Apple-Motorola Judge Questions Need for Software Patents

[Chupa Chupa]

So, what you are saying is, a federal judge doesn't have freedom of speech? The man is being interviewed and asked about his opinion. Is he not allowed to give it? It's not like he is motivating a ruling.

No. That's not what I said at all. At all. Just because one has freedom of speech doesn't mean it's always appropriate to use it. I never said or even implied Judge Posner didn't have a right to say what he said or that he should be disciplined for it. Don't put words in my mouth. Thanks.

You don't understand how our common law legal system works, do you? Judges create new law through precedent all the time. "Fair use" is itself a common law construction.

As it is, he is merely giving an opinion based on a pure economic analysis point of view: do the costs of software patent monopoly outweigh the benefits.

Well, your opinion notwithstanding, I must because I passed one of the harder state bars the first go around and have been practicing law w/o incident for over a decade. Odd though that you feel the need to attack my understanding of our legal system when I never even mentioned "the system."

But just to make it clear, out of court comments by judges are never considered common law or even dicta, so I don't know why in the heck you bring up common law. Also judges relying on common law to decide a case is not the same as legislating from the bench, if that is your point.

However, I'm not really sure what your point is other than to attack or to display your 1L skills because my comments were about Judge Posner talking about public policy that comes to his court regularly. Traditionally, it's not something federal judges do, especially in the appellate level.

 

[gnasher729]

The Judges are basically saying if someone invents a piece of software that is key to their making money, others can just go in and clone it and use it however cause they want all software patents to disappear.

These Judges just don't get it. It's a sad sad day when the legal system allows one party to steal and profit off the hard work of another party.

It's obvious that you don't make a living writing software. Software isn't "invented". There is tons and tons of very useful and very valuable software that isn't patented in any way. It is protected by copyright. You can't just "clone" it. Take Microsoft Office. Want to clone it? Well, hire a thousand well paid developers, and get them working for a few years.

 

[KnightWRX]

It's obvious that you don't make a living writing software. Software isn't "invented". There is tons and tons of very useful and very valuable software that isn't patented in any way. It is protected by copyright. You can't just "clone" it. Take Microsoft Office. Want to clone it? Well, hire a thousand well paid developers, and get them working for a few years.

That's the problem with trying to discuss isses of software development in the news section on Macrumors. A lot of consumers/non-developers that just don't get the realities behind actually getting an application from an idea to a realised, compiled binary shipped to customers.

 

[kdarling]

A lot of consumers/non-developers that just don't get the realities behind actually getting an application from an idea to a realised, compiled binary shipped to customers.

Which is also why so many users think that software should cost nothing, or almost nothing.

Ideas are cheap. Implementation is what costs.

 

[Mad-B-One]

It's obvious that you don't make a living writing software. Software isn't "invented". There is tons and tons of very useful and very valuable software that isn't patented in any way. It is protected by copyright. You can't just "clone" it. Take Microsoft Office. Want to clone it? Well, hire a thousand well paid developers, and get them working for a few years.

Hence my thought to go with copyright alltogether. The real problem with software patents is that it can get tricky where it shouldn't be: The lawsuit against Apple where they use hardware of a third party (I think it was BroadCom) which licensed the patents from Samsung which then sued Apple for using patented ways (software) to access that harware part - which you cannot use without "violating" their patent. That is rediculous. It's like saying I buy a car but for using the peddalshift on my steering wheel, I have to pay VW extra everytime I don't want to stay fully automatic. Another problem is that as a programer you don't actually know when you violate a patent. You have a specific problem at task - hence make code for it - and the way it will work can determine if you violate a patent. And if you then find out one way or another that indeed it violated a patent, you either have to find a way to not violate it or you (or your company) might have to take a cut in profits because you have to buy FRAND (if possible) etc. This puts programers at an impossible risk basically only letting big players survive on the long run.

 

[iMaven]

Software reverse engineering is illegal unless you use 'Clean Room Design' - which doesn't infringe on the software's copyrights or patents.

 

[BaldiMac]

OK, so now you have a patent, and let's say you find that Samsung is using the idea. Now what? Sue Samsung? Are you 100% certain that your own product doesn't violate any of Samsung's 50.000 patents? If yes, are you ready to spend hundreds of thousands on lawyers and years in court trying to prove it?

There are only two kinds of companies who can actually enforce their patents: big players, and patent trolls.

I can say from experience that you are wrong. Suing Samsung and letting your patent sit useless are not the only options. Actual innovative patents can actually be valuable. They are licensed among reasonable parties all of the time. Companies are willing to pay for access to them. Litigation is not the primary method of making money off a patent. It only seems that way if your main exposure to the patent system is reading inflammatory posts about contentious patent cases.

 

[Sackvillenb]

Patent law and litigation in the modern age has simply become a circus.

 

[JohnDoe98]

Reverse engineering is always lawful. There is nothing in the law against reverse engineering. Digital copyright protection methods ? Notice how the law doesn't say it is the reverse engineering that is wrong, it's the "circumvention".

Thus, writing DeCSS and figuring out CSS encryption on DVD is lawful. Distributing it and using with the intent of piracy isn't. Distributing it for interoperability purposes is.

Precisely (quoted with emphasis added since KnightWRX put the point very clearly).

Also, the illegality of the circumvention is very limited. I only pointed to one example of an exemption, but there are a ton more. Interested parties should see:

http://www.copyright.gov/fedreg/2011/76fr60398.pdf

 

[KnightWRX]

Software reverse engineering is illegal unless you use 'Clean Room Design' - which doesn't infringe on the software's copyrights or patents.

That's what reverse engineering is. Otherwise, you're simply infringing copyright by taking code from the original author (and the crime isn't "reverse engineering, it's copyright infringement).

Clean room Design doesn't prevent patent infringement though and you're wrong on that point, that's the whole issue with software patents. No matter how clean your solution is, you might still infringe the patent since you might be using the same idea or method used by the original author.

 

[sransari]

Hum... and I guess we've just been imagining all the patents getting invalidated by courts over obviousness and prior art ?

Mind explaning what you mean here in the context that the courts HAVE invalidated patents, so in no way does it seem they HAVE to respect them as you put it ?

----------

They have to respect them in an infringement suit. They're invalidated AFTER re-exam...but if they're currently valid, and someone sues for infringement, the presumption is that the patent is valid. Patents don't get invalidated as part of an infringement suit.

 

[KnightWRX]

They have to respect them in an infringement suit. They're invalidated AFTER re-exam...but if they're currently valid, and someone sues for infringement, the presumption is that the patent is valid. Patents don't get invalidated as part of an infringement suit.

Sure they do :

http://www.theverge.com/2012/7/4/3136922/apple-htc-uk-high-court-patents-invalid
http://www.bloomberg.com/news/2012-05-08/facebook-rival-s-patent-called-invalid-by-u-s-court.html
http://www.lmiplaw.com/patentlawupdates/71-us-supreme-court-holds-prometheus-patents-invalid-

Heck, even the ITC can find patents invalid and thus not respect them in their rulings :

http://www.appleinsider.com/article...ak_patent_invalid_in_suit_with_apple_rim.html

So again I put it, where did you come up with the notion that courts HAVE to respect patents ? Seems to me "The patent is invalid even though we would technically infringe it" is quite the legitimate defense used in many of these claims.

Are you really sure you've actually worked for the USPTO ?

 

[divinox]

for those thinking

deregulate software sure...

patents are evil only big pharma can have them

no one dies if software messes up

unless your software is running;

trafficlights
bank transfers
airplane autopilots
missile defense systems
lazer satellites
drones flying over the usa
machines that go Ping!

You remind me of this old fart who once, during a meeting of related sort, exclaimed: who could trust open source, really? Ignoring the fact that the vast majority of the whole web relies on exactly that.

 

[MagnusVonMagnum]

OMG! A judge with actual brains in his head? Now I KNOW the world must ending soon.

Here's hoping some judges will do what Congress has obviously been unwilling to do and kill the darn patent system that wreaks havoc on small businesses and individuals who cannot afford to fight large corporations in court even when they're 100% in the right. Large corporations are destroying this country and it seems like judges are the only ones left that aren't 100% (some still are due to party affiliation) in the pockets of said corporations.

 

[the8thark]

It's obvious that you don't make a living writing software. Software isn't "invented". There is tons and tons of very useful and very valuable software that isn't patented in any way. It is protected by copyright. You can't just "clone" it. Take Microsoft Office. Want to clone it? Well, hire a thousand well paid developers, and get them working for a few years.

Yep I don't write software for a living. Neither of us do (well I dunno if you do. How you speak does not sound like you do. And I will make an assumption about you just like you did about me) And yes copyright exists but as you say if you have enough people you can do it.

Hum, you obviously have no clue about software development. The "hard work" is making the actual software itself, not getting ideas and methods to do so. Copyright and trademark protects actual "clones" or "stealing", and trying to replicate software is actually hard work, thus you're not profiting from the hard work of others, you're doing hard work yourself.

So we both have no idea?
(We can both make assumptions about each other)

And there is a lot of hard work in coming up with ideas. Design, be it industrial or software or whatever is not easy. And the designers get paid big money for a reason. They do hard work. Yes replicating something takes hard work, but designing it takes hard work too.

So cloning something you're only doing half the hard work. The whole design process where you think of your own idea, is not done. Just steal someone else's idea.

For this reason I am all for software patents. Sure it allows a few patent trolls to exist. But overall it's better in my opinion. People should come up with their own ideas and market those.

 

[KnightWRX]

Yep I don't write software for a living. Neither of us do
[...]
So we both have no idea?

Except I do, and so does Gnasher.

Now, where is that foot you need removing from your mouth ? We're not making assumptions about you, it's plainly obvious by the way you describe the process that you've never dabbled in it. It's plain to me you don't understand how architecturing/building/shipping software works if you really think the hard part is coming up with the idea/method expressed in a patent.

Implementing a patent/cloning is just as hard as making things from scratch. Think of it like this : there's a reason there's no photoshop clone on the market that matches its feature set. Patents ain't it.

 

[kdarling]

And there is a lot of hard work in coming up with ideas.

Perhaps what you're missing is that ideas cannot be patented.

Only a new process implementing an idea can. (Simplification for now.)

So cloning something you're only doing half the hard work. The whole design process where you think of your own idea, is not done. Just steal someone else's idea.

In this case, as in many other software patents, the idea was the easy part. If you asked a child what a search box should do, they'd probably say "Search everywhere it can!" Well, duh. Not patentable. How about the method, then?

This patent's main claims are basically about giving a search string to a set of search modules, each specializing in a type of access (e.g. local contacts, local bookmarks, remote websites), which then give back responses.

To software developers, that's the very definition of object-oriented code and would be obvious as the basic method to employ.

A good patent should make an experienced developer go, "Gee, why didn't I think of that method!"... not "Yeah, so what's unique about that?"

For this reason I am all for software patents. Sure it allows a few patent trolls to exist. But overall it's better in my opinion. People should come up with their own ideas and market those.

Be careful what you wish for

If every UI developer for the past couple of decades had gone for simple patents like Apple did, you wouldn't even be able to own an iPhone right now. Almost everything that you think makes the iPhone unique, would be blocked from use.

 

[jamesnajera]

I do not agree with this judge. Apple did a lot of R&D for the products they are producing, and all the others are copying now. I think software patents do have a place in the legal system. However I am starting to wonder if the stuff Apple (along with others) has created should be forced to FRAND? I do not understand the FRAND requirements or what makes patents FRAND but I wonder if it is where software patents will head. Technology companies should and need to be rewarded for their hard work. To question the need for software patents, shows a lack of understanding and a lack of willing to think and deal with the problem. Just because this judge does not understand technology does not give him the right dismiss the patents that protect companies hard work and R&D.

 

[Oletros]

I do not agree with this judge. Apple did a lot of R&D for the products they are producing, and all the others are copying now. I think software patents do have a place in the legal system. However I am starting to wonder if the stuff Apple (along with others) has created should be forced to FRAND? I do not understand the FRAND requirements or what makes patents FRAND but I wonder if it is where software patents will head. Technology companies should and need to be rewarded for their hard work. To question the need for software patents, shows a lack of understanding and a lack of willing to think and deal with the problem. Just because this judge does not understand technology does not give him the right dismiss the patents that protect companies hard work and R&D.

Why he doesn't understand technology?

What are copying all the other companies?

 

[kdarling]

I do not agree with this judge. Apple did a lot of R&D for the products they are producing, and all the others are copying now.

You'll have to be a LOT more detailed than that. What do you think Apple did a a lot of R&D for, that is being copied?

I think software patents do have a place in the legal system. However I am starting to wonder if the stuff Apple (along with others) has created should be forced to FRAND? I do not understand the FRAND requirements or what makes patents FRAND but I wonder if it is where software patents will head.

FRAND is a fairly vague licensing agreement that companies enter into voluntarily, in order to share their IP to create a new standard.

Apple doesn't like to share, which is partly why we see all these lawsuits. Other companies generally compete without trying to stop the sale of their competitor's products.

However, you've hit on exactly what many people think: that software patents could exist IF they last a short time and/or are required to be licensed at a rate commensurate with the value of the feature in device.

To question the need for software patents, shows a lack of understanding and a lack of willing to think and deal with the problem. Just because this judge does not understand technology does not give him the right dismiss the patents that protect companies hard work and R&D.

This is not your normal judge. This judge is incredibly well respected. He understands economics and Intellectual Property more than almost any other. He has been called "the most cited legal scholar of this century".

He realizes, as most smart people do, that the public is harmed by petty claims over fairly obvious patents. As he put it recently, "You can't just assume that because someone has a patent, he has some deep moral right to exclude everyone else" from using the technology.

 

[jamesnajera]

You'll have to be a LOT more detailed than that. What do you think Apple did a a lot of R&D for, that is being copied?



FRAND is a fairly vague licensing agreement that companies enter into voluntarily, in order to share their IP to create a new standard.

Apple doesn't like to share, which is partly why we see all these lawsuits. Other companies generally compete without trying to stop the sale of their competitor's products.

However, you've hit on exactly what many people think: that software patents could exist IF they last a short time and/or are required to be licensed at a rate commensurate with the value of the feature in device.



This is not your normal judge. This judge is incredibly well respected. He understands economics and Intellectual Property more than almost any other. He has been called "the most cited legal scholar of this century".

He realizes, as most smart people do, that the public is harmed by petty claims over fairly obvious patents. As he put it recently, "You can't just assume that because someone has a patent, he has some deep moral right to exclude everyone else" from using the technology.

I think the slide to unlock is a example of thought and R&D that Apple put into the phone. The thing about Apple is they strive for intuitive and simple. However, I argue just because something is intuitive and simple does not mean it was easy to make it intuitive and simple. So when we saw the introduction of the iPhone in 2007, a lot of people thought when they saw it "of course, that's the way things should be/work", but the truth is that we had never seen something "real" like that before. Other examples, when scrolling up/down (not panning), the movement of the screen locks to prevent from moving left to right. That is a nice feature and does effect the interaction with a user in a positive way regardless if the user realizes that is happening or not. I argue that Apple put thought into that and should be rewarded for their effort. Other example, the spring bounce when scrolling to the bottom or the top, that is another well thought out responsive animation that is simple for the user to understand they are at the bottom or the top of the page they are scrolling. How about the way the keys react when typing on the screen keyboard for the iPhone. It is a very effective way to notify the user what keys they are typing.

These are examples of thought and R&D that went into a touch OS created by Apple. However, by achieving simplicity and intuitiveness, the natural reaction by other developers, and or competitors is to copy. Why would a competitor want to implement something else that is not up to par with whom they are competing? So if software implementation is deemed the best simple and intuitive way of doing a action then maybe it needs to be FRAND/licensed? Determining that is hard, but I think it is a step in the right direction. This type of thing will sure differentiate the leaders/innovators from the copiers.

Anyways, I wanted to be more specific, and I appreciate your comment above.

 

[Oletros]

I think the slide to unlock is a example of thought and R&D that Apple put into the phone. The thing about Apple is they strive for intuitive and simple. However, I argue just because something is intuitive and simple does not mean it was easy to make it intuitive and simple. So when we saw the introduction of the iPhone in 2007, a lot of people thought when they saw it "of course, that's the way things should be/work", but the truth is that we had never seen something "real" like that before.

You know that Apple slide to unlock patent has been invalidated in the UK for prior art, don't you?

 

[jamesnajera]

You know that Apple slide to unlock patent has been invalidated in the UK for prior art, don't you?

No, I did not know that. And if that is true, Apple does not deserve to have that as a patent. Keep in mind, I am not trying to argue that type of issue. My point is that I totally disagree with that judge, and think companies should be able to patent their unique software creations.

 

[KnightWRX]

No, I did not know that. And if that is true, Apple does not deserve to have that as a patent. Keep in mind, I am not trying to argue that type of issue. My point is that I totally disagree with that judge, and think companies should be able to patent their unique software creations.

Analysis: Neonode Patented Swipe-to-Unlock 3 Years Before Apple

The problem is that something like Slide to unlock isn't unique. We've been using it for centuries :

Suddenly applying to software is not unique, nor is it non-obvious. That's what patents should be : non-obvious. The thing with software though, and anyone that's ever sat in a programming class/gig knows is that if you present a problem to a room of programmers, there's a huge chance you'll get 50% of them giving the same solution. The problem in this case would be :

"We need an unlock mecanism for a touchscreen that should result in accidental unlocking but should require the user to remember any pre-defined patterns they can forget."

Slide-to-unlock would probably be that 50%.

That is why software patents are bad and what this judge is saying. Software is already protected from copying through Trademarks and Copyright, both of which will protect for one, your very own software and source code from being used without your approved permission, and for two, the general look and distinctive images used in your software from being re-used elsewhere.

Imagine if people had patented things pre-emptive multi-tasking, user switching, file system ACLs, and other general OS functions, or heck, just the concept of the OS ? The industry as we know it today would not exist and we'd be living in the dark ages. Software patents holds back progress rather than encouraging it. Software doesn't need such levels of protection, as the method/idea expressed in a patent is often times the easy part of making new software : writing the code, debugging it, testing it, distributing it and marketing it are the hard and long parts that will require tons of ressources with very varied skillsets.

 

[BaldiMac]

Analysis: Neonode Patented Swipe-to-Unlock 3 Years Before Apple

The problem is that something like Slide to unlock isn't unique. We've been using it for centuries :

Suddenly applying to software is not unique, nor is it non-obvious. That's what patents should be : non-obvious. The thing with software though, and anyone that's ever sat in a programming class/gig knows is that if you present a problem to a room of programmers, there's a huge chance you'll get 50% of them giving the same solution. The problem in this case would be :

"We need an unlock mecanism for a touchscreen that should result in accidental unlocking but should require the user to remember any pre-defined patterns they can forget."

Slide-to-unlock would probably be that 50%.

That is why software patents are bad and what this judge is saying. Software is already protected from copying through Trademarks and Copyright, both of which will protect for one, your very own software and source code from being used without your approved permission, and for two, the general look and distinctive images used in your software from being re-used elsewhere.

Imagine if people had patented things pre-emptive multi-tasking, user switching, file system ACLs, and other general OS functions, or heck, just the concept of the OS ? The industry as we know it today would not exist and we'd be living in the dark ages. Software patents holds back progress rather than encouraging it. Software doesn't need such levels of protection, as the method/idea expressed in a patent is often times the easy part of making new software : writing the code, debugging it, testing it, distributing it and marketing it are the hard and long parts that will require tons of ressources with very varied skillsets.

Again, it is disingenuous to argue the validity of a patent by it's title.