Software patents

In the wake of the IsNot patent brouhaha, aside from the “you are scum” comments, people have had several reasonable questions about my own feelings about the situation. So let me pause and talk about software patents for a moment. Lest there be any question about this, what follows are my own personal feelings about the matter and have nothing to do with official Micorosoft policy.

Personally, I don’t believe software patents are a good idea. I realize that algorithms lie in that grey area between a mechanical process (which is patentable) and an abstract idea (which is not), but at a purely practical level I think that software patents generally do much more harm than good. As such, I’d like to see them go away and the US patent office focus on more productive tasks. I have nothing but contempt for any company that tries to use patents to achieve what they could not through purely competitive means. This includes Microsoft, should they ever choose to do so or have they ever chosen to do so. (I’m not aware of any such situation, but I’m hardly omniscient.)

However, software patents do exist. So while the good fight goes on to get rid of them, I also believe that it would be dangerously naive to not play the game as best we can in the meantime in as principled a way as possible. There are a lot of people who would love nothing more than to just take a piece out of Microsoft either because they can or because they want to get rich and not for any better reason than that. I’ve been around long enough to see the kind of trouble that patents can cause us, and so I believe the best defense is a good offense. While I don’t believe in using patents in an unprovoked way, I do believe in having a robust patent arsenal with which to defend ourselves should someone get it in their head that they want to hold our products hostage for money or just to cause trouble.

One of the most unfortunate aspect of the software patent system is that there is a distinct advantage, should you have the money to do so, to try and patent everything under the sun in the hopes that something will stick. If someone has a patent on “a biological system used to aspirate oxygen gases to fuel biological processes” (i.e. lungs), I wouldn’t be surprised. (If there isn’t, no fair submitting the patent before me!) This is bad both because it jams up a system that’s not really equipped to handle software patents well in the first place and because it increases the likelihood of broad, random patents slipping through the system. Microsoft has been as much a victim of this as anyone else, and yet we’re right there in there with everyone else, playing the game. It’s become a Mexican standoff, and there’s no good way out at the moment short of a broad consensus to end the game at the legislative level.

So that’s how I feel about software patents in general. As far as the specific IsNot patent goes, I will say that at a personal level, I do not feel particularly proud of my involvement in the patent process in this case. Beyond that, there’s not much to say: many comments addressed legal questions which I am woefully unqualified to comment on and for which speculation would be very unwise on my part.

48 thoughts on “Software patents

  1. Pingback: AddressOf.com

  2. BillSaysThis

    Nice post, good of you to respond to the community. However, I wonder why, if you are not "proud of [your] involvement in the patent process in this case" you did not simply leave your name off the application?

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  3. Robert O'Callahan

    I’ve noticed that just about every non-lawyer involved in the production of software patents agrees that software patents are reprehensible but "the system" means they have to do these disgusting things. We all need to be diligent in shouting all the way up the management chain that "the system" needs to change and our companies need to be lobbying Congress to make that happen. Right now our the public faces of our companies continue to proclaim that patents are good, patents are a sign of innovation, and more and broader patents are better. We need to see shame and apologies instead.

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  4. Robert O'Callahan

    BTW I work in IBM Research, and I have a couple of software patents to my name that I’m ashamed of, although both of them are far deeper than this IsNot patent. And for years I’ve been shouting at anyone in the company who will listen that software patents are madness.

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  5. Bytter

    Paul, if you have the same attitude with your life as you do with this then it really sad… Software patents (abstract ideas) are the kind of subject that don’t need to be discussed or even argued about. There’s no pride to be taken in defending them… No argument that can excuse them. So, go ahead, shoot everything you can. Nobody with a little self-respect (genuine, at least) would ever care. Sure you guys can have your way; the law can even protect you. Though in the end, it’s just a matter of how well one can sleep at night with his own consciousness. And if you can’t understand something as simple as this, then it’s also just a waste of time showing why…

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  6. orlando.at

    Now, the BSA is lobbying to bring the same madness to Europe. No, its not that MS hast to play this game, it wants to, because the principle idea is to tag everything under the sun with a priceshield. Strange Days.
    I think its pure perversion. Everything we have comes from many sources. There is no genuine invention in reality – for example: Without the arabs we wouldnt even have numbers. Hell, next step is they license the numeric system, and we all have to pay… ;)]]>

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  7. -j

    a) it pays well
    b) big Tony told me I had to
    c) everyone else seems to be doing it. Which moral position is it that you’re taking? -j]]>

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  8. Dave Korn

    "in as principled a way as possible" You have utterly failed this test. Claiming what amounts to the standard C++ idiom for testing if two references are to the same object as your own invention is simply plain dishonesty, without any qualification or ambiguity. You may be obliged to give your firm any patentable IP you have, but, being unoriginal, this is not in fact patentable IP, and therefore you weren’t obliged to tell your firm to take out a patent on it. You have effectively mislead both your employers AND the USPTO, and if you ever attempt to stand up and defend this patent claim in court, and you say it is your own invention, you will be committing perjury, won’t you? " I do not feel particularly proud of my involvement in the patent process in this case. Beyond that, there’s not much to say." How about "I resign"? I fully accept that you are opposed to software patents on principle, but principles are worth nothing if you don’t ever exercise them. There are other employers in the world than MS, you know, and ones that might not try and oblige you to act hypocritically. You won’t starve, so stand up for your beliefs. ]]>

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  9. Angry

    MS, like others big-corp, want to be able to crush any potential concurrent, including Open Source but not only…
    The "Law" (existing, or requested…) is one of the numerous way to achieve it…
    But why gov people have so much interest in money ?? Have they forgot that they work for the people, not for a bunch of big CEOs ??
    —badly the answer is obvious too… Sad future…]]>

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  10. David Crocker

    Re the "isnot" patent, I too find it repugnant that MS is trying to patent fundamental programming operations. However, in this case there is some clear prior art as well. The Algol 68 language had an operator called "isnt" for exactly the same purpose, 37 years ago!

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  11. Luís Miguel Lourenço

    a) they’re afraid of the consequences
    b) the negative consequences of something are incredibly obvious Just because you have to think a little bit and realize the consequences aren’t as direct in one situation as the other doesn’t mean that it isn’t very unethical. It can have very real, negative consequences for a lot of people.]]>

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  12. Another slashdot joe sixpack

    http://www.advogato.org/article/101.html">Microsoft patents ASF media file format, stops reverse engineering</a> Welcome to the club of people who have nothing but contempt for Microsoft.]]>

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  13. Mr. Pissed Off

    Microsoft is certainly not fighting the good fight against software patents. At this very moment they are lobying and campaigning *for* software patents in Europe, going so far as to bully certain member states with the threat of job cuts. There is no way this can be described as defence. As the co inventor of the innovative isNot operator, and an employee of Microsoft, you have to take personal responsibility for fucking up our industry. Thank you very much.
    ]]>

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  14. Beady Eye

    Blogs are great. You just admited in public that your employer Microsoft Corp makes you do work you’re ashamed of. Obviously the stock options are worth more than your principles. You’re not the only one, but hey, it’s still kinda funny to watch you squirm in public with your own concience.
    Good luck! ]]>

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  15. Patent NotIs quickly!!!!

    Programming operators and constructs should never be patentable, they are the "palette" which allows people to easily explore in their creativity. Which as you well know, in turn provides us with software to aid us, entertain us or to allow our knowledge to proliferate. Such operators are akin to fundementals in language – like punctuation, or operators in Mathematics like "+". You should be ashamed in your attempt to "censor" the exposure of such an operator via a patent. I was interested in your comments, but they just beg the question what price your principles, Paul?

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  16. David

    If a patent does have clear prior art, or other validity issues, it would never be asserted because it wouldn’t be worth the money it would take to try when obvious defeat is the only possible outcome.
    I make no comment on the IsNot operator patent, as I haven’t read the claims and can’t say how broad or narrow it is and I am not familiar with the prior art. Instead I speak generally about the mis-information about the patent system that is rampant. I agree with a previous poster that you should disclose all prior art to your patent agent/attorney but not because they don’t want to hear it. They do want to hear it. Why apply for a patent that won’t be worth anything because you can’t assert it? It would just waste the company’s money that could be spent on other projects. Last, but certainly not least, this is an APPLICATION for a patent. The patent office hasn’t even looked at it. Someone wrote the application, then paid some money, and now it sits there without any review for the 4 or 5 years it will take to work its way to the top. Why create so much fuss about something that is likely to change quite a bit before it issues? I recommend that anyone who really wants to understand the issues get at least a basic understanding of what a patent is and how they are granted and litigated. I suggest reading Patent Law Essentials by Alan Durham. A kind of expensive book, but the most readable introduction t the topic I have seen and very accessible to the non-lawyer. I even understood most of it.]]>

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  17. Dave Korn

    "I suggest reading Patent Law Essentials by Alan Durham. A kind of expensive book, but the most readable introduction t the topic I have seen and very accessible to the non-lawyer. I even understood most of it." I’m very pleased for you. Then you will have understood, won’t you, that the patent *stands* until it is overturned in court; that the patent holder will be able to have anyone accused of infringement *injuncted* from carrying out their business until the case has been taken to court and resolved, and the patent either overturned or not. In short, the patent is pre-emptive, and it reverses the burden of proof: the defendant has to prove their innocence by showing that there is prior art or some other reason that invalidates the patent, rather than the plaintiff having to prove the defendant guilty beyond reasonable doubt by producing evidence. M$ takes out a patent that it knows is invalid, but it does so because it knows it can obstruct the course of justice with impunity. That’s why people kick up a fuss: because it’s an abuse of power that threatens our human rights. In a democracy, no corporation should be able to make up its own rules as it goes along and then abuse the state’s justice system to have those rules imposed on innocent citizens. ]]>

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  18. Marcel Bos

    As I see it – programming code is like lyrics & poetry;
    patenting something is like ripping out code from a dictionary, you first patent a language and then from the language you patent (again) the modes and the happendings. Its certanly so that one shall be acknowleged as a conststructor for the work one have done with respect and joy for life and what fellows around like or not. But the code one does is like poetry; some how people shall be able to run the work one have done. At the same time as computer age change the abstraction on economy. The battle field is the following.. If I make a patent on a loop: (this is evil) then the rest of the population must pay ME and not the constructor of the LANGUAGE?! biljon box because i happend to write in computer language a sort rotine. as I see it the dession makers has to learn programming to understand what they rule on.
    It would be like erasing woxxx out of this text because it would xxx to much xxx write
    ]]>

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