Talk:Software patent

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Article title[edit]

In my perception, the designation "software patent" is informal. Yes, imho there must be a Wikipedia artice under that name, simply because this (informal) designation is widely used. But at the same time, due to its informal nature, there is no reason to attempt a definition. The scope of the issue is best defined as: what patent applications may be affected by the exclusion in art. 52 EPC? For America, this definition may not be satisfactory, but then again in American patent law, software patentability never was an issue, at least not under this name. The Americans rather objected the patentability of "mathematical algorithms" for several decades.

There is reason to argue that "software patent" is not just informal, but even incorrect terminology at an "ontological" level. Because patent law basically only covers "tricks", not the resulting realisations, conceivably a patent may be implementable both in hardware and software. Rbakels (talk) 13:05, 28 May 2009 (UTC)

new zealand[edit]

Should we make a section that describes patent law in New Zealand and how software patents are illegal there by a recent law passed. —Preceding unsigned comment added by 122589423KM (talkcontribs) 03:34, 28 July 2010 (UTC)

Can you provide a source? GDallimore (Talk) 10:46, 28 July 2010 (UTC)


citations http://www.itwire.com/it-policy-news/government-tech-policy/40451-new-zealand-says-no-to-software-patents http://www.geekosystem.com/new-zealand-bans-software-patents/ http://www.cpaglobal.com/newlegalreview/4617/south_pacific_cousins_part_way http://www.tgdaily.com/business-and-law-features/50667-new-zealand-bans-software-patents —Preceding unsigned comment added by 122589423KM (talkcontribs) 12:58, 29 July 2010 (UTC)

Patent for fun?[edit]

From the Why software patents are a joke, literally article by Ed Burnette, it says that: A former Sun/Oracle employee admits that developers created patents in a contest to see who could get the goofiest patent through the system. Now Oracle is using patents from the same folks as the basis for its lawsuit against Google. How much that the software patent has a "knee-jerking" history. Perhaps there is a need to address this. Komitsuki (talk) 20:07, 24 August 2010 (UTC)

Earl Killian has 26 software patents and he's up for deletion[edit]

I think (my POV) that software patents are important -- that a patent in and of itself constitutes a valid secondary source since it's validation by a second (impartial) entity -- a government agency charged with saying that a method or process is new. If you are a software writer, patent attorney, or work in the computer industry or otherwise have a view on this, I urge you to weigh in on the discussion of Wikipedia:Articles for deletion/Earl Killian‎.--Tomwsulcer (talk) 17:00, 27 November 2010 (UTC)

846 patents might be notable. 26 isn't. GDallimore (Talk) 18:05, 27 November 2010 (UTC)
Respectfully disagree. One software patent would be notable depending on what it did. Where did you get the figure 846 from? Are you joking?--Tomwsulcer (talk) 21:27, 27 November 2010 (UTC)
Did you bother following the link I've provided? And, yes, one patent on one worthwhile invention could make someone notable, but you've failed to provide any evidence that any of these inventions are worthwhile or notable. GDallimore (Talk) 20:49, 28 November 2010 (UTC)
Maybe you have a different perspective if you are, in fact, a patent attorney. Perhaps for you patents are like chocolate bars or dimestore candy. But for the rest of us, you know, everyday people, a patent is a big thing -- a new invention, a new capability or process or method which advances human capability, a marker deeming an invention worthy of legal protection by the government. If somebody has 26 patents, I respect that. I believe the computer industry has been evolving at such a frantic pace that none of us knows what this means yet, but perhaps we will in time. What I am claiming is that a patent is, in and of itself, notable. I'm only a handyman so I doubt I could explain what Killian's inventions do; but I bet there are people reading this, here on this page, who could explain what Killian's inventions are and why they're significant. I followed your link and I was enlightened about the inventors with hundreds of inventions, led by Thomas Edison; thank you for sharing this. I still believe patents are an excellent example of Wikipedia's secondary sources -- one step removed, with an impartial referee looking at primary materials (inventions) and making a judgment -- an analytical claim. So I think it's perfectly reasonable to include computer scientists with multiple patents in Wikipedia. One other thing about Killian -- with two others, he founds a company (QED) -- a few years later, it's valued at several billion dollars (according to NY Times) -- isn't that notable?--Tomwsulcer (talk) 23:15, 28 November 2010 (UTC)
This thread is getting rather off-topic from software patents, but I should note that patents aren't secondary sources by any means, nor are they necessarily a "big thing". At the risk of over generalizing: anything that's new can be patented, even if it's inefficient, impractical, or downright idiotic. Second, patents don't comment on the invention or the inventor, they are drafted by the inventor or their agents and largely edited by the same and so would be primary sources. VernoWhitney (talk) 16:06, 29 November 2010 (UTC)

Comparison to Copyright[edit]

@GDallimore, RE: (→Overlap with copyright: "very" limited protection? POV and not correct - it's just less protection than patents, but that point is already being made in a more neutral way in the rest of this section. Discuss before adding these materials back). I have 3 points I ask you to reply to:

1) Instead of wholesale deletion, may I suggest that you correct what you believe to be biased? For example omit the word "very", that would still be satisfactory to this contributor.

2) Under copyright law, when a work is modified to a sufficient degree, for example symbol renaming and flow change, please clarify if it is your belief that the original author will have little or no difficulty proving the derivative work was their own.

3) In the contributions I made, and points you feel were redundant, please cite where in the topic those points were already made (

a) comparison to other copyright; b) ease of obfuscation to circumvent copyright; 3) advantages if any that patents offer given #b; — Preceding unsigned comment added by Kensystem (talkcontribs) 01:18, 25 February 2011 (UTC)

1. I removed your edits sentence by sentence explaining why I thought they were appropriate. I could see nothing salvagable in them as they stood, but maybe some discussion here could lead to improvement before going back to amend the article. That is the typical approach to editing wikipedia see WP:BRD.
2. "symbol derivation and flow change" is a very specific example of how code can be modified in what is intentionally a generalised section and just looked entirely wrong as an addition to the article from a verbiage perspective. In any event, the onus is not on be to confirm my belief, but on you to provide reliable sources to back up your edits. Also, the difficulties of proving copyright infringement are general to copyright as a whole and need not be discussed in detail here. Finally, given that proving patent infringement can take a multi-million pound law-suit, I don't think it's fair to suggest that proving patent infringement is "easy".
3. From the article "[Copyright] allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted. // Patents, on the other hand, give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved." I think that says what you were trying to say in a more neutral manner.
a. There is no need to compare to "other" copyright. There is no difference in the way copyright protects one form of expression over another. And if there is, it does not appear to be relevant here. And even if it were, it would need a source, not just your opinion.
b. Even if it were particularly relevant to this article, it requires a source as discussed above.
I think that covers everything. The key thing is: don't just write stuff, find reliable sources relevant to the topic and add stuff based on those sources. GDallimore (Talk) 01:33, 25 February 2011 (UTC)


@GDallimore,

RE #2, If you feel it being a "specific example" warrants wholesale deletion from that section, then I ask you to a:: suggest where else in the Software Patents article to place the Copyright comparison, or b:: CHANGE the contribution to either show more generalized examples of how copyright can be circumvented or else add additional examples, so that the reader is certain to be aware of them.
RE #3, I respectfully disagree, nowhere in this article is it made clear that copying of source code then changing symbols and flow is one (possible of many) trivial and effective way to mask a plagiarism, and that this is a key reason inventors obtain software patents, and; b:: this section "comparison to copyrights" is appropriate to point out such a differentiation.
RE #3.a, Music, film and video, literature, software etc, are very different mediums, and each has very different means of expression by nature, and so the laws and tools for determining thresholds of copyright infringement differ: Authors of both Music and Software may desire to retain exclusive rights to their software, but the analysis to determine infringement/plagiarism are very, very different. Moreover modern obfuscation software make that analysis very difficult. See the 4th paragraph and points here: http://www.fair-opinion.com/Current%20Issues.shtml.

I also suggest that the inclusion of Music and other copyright expressions, is appropriate as it highlights to lay readers why Patents are generally applied to to technical creations, whereas Copyright may be sufficient for Music etc where non-specialist can determine if there is sufficient resemblance. — Preceding unsigned comment added by Kensystem (talkcontribs) 02:54, 25 February 2011 (UTC)

The link you provide is not to a reliable source, I'm afraid. GDallimore (Talk) 12:18, 25 February 2011 (UTC)
That link is a summary overview practical concerns of identifying plagiarism. Do you regard the following article, or prior case law withing it, as reliable references; and also that the general that software copyright infringement analysis is very different from other forms of expression, AND from patents)?:

http://www.ifosslr.org/ifosslr/article/download/30/54 pages 24-30 contains references to cases and also terms that address how software specifically is analyzed for copyright violation, and specific methods to determine to what degree "copied work" must be "substantially altered" before an infringer to claim separate authorship. Specifically:

Abstraction Filtration Comparison, Literal vs. Nonliteral Copying, Merger Exception. See also "Nimmer warns of the pitfalls in use of a 'look and feel' type of test"

Kensystem (talk) 16:06, 25 February 2011 (UTC)

This would make an excellent addition to an article about Copyright infringement of software, which needs a lot of work. But there's no mention of patents in that article, so no mention of how these trials and tribulations of copyright infringement relate to the corresponding issue of patent availability and infringement. GDallimore (Talk) 23:47, 25 February 2011 (UTC)
Perhaps Copyright infringement of software is one place for further elaboration, but since as you say it does not compare/contrast patents, and this article's Overlap with Copyright already does, I will suggest this location is most appropriate to list specific use-cases (libraries vs UI etc), case law, derived works, combination of user interface elements, and more general concerns and effects of Copyright's substantial modification limitation, obfuscation tools -- so that a reader can distinguish how patents and copyright differ in protection. To that end do you object to placing those points in this Overlap with Copyright section, or, to place it in a new section perhaps entitled Practical differences from copyright?

Kensystem (talk) 05:40, 26 February 2011 (UTC)

Yes, OVERLAP with patents. Since the source you cite doesn't mention patents, it can't comment on the overlap between the two forms of protection. I meant to add a link to that other article last night so that people can read more about copyright in software should they wish, but this article is primarily about patents, not copyright. GDallimore (Talk) 12:38, 26 February 2011 (UTC)
The source I cited makes clear through example and case law, the limits of copyrights. Currently there is NO MENTION that substantial similarity, and tools that facilitate overcoming it, are IMPORTANT considerations to authors when deciding how to protect their invention. Adding theses references provide literal examples to readers of where copyrights are limited.
Do you object to both, specific examples of copyright boundary, and to illustration of ways to overcome substantial similarity?

Kensystem (talk) 17:17, 26 February 2011 (UTC)

Using multiple accounts is liable to get you blocked from editing. GDallimore (Talk) 11:55, 1 March 2011 (UTC)
Hi GDallimore - What other account are you suggesting Kensystem is using? Also will you please reply to Kensystem's last question? Raymondjo (talk) 16:46, 3 March 2011 (UTC)
Stop protesting innocence. There is no answer to give to a question that doesn't make sense. Perhaps another editor would like to weigh in. GDallimore (Talk) 20:59, 3 March 2011 (UTC)

Every computer professional but only few patent attorney know that overlapping concurrent property rights are a threat to innovation. This is very clear since Samuelsonss Manifesto http://cseserv.engr.scu.edu/NQuinn/COEN288/Manifesto.pdf . If you read Kensystems sources in that light, no one needs to search for the literal words "patent" in these sources to reallize that these are examples for a concurrency that hurts. Swen (talk) 16:05, 4 March 2011 (UTC)

Ha! That just proves my point that the sourcing is inadequate. Swen reads them and sees an anti-patent message, but the edits in question were pro-patent (since copyright is inadequate). If two people are interpreting something in completely opposite ways, then better sources are clearly required. GDallimore (Talk) 16:50, 4 March 2011 (UTC)
Overlapping property rights occur all the time. For instance, both the translator and the original author have a copyright on a translated text. Trademarks may be protected both by copyright and trademark law. Having said that, "software patents" protect the underlying ideas and principles that are not protected by copyright in any jurisdiction.
Perhaps a more fundamental observation is that "software patents" is the name of a controversy more than a designation for a type of patents. Given that it is a controversy, non-neutral arguments are unavoidable, and the neutrality of the article is only achieved if the arguments pro and con a reasonably balanced. To start with, the very existence of swpats is questioned. For me, the practical defintion is: a software patent is a patent that passed the art. 52(2c+3) EPC test in Europe, or a patent that has something to do with software that passed the § 101 test in the US (and nobody knows what that test really is, now that the "machine or transformation" test has been rejected by the Supreme Court. — Preceding unsigned comment added by Rbakels (talkcontribs) 13:12, 23 July 2012 (UTC)

Yahoo patents could throw a monkey wrench into Facebook’s IPO hopes[edit]

http://venturebeat.com/2011/11/08/yahoo-facebook-patent-dispute/ Ottawahitech (talk) 00:47, 10 November 2011 (UTC)

Barnes & Noble Urges U.S. to Probe Microsoft on Patents[edit]

http://www.bloomberg.com/news/2011-11-08/barnes-noble-urges-u-s-regulators-to-probe-microsoft-on-mobile-patents.html

German software patents[edit]

There are many more software patent cases in Germany than tin the UK. Presently I do no have the time to write an article myself (and to risk that it will be removed because someone found "original research" or whatever). Rbakels (talk) 12:57, 23 July 2012 (UTC)

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Apparently that was a mismatch (bcbr != cbr), but I removed it anyway (404). –Be..anyone (talk) 03:18, 5 February 2014 (UTC)

Patent Commons[edit]

The hopeless Patent Commons stub needs a home, not necessarily here.removed twice from Software patentBe..anyone (talk) 03:18, 5 February 2014 (UTC)

Resolved: Redirected to Linux Foundation#Patent_Commons_Project some minutes ago. –Be..anyone (talk) 08:48, 30 March 2015 (UTC)

Mass peer review, patent bounty[edit]

Without a separate article on each of mass peer review and patent bounty, it is going to be very difficult to describe what Peer to Patent means relative to software patents, nor how the risk of software patent ambiguity and applicability is managed by real attorneys.

Do some web searches and you'll realize very quickly that these are very widely used terms and at least need to be redirects to whatever article. Neither term is going away and both are fundamental to modern software patent practice, and not only in the US. — Preceding unsigned comment added by 24.142.57.99 (talk) 21:04, 28 December 2014 (UTC)

"Successfully enforced" in Japan?[edit]

In the section on Japan, a purported example is given of a software patent that was successfully enforced. However, the enforcement was overturned on appeal. I would hardly call that a "successful" enforcement! Are there any other examples? Hairy Dude (talk) 23:54, 1 June 2015 (UTC)

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"The (Relatively) Easy Case for Patents on Inventions" - does not apply to software/method patents?[edit]

At Arrow information paradox (should that page and/or this paper and/or the other, be linked from this WP article, maybe in "See also" (or from similar articles and/or the debate-one?)?), I came across:

Cornell Law School professor Oskar Liivak has written in a paper for a conference at Stanford University that Arrow's "paper has been one of the foundational theoretical pillars of the incentive based theory of patents as Arrow’s work is thought to rule out a strictly market-based solution."

That paper is this one: "The (Relatively) Easy Case for Patents on Inventions"[1] that says:

"This article shows that, as to a market for technological ideas or information generally, those suspicions are likely correct, yet, the narrative introduced here focuses on something narrower: the voluntary market exchange of inventions. Inventions are special packages of information coupling technological and economic parameters into a modular thing that interfaces with the overall price system. This article shows that a patent system that supports such a market in inventions can be economically justified relatively unambiguously."

I still haven't read much further, just search for software patent, found noting except for software (only really this footnote): "14 See JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS 253 (1996) (describing support for the “current system” as “an article of religious faith”); see also BESSEN & MEURER, supra note 3 at 74(quoting James Boyle as discussing IP policy not on empirical evidence but instead on “faith-based” reasoning)." comp.arch (talk) 17:23, 13 January 2016 (UTC)

Search summary[edit]

When searched for in a Wikipedia search bar, the small blurb for this article reads "concept introduced to create an undue monopoly." Unsure where this content can be changed but I think it's clear it should be. 66.175.245.1 (talk) 16:29, 5 June 2018 (UTC)