are patents that are worth the full $20, but many or most are not. There are many objectives measure of value, one of which I describe here.

When filing a patent, it must be enabled, which means that the inventor must tell how to practice the invention. A patent may be actually or constructively enabled. An invention that is actually enabled it actually built; a working invention is created and demonstrated. An invention that is constructively enabled is enabled by having the inventor describe how he would build the invention, but does not actually build the invention. Clearly, a constructively enabled patent has lower value than an actually enabled patent. Halve or quarter the length of a constructively enabled patent compared to an actually enabled patent. In the case of software, for example, a patent enabled only with flowcharts is worth 5 years (with additional deductions for other objective criteria of value) but a patent enabled with working software is worth full value.

Many people would say that constructively enabled patents should not be granted at all. This is wrong. A blueprint is a constructively enabled house. A house is an actually enabled house. The argument that constructively enabled patent should be be paid for at all is the argument that architects who produce nothing but blueprints should not be paid, but builders who use those blueprints to make houses should be paid. As I said, clearly wrong. Blueprints are worth less, but not worth zero.

The DefendInnovation.org proposal is to let software patents go for 5 years. This replaces an economy built solely on $20 bills with an economy built solely on $5 bills. That is clearly wrong. The incentive remains to patent cheap junk, except that instead of trying to put in less than $20 worth of effort, the incentive shifts to encouraging people to put in less than $5 worth of effort. The right answer is to print many denominations of currency and pay for patents what they are worth, up to a specified limit.
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410 thumbs up.
Sergey Babkin
United States
Posted Sep 11, 2012 11:25 am
  • Software developer / engineer
  • Internet user
Considering how long the patent process takes, 5 years from the application date is about the time you get the patent in the first place. It's way, way too short. 20 years sounds reasonable. Basically, if the argument is that everything changes too fast, and things become irrelevant in 5 years, then a longer patent span is not a problem: the patent will be irrelevant in 5 years anyway and nobody would infringe on it nor pay the licensing fees! In reality the inventions in the software area stay relevant much, much longer, and people who advocate shorter patent terms are unhappy about that.
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409 thumbs up.
John Risley
United States
Posted Jun 21, 2012 12:18 pm
  • Lawyer
  • 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. There is no reason why someone who works in software should only receive five years of protection, while others get 20. Considering it can take 3-4 years to get a patent, five years is too short.

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.

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. Instead, I would focus on:
- stricter standards in issuing patents, particularly with respect to overcoming obviousness-type rejections
- 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
- simpler channels and reduced standards for invalidating a patent

These are a few ways in which the frivolous suits, overlapping patents, and patent trolls can be kept out of the system, while still allowing legitimate uses of the patent system
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400 thumbs up.
Bill Jackson
United States
Posted Jun 21, 2012 12:16 pm
  • Software developer / engineer
  • Internet user
Software patents make no sense given the facts of personal computing and the Internet. Someone can make a piece of software, using his/her own coding techniques, to do a job s/he needs it to do, and be unaware of a patented piece of software doing a similar job which uses similar code. This should not be possible.

For software that can ONLY run on a specific piece of hardware and no other, this makes sense. It does NOT make sense in an environment where code can run on different hardware configurations.

End software patents now.
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394 thumbs up.

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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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557 thumbs up, including yours.
Barun S
India
Posted Sep 25, 2012 12:14 am
  • Internet user
The patenting system should be abolished, I think. If someone does something good, its better that others use that too. Small charges could be considered, but not utter prohibition of use or a fortune of money.
up
463 thumbs up.
Sergey Babkin
United States
Posted Sep 11, 2012 11:25 am
  • Software developer / engineer
  • Internet user
Considering how long the patent process takes, 5 years from the application date is about the time you get the patent in the first place. It's way, way too short. 20 years sounds reasonable. Basically, if the argument is that everything changes too fast, and things become irrelevant in 5 years, then a longer patent span is not a problem: the patent will be irrelevant in 5 years anyway and nobody would infringe on it nor pay the licensing fees! In reality the inventions in the software area stay relevant much, much longer, and people who advocate shorter patent terms are unhappy about that.
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409 thumbs up.
Steven Irrgang
Australia
Posted Sep 8, 2012 1:40 am
  • Patent owner
  • Software developer / engineer
  • Internet user
Patents currently take about five years to get granted. This would create a situation where patents would expire before they're granted. How does anyone avoid infringement then? Applications are published earlier but the granted claims are rarely as broad as those in the applications.

It's not creating new problems though, more highlighting the ridiculousness of the situation.
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393 thumbs up.
Mike Boucher
Dakota Legal Software, Inc.
Lafayette
CO
United States
Posted Sep 5, 2012 12:09 pm
  • Patent owner
  • Software developer / engineer
  • Internet user
  • Victim of patent troll
A fundamental problem with the entire patent system, not just software, is identified in the first sentence: "A patent lasts for 20 years, beginning from the application's filing date."

A patent is the currency that society uses for consideration on a contract with an inventor for access to an invention. Once you think about a patent as currency, the problem becomes apparent. Patents create an economy in which there is only one denomination of money printed. Everything is a $20 bill (20-year patent).

If someone has a patentable thing that is of low value, we as a society still pay $20 (a 20-year patent) to get it. Further, when someone comes along with an invention that satisfies the requirements for patentability, we as a society must buy it for full price.

It doesn't take an economist to figure out what happens next. As soon as I have something that can be patented, I should patent it immediately. It's foolish for me to put in the time to work out the bugs, identify and solve problems related to the invention, and so forth. I am not going to get paid more than $20 (20-year patent) anyway and the customer must buy it as soon as I fill out the right paperwork, so why not file the lowest-quality patent I can get away with?

Given the framing above, the right answer is clear: pay less for lower-value patents. There are patents that are worth the full $20, but many or most are not. There are many objectives measure of value, one of which I describe here.

When filing a patent, it must be enabled, which means that the inventor must tell how to practice the invention. A patent may be actually or constructively enabled. An invention that is actually enabled it actually built; a working invention is created and demonstrated. An invention that is constructively enabled is enabled by having the inventor describe how he would build the invention, but does not actually build the invention. Clearly, a constructively enabled patent has lower value than an actually enabled patent. Halve or quarter the length of a constructively enabled patent compared to an actually enabled patent. In the case of software, for example, a patent enabled only with flowcharts is worth 5 years (with additional deductions for other objective criteria of value) but a patent enabled with working software is worth full value.

Many people would say that constructively enabled patents should not be granted at all. This is wrong. A blueprint is a constructively enabled house. A house is an actually enabled house. The argument that constructively enabled patent should be be paid for at all is the argument that architects who produce nothing but blueprints should not be paid, but builders who use those blueprints to make houses should be paid. As I said, clearly wrong. Blueprints are worth less, but not worth zero.

The DefendInnovation.org proposal is to let software patents go for 5 years. This replaces an economy built solely on $20 bills with an economy built solely on $5 bills. That is clearly wrong. The incentive remains to patent cheap junk, except that instead of trying to put in less than $20 worth of effort, the incentive shifts to encouraging people to put in less than $5 worth of effort. The right answer is to print many denominations of currency and pay for patents what they are worth, up to a specified limit.
up
410 thumbs up.
Adrian S
United States
Posted Sep 5, 2012 7:42 am
  • Software developer / engineer
  • Internet user
I read about this petition on Groklaw, and quickly clicked over to sign it...then I read the first item on the list and had a facepalm moment. I cannot in good conscience sign this petition.

Shortening the period of protection for non-patentable subject matter from 20 years to 5 causes the actual problem to remain. Someone needs to make the argument (loudly and effectively) that software is not patentable because it's math. Always.

The people who make software will be unable to continue to do so without a crack legal team, their own (invalid, inappropriate) software patents, or deep pockets unless this change in understanding occurs.

Carried back in time, today's attitude towards patenting software being OK would have made most of the software created 30 years ago impossible.
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363 thumbs up.
Gavin Stokes
Los Angeles
CA
United States
Posted Sep 4, 2012 7:00 pm
  • Software developer / engineer
  • Internet user
Read Gottschalk v. Benson: http://en.wikipedia.org/wiki/Gottschalk_v._Benson

Software patents are supposed to be prohibited, but a ludicrous workaround has been allowed to stand for decades and must be abolished. The fact that you can patent the act of putting songs in a list tells everyone that our patent system is disgracefully broken.

The USPTO has become a tool for what it's supposed to prevent: the theft of people's work. Entities with money can bully innovators out of business with patents that should never have been issued. Until we unequivocally eliminate software, algorithm, and "business method" patents, hopes for innovation and entrepreneurship are dead.

Furthermore, the continued extortion of one company by another on the basis of these illegitimate patents has turned our already hollow economy into an even bigger and more-difficult-to-assess house of cards.
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359 thumbs up.
John M.
San Diego
CA
United States
Posted Aug 29, 2012 10:44 pm
  • Software developer / engineer
We must eliminate software patents. Period. They infringe on our liberty. We should be free as Americans to dream and then sit down and create anything we can imagine. Too many Americans have given their lives to provide our liberty, for an artificial monopoly to then limit that liberty to one person. In a world of 7 billion people, the chance of more than one person creating a similar software solution is absolutely certain, and even required at times to provide a consistent user experience that meets the expectations of software users. Absolutely no software developer wants software patents. We simply want the freedom to succeed on our own merits without the legalized extortion schemes being perpetrated by patent trolls who create nothing. Software is math, therefore software should be unpatentable. The whole scheme of when software installed on a hard drive changes the physical nature of the hard drive is absolute nonsense that defies all common sense, and the judges who accepted this absurdity should lose their jobs. Software patents make a mockery of real invention.
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349 thumbs up.
Ansis Māliņš
Pirate Party Latvia
Riga
Latvia
Posted Aug 2, 2012 7:26 am
  • Software developer / engineer
  • Internet user
Patents (including software patents) fail to accomplish their intended purpose - to protect the lone inventor from the big, bad corporation. It costs tens of thousands of dollars to obtain a patent (for each jurisdiction) - money that could have been spent on implementing the invention, money that many people don't have in the first place. On top of that, all startups risk being sued frivolously by large corporations for patent infringement, and it costs millions to defend. Again, money most people don't have. Thus a no patent system at all is better than the current situation. Inventions that take long time and a ton of money (e.g. fusion power, cure for AIDS) are funded by governments and don't need to be protected by patents.
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363 thumbs up.
Marcel Kolaja
Czech Pirate Party
Brno
Czech Republic
Posted Aug 2, 2012 6:21 am
  • Software developer / engineer
  • Internet user
  • Victim of patent troll
This initiative is apparently US centric, where this proposal is for shortening the patent term. However, there's not just the US. And in jurisdictions where software patents are not valid this proposal is a step in a very wrong direction.

Software patents have to be abolished. Please, ask for that and then we can sign it. This is unfortunately no way for us. Thanks!
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348 thumbs up.

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