Thats not the only thing, no? Doesn't it also prevent e.g. other people/company from including that feature in their own programming language that doesn't use Swift at all?
By patenting this language feature Apple has very clearly stated that they are "making a claim of ownership" as it were of this feature across all languages and non-derivative implementations.
...which is a perfect example of why software patents shouldn't exist in the first place. One could implement this feature in any number of novel, unique ways therefore the patent is nothing more than a claim on a broad concept rather than a specific implementation (which is what patents are supposed to cover).
The paradox of patents on software is this: If the patent covers what it's supposed to cover (a specific implementation) the patent will be useless because anyone could implement what amounts to the same thing using different methods, languages, whatever. If the patent covers a broad concept it will prevent anyone from using it or innovating in that entire domain until the patent expires. Completely defeating the purpose of having patents in the first place. It will also likely (after millions upon millions of dollars wasted in lawsuits) be ruled invalid as being overly broad.
Software patents are inherently a bad idea and should be done away with.
Patents _are_ supposed to cover inventions, not implementations.
They're about innovating technological abilities, and disclosing them in exchange for limited monopoly; it's not about specific products or specific implementations.
If it were just about implementations then all patents could be easily circumvented and there would be no reward in exchange for the full disclosure of a new invention.
(Design patents do cover specific implementations at the morphological level.)
Patents are about how you do something, not what you do.
This patent is about how Apple's compiler implements some programing language features. It does not protect the programming language feature itself. Another compiler that employs a different 'how' can implement the same programming feature. So, if you don't want to infringe on this patent, you are forced to invent (or use) another way of doing the same thing.
A key difference is that software is already covered by copyright. Identical copies violate copyright for software. For a mechanical device, identical copies generally don't violate copyright (trademarks, text, etc aside).
Mechanical devices need patents for the design, as a competitor can easily re-implement an absolutely identical design. It's often clear by inspection how it's made. A different device that accomplishes the same task in a slightly different way doesn't infringe on the patent.
Software already has protection against identical copies through copyright. The key difference is that software patents go farther; they claim to cover the concept. Any implementation of the concept violates the patent. Re-implementing software to accomplish the same mathematical concept in a different way still violates the patent.
>Can't you make a pretty similar argument about all types of patents?
Yes, yes you can.
While I'm sure that you can find examples of software patents that have patented a specific implementation of a given idea, you can also find mechanical patents that claim a broad concept. These patents exist for two main reasons: 1) They discourage competitors from attempting anything within the broad concept. Even if a judge would probably rule a patent unenforceable, the risk of litigation is enough to make legal departments recommend against doing things that are covered by the patent. 2) They give companies ammo when they do get to litigation. If Company A sues Company B for infringement on one of its patents, Company B can come back and countersue because it holds a large war chest of other broad patents. Even if most of them are unenforceable, each one poses its own risk that some part of it is held up and the infringing party is liable for damages. The quantity of patents involved (and the legal costs for litigating such a case) help push companies into a quicker out-of-court settlement.
The problem as I see it is not with software patents versus mechanical patents. It's with broad patents versus specific patents. There needs to be a mechanism for easily challenging the validity of a patent after it is issued.
Edit: For context, I'm a mechanical engineer who's worked on design & development of technical consumer products.
Patents were meant to protect the person who invented a particular physical object or physical process.
Patenting software amounts to patenting algorithms, which is basically patenting math. It's far broader in scope by its very nature. On top of that, it's not hard to get software patents on things that are obvious, often by simply patenting "$well_established_process, but in software".
So-called software patents are always drafted as machines that can perform the claimed actions. These machines are comprised of one or more hardware components, including some hardware components that can execute machine readable instructions.
(There really is no such thing as a software patent.)
In Europe we do manage to make that distinction, though it is nuanced, and it specifically excludes the "program on a media" or "program in the physical memory of a computer" methods of trying to make all software appear to be physically technological.
To me software patents and patents for, for example, real world engines are the same. It's okay not to like patents, but separating software patents from the rest makes no sense.
Ah, but you are overlooking the key difference: you cannot commercialize an engine without building it. With software, commercialization costs "nothing" [1].
A smaller company could come up with a unique engine design, but without patent protection, a bigger company could just drop by and take the design and build it themselves. In other words, the larger company would get R&D "for free". In the engineering world, only by "building" the design can you make money (in general).
So without patents, there would be no reason for smaller companies to exist, simply because such companies would have no counter-measure for their lack of financial resources.
[1]: Nothing here means "no physical resources". The big costs would be labor and compute (depending on the idea). But I would argue that labor is a bigger cost for a company that would like to build an engine at scale (initial design, manufacturing, testing, supply chain, and so on).
I don't think that's really different between hardware and software. Even in software, the bigger company often has a decisive advantage in marketing. The history of computing is littered with the graves of small companies crushed by behemoths.
So that might actually be an argument in favor of software patents, if they actually did protect the interests of small companies. Unfortunately it's almost impossible to implement a new idea in software without using a lot of other recent ideas at the same time, and if all the recent ideas are patented, no one will be able do anything that isn't 20 years out of date unless they have a defensive patent portfolio of their own.
> I don't think that's really different between hardware and software.
Marketing budget is something inherent in small vs. big companies in all industries, so I do not agree that the fact that software and hardware share this makes them similar.
Your example does demonstrate a benefit of software patents in theory, but is this how they are typically used in practice?
So, I invent a method that dramatically improves search engines. How do I commercialize it for “nothing”, if I’m not one of the few companies with access to a huge data set, and cannot protect my invention with patents?
And yes, there are definitely exceptions, but my point is that the general case in software != the general case in engineering, which is why you cannot directly compare the effect the patent system has on the two fields.
--edit-- see below comments.. this may not be so simple.
No. The Apache License 2.0 does not work that way. You are allowed to copy and use everything in the Swift language to your own liking in a similar manner to the MIT and BSD permissive licenses. However if you then try and begin a lawsuit against Apple for anything in what you copied, your rights are terminated, therefore invalidating your suit. The Apache License also gives you access to the patents in the language. It's a bit of a hack like GPL is, except that you are allowed to do just about anything with the code except sue.
The license, at least the way I see it, is a signal that Apple isn't in the business of patenting language features. In fact, in a way, Apple is using their resources to gobble up space that patent trolls can never again exploit. Once a patented feature is released under Apache 2.0, I know of no way that it can be undone.
So, to make it clear - since that's a question that was unanswered in the linked discussion.
If someone makes a from-scratch implementation of Swift, or any other language with similar features, can Apple then sue them over these patents? Or does AL prevent this?
Apple could try, sure, and you wouldn't have something like the Apache 2 license to point to in order to attempt to resolve things quicker.
Any number of people could try to sue you for any number of things. Thats unfortunately how lawsuits work.
You could also attempt to get another license from Apple for your work. They might not be willing to do this unless you somehow could guarantee all patent licensees for your version of Swift would be unmotivated (by some legal clause or agreement) to sue them as well.
I doubt Apple would go through the work of getting a patent for something that they already openly give out licenses for people to use (via Apache 2) unless it was meant purely for defensive purposes. So I'd be shocked if they went after a from-scratch Swift implementation except for trademark purposes (aka, you can't call name it Swift if it is a partial implementation)
I believe there is a flaw in the Apache License 2.0 here. If the patent grant only covers the code in question. If this is true, then it not only reinforces software patents, but reinforces implementations too.
My understanding is, that the point is to make sure the users of the code don't have to care about patents. It's a license for the code, not for the patents.
How about Apple switching to a different patent holder friendly license for a future version of Swift? Older versions would be safe, but they could ask money to use the new ones. And maybe they decide who to go after first.
This sounds like defensive patenting, which is what Microsoft used to do: patenting things to keep them out of the hands of the patent trolls, but not to restrict people from actually using the idea against them.
This is not, by itself, a bad thing. In fact, it's good.
However, is there any way Apple could change their minds in the future and start wielding the patent against others? To me, that is the danger of granting patents even to people who appear to be acting as a good guy.
Someone could even implement the feature in a dynamic language like Python or Lisp for a particular application. Does that mean the application is infringing the patent because they didn't use Swift?
Patents are written to be as broad as possible. The most careful interpretation is that if anyone does option chaining anywhere, it is covered by the patent, and actionable by the patent holder.
Companies that are mere consumers of IT have been sued by patent trolls, and paid up.
If whatever language implementation you are using implements that, and infringes, then you infringe that by running programs in that language. All unlicensed users of anything emanating from the patent infringe on it.
Could you please elaborate on this? Is there any direct confirmation of this? There wasn't any single answer from anyone affiliated with the Swift core team on this specific point. Or from any lawyer for that matter.
Patent claims define the legal scope: if "using Swift" isn't in the claims then using another language, provided it fits the language of the claims, is also covered by the patent.
ok, does it mean that if you implement only parts of the patent (say only a single feature) there's no infringement because then it doesn't "fit the language of the claims"?
If you look at the main claims (any that don't add to a previous claim, ie don't include "the invention of claim X wherein ...") then you need to be doing something that matches all clauses in the claim to infringe.
When drafting the claims writer (patent attorney or agent usually) will add clauses to work around prior art. You can't just add unrelated features though, the features need to have synergy to represent a single invention.
[I've read a lot on USA patents but only worked directly with UK and EU patents.
