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Groklaw's Software Patents Definition Update
Friday, June 03 2005 @ 06:45 PM EDT

Rupert Goodwins, whom I adored already, noticed our software patents language, and he has some well-crafted words about it:

Taking as a starting position that pure software should not be patented, a group of Groklegals set to work on a legal statement to that effect. One public consultation and thirty drafts later, the statement is available for comment.

It is a solid piece of work, written in the light of the previous definitions that the UKPO workshops found unacceptable. Those interested in what defines and separates software, information and their carriers should go and read through the closely argued details on Groklaw, but the end result is clear. You can only patent things that make physical changes in the world: these can contain software, but that software is not of itself patentable.

He goes on to explain, by an example, how our definition would play out, and he totally gets the line we were trying to draw in the sand:

If I were to invent a device for finding mushrooms in a forest — as a mycophile, this an idea I've actually spent some time on — then it would doubtless contain software. For example, I could develop an algorithm that sorted and counted spores in an air sample through video analysis, but all the patent would care about would be a black box that produced a spore analysis to ring a bell, point an arrow or whatever. That would be strong enough to protect my invention — even if someone came up with a different way to sort spores — but wouldn't stop anyone else from using video analysis to check for dandruff or cocaine particles at parties. That seems to sensibly encompass the balance between protection and disclosure that the patent system is designed to strike.

The Groklaw team working on this project are now absorbing everyone's comments and suggestions, and we'll have a revision as soon as we are able. If you have anything further to add, now is the time.

I really enjoy the way Goodwin writes, and if you enjoy good writing, too, I recommend you hop on over and read his entire article. Since you helped come up with the definition, you might as well savor the glow, knowing that all the effort was appreciated.


  


Groklaw's Software Patents Definition Update | 228 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please, if needed
Authored by: tiger99 on Friday, June 03 2005 @ 07:18 PM EDT
.

[ Reply to This | # ]

OT Here please....
Authored by: tiger99 on Friday, June 03 2005 @ 07:19 PM EDT
And please do try to make clickable links, where appropriate.

[ Reply to This | # ]

Food for Thought
Authored by: Anonymous on Friday, June 03 2005 @ 07:32 PM EDT
While working on my masters degree sixteen years ago, I took an assembly
language course where the professor gave us the following problem.

We had to write a process control program to perform a particular function.

1. If it worked you got a 100 (perfect score).

2. If it worked an assembled to less than 70 maciine instruction bytes you got
a score of 105.

3. If it worked and assembled to less than 60 bytes you got a grade of 110.

The professors solution was 64 bytes. I, after a week for gruling work got it
down to 57 bytes. Some turkey in the 90 person class came in at 56 bytes and
for the life of me I do not know (to this day) how he managed it. We were the
only two submissions under 60 bytes.

The point is that this was a process control program and therefore (apparently)
would be patentable. If an original process control program is patentable and
assembles to (say) 87 bytes, it might be illegal to rewrite that program. The
difference in execution speed between the 87 byte program and the 56 byte
submission could be critical to the proper operation of the machine.

If it becomes illegal to rewirte the program without the authors permission, and
it is a key part of the flight control system of an airplane, do you want to Fly
or Go By Train??

Tom

[ Reply to This | # ]

Edge Case
Authored by: Anonymous on Friday, June 03 2005 @ 07:41 PM EDT
I think one 'edge case' that all patent schemes should keep in mind is that of
the FPGA.

In layman's terms, such a device is hardware that can rewire itself into
physically different circuits, based on whatever programming it is given. So,
within limits based on its size and design, it can make itself into *any*
circuit it's told to.

Under some schemes, one might use this to argue that all circuits become
software in it, and thus unpatentable as simple programming of an FPGA. Taken
to another extreme, all software could be put into FPGAs, turning the
instructions into circuits into what might well seem to be a patentable device.

So I do like how the scheme given on Groklaw divides up even the different roles
of the FPGA, but I do think that its consideration might be a reasonable litmus
test to give any scheme concerning patentability, given that these devices are
rather prevalent and only likely to become even moreso.

[ Reply to This | # ]

Explicit exclusions should be a starting point.
Authored by: Anonymous on Friday, June 03 2005 @ 08:20 PM EDT
As a starting point there should be a series of explicit
exclusions:
1) Exclude patenting of specifications, standards, data
stuctures, protocols, file formats, data encoding formats.
2) Exclude patenting of algorithms, business methods.

[ Reply to This | # ]

The language of the code, protected by copyright, is the only description that is accurate...
Authored by: Anonymous on Friday, June 03 2005 @ 08:29 PM EDT
All thru the alpha, beta, prelease, and release stages to software there is
code. That code, with each version release, says better than anything else what
a program does and does not do.

Any additional writing that attempt to describe what the code does (patent
language vs program language) can NEVER do justice to what is written already in
the program, it's code. The ever changing code version by version is what tells
the whole and complete story.

How can one have a program that has both a copyright and a patent protecting it?
Which form of protection is primary and which is secondary? Which term of
protection applies, the patent term or the copyright term?



[ Reply to This | # ]

Create a point system to value a patent application's worth (or total lack of worth)!
Authored by: Anonymous on Friday, June 03 2005 @ 08:36 PM EDT
Let's say you invent some list of 20 criteria for something to be patentable.

As you go down thru the list of 20 criteria you assign a value to each item of 0
thru 5.

When you don't total the numbers you multiply them. You will have a score to
evaluate the worth of the patent based on the criteria's results.

Of course if any of the criteria is valued at zero, then the total will be zero
and the patent can not be granted. Because a total of zero is worthless and
shows a failing at one critical item in the valuation system.

[ Reply to This | # ]

Patents covering all software implementations
Authored by: kfiles on Friday, June 03 2005 @ 08:45 PM EDT
My only concern is with the "magic box" test. The benefit of such a
test is that it precludes patent holders from extending a patent on software
from one process to another unrelated field. So, if I patent a system for
automatically guiding a car, and the software is a "magic box" within
the system, the patent can't be used to argue that I have a monopoly on systems
to guide motorcycles (or all mapping or route-calculation software).

However, this does mean that I have a patent on *any* similar car guidance
system that involves software, no matter how different that software is. No one
can devise another guidance method that differs solely by the software. I have
cornered the market on software-controlled guidance systems. So now someone has
to add a significant technical contribution to the physical embodiment of the
process (perhaps a really expensive gyro) in order to avoid my patent. This may
be a bad unintended consequence.

Thanks,
--kirby

[ Reply to This | # ]

Patenting computerization of processes?
Authored by: Walter Dnes on Friday, June 03 2005 @ 09:09 PM EDT
Processes have been undergoing automation/computerization for several decades
now. It started in factories, but has spread elsewhere. In the 1950's the
scaremongering was about all the factory workers to be laid off. In the 1970's
it was about all the clerical/secretarial staff to be laid off.

The concept of automating/computerizing physical processes is several decades
old, and should be viewed as glaringly obvious, and therefore not be patentable.
Commerce is not patentable, but its computerization, i.e.
"e-commerce" seems to be getting a whole slew of patents. And there
are a lot of others, which seem to describe perfectly normal everyday
activities, and throw in the words "and a computer", and thereby get a
patent.

Is "obviousness of the concept of computerizing a process" a valid
argument against software patents?

[ Reply to This | # ]

physical changes to the world you say???
Authored by: Anonymous on Friday, June 03 2005 @ 09:12 PM EDT
"Are the capacitors in my RAM not part of the real world? Are the brain
cells of the user not part of the real world? Are the magnetic domains on the
disk not part of the real world? Are the toner fragments on the paper and the
photons on the screen not part of the real world?"

At least that's what the pro-patent lobby will say.

[ Reply to This | # ]

"... using video analysis to check for dandruff or cocaine particles at parties"
Authored by: Anonymous on Friday, June 03 2005 @ 09:48 PM EDT

Now if someone could just get a prototype working for the next SCOX business
meeting ...

[ Reply to This | # ]

Copyrightable???
Authored by: Anonymous on Friday, June 03 2005 @ 10:37 PM EDT
Perhaps a statement that if it is copyrightable it is not patentable would help
clarify the situation, though it wouldn't eliminate ALL the ambiguities, since
it's been shown that header files, etc. aren't copyrightable, for example. But
it might help define the principle.

Larry N.

[ Reply to This | # ]

  • Copyrightable??? - Authored by: Anonymous on Friday, June 03 2005 @ 10:59 PM EDT
  • Copyrightable??? - Authored by: Anonymous on Saturday, June 04 2005 @ 03:20 PM EDT
Is the work/definition being shared with FFII or the Parliement/JURI?
Authored by: Anonymous on Friday, June 03 2005 @ 11:47 PM EDT
Are there people in charge of getting this excellent work known to the Jury
commission, the FFII and other relevant entities?

Otherwise it would really be a shame!

André

[ Reply to This | # ]

Groklawyer?
Authored by: Anonymous on Saturday, June 04 2005 @ 01:31 AM EDT
I noticed them using the term "groklawyer" in that article.

I wonder how long until "groklawyer" is recognized as well as other
terms, like googling something[1]?

Groklawyer could be the antonym of "shyster" :)

[1] Google is a trademark of, well, Google. I know they're fighting to defend
their trademark from becoming generic, and that they have to, but I'm sorry--the
verb form of Google is now a word in its own right, distinct from the adjective
'Google' Google owns the rights to use in describing their goods & services
:)

[ Reply to This | # ]

"Instruction Set" is a term of art
Authored by: MarkusQ on Saturday, June 04 2005 @ 08:52 AM EDT

As discussed on the other thread the phrase "Instruction Set" has to go. It is a term of art with a very specific meaning in computer science and that meaning is not the one you are wanting.

Say something like "structured collection of instuction, indended for or capable of execution by a machine" or some such.

But the definition of software as it stands is as defining a "lawyer" as "a person who makes laws" or "a bookend" as "the final chapter of a book"--it may seem right if you don't know the words, but it seems very wrong if you do.

--MarkusQ

[ Reply to This | # ]

Groklaw's Software Patents Definition Update
Authored by: tredman on Saturday, June 04 2005 @ 10:42 AM EDT
Rupert Goodwins' article closed with a sentence that kinda gave me a little
smirk, when referring to the fine work that's been done here on Groklaw
regarding the patent language:

"There is no patent on having good ideas."

I only smirk because there are those out there that would change that if given
the chance.

My question to the community is this:

If we, as a microcosm of society, are able to use our influence, get this
language, or language similar to it, pushed through the EU and are able to
reform software patents in Europe, does that even make a dent in the patent
process in the US?

How many good inventions and innovations are going to be lost to European
companies before the government gets their collective heads out of their
collective butts and fall in line?

Will it even make a dent?

I'm not trying to be xenophobic in this respect. Many fine things come out of
European workshops and R&D departments, and I wholeheartedly encourage them
to continue their bleeding edge work. I'm just worried that the US, once again,
is going to fall behind in technology to the rest of the world because of
bureaucracy. Think VCR.

So many times have I thought about starting an open source project (1), and
simply don't want to deal with the liability of it. I can't help but wonder how
many others feel the same way. Fortune favors the bold, but I'm no
revolutionary. I just want to tinker, and I don't want to lose my house and car
just to indulge in my hobby.

(1) Linux is sorely lacking in the audio/video conferencing and collaboration
arena, a potential patent minefield. No disrespect to Gnomemeeting. Damien
Sandras has developed a fantastic application, but I had some ideas of taking it
in a little different direction, and where I'd like to go with it would require
a major, ground-up rewrite.

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

Groklaw's Software Patents Definition Update
Authored by: Anonymous on Saturday, June 04 2005 @ 07:38 PM EDT
The description of a patent on a spore sniffing machine bothers me because it
seems to be tryint to prevent any _other_ black box from doing the same job.
If I am right, this is decidedly against what patents were intended to do.
An example from history that I can (vaguely) recall is Sam Colt's patent for a
revolver. His device was carved out of wood to demonstrate to the Patent Office
what his idea was and he made his real pistols in the same pattern, but of
steel.
This did not prevent Smith & Wesson from making another ("black
box") revolving pistol using a different internal mechanism, nor was it
intended to.
The two devices had different patents on their different mechanisms.
The spore sniffer example seems to preclude that sort of
different-but-similarly-useful type of design.
I dislike the idea of "black box" patents, because they are just as
bad as software patents; they prevent competitors from using *any* design at
all, not just the one design that was awarded the patent.
That is fundamentally a restriction on *all* progress in any field that allows
black box patents.

[ Reply to This | # ]

Patent vs Copyright
Authored by: Anonymous on Sunday, June 05 2005 @ 03:02 AM EDT
If the intention of patents is to encourage invention, I think a patent should
only be granted when accompanied by a fully public implementation.

The patent prevents other people using this implementation for the relevant time
(unless agreed royalties are paid) but everybody else can see all the details,
including all the code.

If the patentor chooses to separate the code from the described implementation,
and claims copyright instead of patent on the code, then no claim for breach of
patent can be made against somebody providing their own code to interoperate
with the stuff that is described.

When the patent expires, any computer code or other text in the patent
description becomes public domain, as a condition of registering the patent.

Provided you reimplement the code or non-computer parts differently, you don't
breach the patent.

If someone finds that a patent does not adequately describe how to build and use
the patented thing, the patent becomes voidable for incomplete disclosure, and
all royalties collected get returned including penalties.

This is also true if the computer code is separated and there is inadequate
specification of the interface between the copyrighted software and patented
hardware, or if it can be demonstrated that the patentor's own software does not
satisfy the public specification. The patentor is compelled to provide a usable
copy of the software for such testing.

[ Reply to This | # ]

Groklaw's Software Patents Definition Update
Authored by: IRJustman on Sunday, June 05 2005 @ 03:50 AM EDT
I've said something like this before in another thread, but here goes:

To listen to my paranoia and, in this case, to tempt Godwin's Law, the following
terms and phrases come to mind about this:

"Lebensraum"
"Peace in our time"
"Blitzkrieg"

And for the F/SF fan in me, as I believe I've seen said in the past, the first
thing that comes to mind is the Cylon peace treaty in Battlestar Galactica, or
more appropriately, the direct aftermath of same.

I'm inclined to agree with this thread. They'll have to prove that their
willingness to work with the OSS community is genuine, and doing so in the
presence of overwhelming evidence suggesting otherwise will prove well nigh
impossible.

There's nothing to lose just by hearing them out to find out what they are
interested in doing. If anything, we gain what insight of what they may wish to
accomplish.

--Ian.

[ Reply to This | # ]

and now the FUD campaign starts
Authored by: Anonymous on Sunday, June 05 2005 @ 04:10 AM EDT
This was in this morning's Sunday Express:

New EU Law Threat To UK Software Jobs

By Julia Hartley-Brewer
Political Editor

MEPs are to vote next month on a controversial new EU law that could cost
thousands of British jobs.
EU commissioners have approved a directive which will ban European companies
from patenting any high-tech innovation that uses computer software.
the ban could affect the makers of many everyday consumer products, including
mobile telephones, televisions, cars and washing-machines.
Opponents of the new law fear it will open the floodgates to cheap American,
Chinese and Indian copies of products developed by European firms.
The directive covers all software used in mechanical devices, but it will only
affect Europe. So, while China, India and the US will keep the protection of
patents for their home-grown companies, European firms will have no protection
at all.
Small business groups are also alarmed that multinational corporations will be
able to steal their ideas and inventions. Small firms are responsible for filing
85% of all UK patents.
The European parliament has already urged the commission to change the
directive, but EU Commissioners have refused and are pushing ahead with the
law.
British ministers have also backed the directive, which was intended to ensure
consistency between the laws of the EU's member states.
Now only a majority vote by MEPs on July 6th can stop the proposal from becoming
law.
Simon Gentry, who runs the Campaign for Creativity, said "Abolishing
intellectual property sounds very attractive on a superficial level since it
will make software cheaper and more widely available." "But the
implications go far beyond computer software and will damage all of the
induatries in which Europe leads and that means jobs will be lost. At the same
time, China and India are introducing stronger protection for their own home
markets."
Daniel Doll-Steinberg, whose computer firm tribeka faces losing all its
marketable value if the law goes through, said "Europe is being very
shortsighted on this. Patents create new products and wealth and jobs. In the
long term, they work in everyone's interests."
But the patent Office said: "We believe that the directive will help
clarify the current rules for patents related to computer implemented
inventions, without extending or restricting the existing range of
patentability." "This in turn will aid competiveness across all
sectors of the economy and be of particular benefit to small and medium
entreprises as well as a range of high-tech industries such as
telecommunications, aerospace and automotive, in which Europe currently has a
competive advantage."

I copied the article verbatim as the Sunday and Daily Express are extremely
stupid in not having a proper online new presence. If they had had this article
online, then I'd simply have given you a link...

So, she's got it completely wrong on so many counts it's not believable.

Can some of you please write to her with reasoned arguments explaining just
where she has got it wrong???

[ Reply to This | # ]

Professional Contractors Group to go to FFII Conference
Authored by: sjgibbs on Sunday, June 05 2005 @ 10:44 AM EDT
The Professional Contrators group which represents the interests of the
"leased software developers" Groklaw has backed in the past (and which
FOSS is great for IMHO) has announced a position on Software Patentability and
promises to attend the FFII conference.

"Software might look technical, but is in reality just a set of
instructions to a computer; it should be no more patentable than the rules of
chess,” explained Dr Juden."

http://www.pcg.org.uk/LatestNews/10146.html

Full Disclosure: I am paid up a memeber of the PCG. (I actually called for
exactly this position in the comments section of the last membership
questionnaire - I must not have been alone).

[ Reply to This | # ]

Practical Test for Non-Patentability
Authored by: Anonymous on Monday, June 06 2005 @ 06:33 AM EDT
Anything that can be transmitted without loss down a copper twisted pair cable
cannot be patented.

It may be subject to copyright.

It may be the design for something that can be patented.

However, the information itself - data, code, logic, specifications, images,
DNA, RFCs, legislation, comment, formulae, diagrams...

...should not be subject to protection by patent legislation.

[ Reply to This | # ]

!!!!STILL MISSING THE POINT!!!!
Authored by: Matthew Bassett on Monday, June 06 2005 @ 07:43 AM EDT
A lot of you software types seem to think there is some special magic about hardware that makes realising algorithms in it in some way different than realising algorithms in software.

This is utter rubbish: speaking as an LSI hardware design engineer, there is very little we do in the design of hardware (either in analogue electronics or digital electronics) that is distinguishable from the concepts and processes used in designing and implementing software.

This question of "is an FPGA hardware or software" is only being raised through ignorance-- an ASIC or full custom IC is equivalent to software in that it uses only well understood manufacturing techniques to implement an algorithm; and that algorithm is always represented in a software like language, a logic netlist, or in the case of an analogue design either a mathematical equation or a circuit diagram-- or in the case of fully custom IC a mixture of all the previous.

None of these representations require that a physical device be present to perform the design-- we use models and simulations of the device in order to be able to design it and verify it before going to manufacture (unlike software a design mistake is very very expensive for hardware. Unless it is implemented on an FPGA, in which case a design mistake can be very cheap).

That is: it is all pure algorithm.

The only possible exceptions to this are:
  • Your chip is manufactured using some new wonderful process-- that it itself would be patentable, but still your chip should not be.
  • Err... that's it.

I believe that this is the big problem, as I understand that ignorance in the patent offices has already allowed patents on what are purely algorithms, just implemented in fixed hardware (rather than mutable computer memory): e.g. custom DSPs functions-- on the basis that it is a physical device rather than computer memory in which the algorithm is realised. I also believe this is the Trojan horse that software patents are riding in on: people are looking at the patents granted this way and saying "well look-- it makes no sense to grant patents on the hardware: it of itself is not doing anything worthy of patent protection, only implementing an algorithm: I want my algorithms implememented in computer memory, rather than in fixed silicon to be granted the same protection". They're right of course in that it makes no sense to seperate the two-- they're just drawing the wrong conclusion about which way to extend/reduce patent protection.

CONCLUSION: we really need to be resolving what patents can be applied to without any specific reference to just software-- otherwise we will never be able to logically resolve the issues that arise and we will end up with patents on software.

[ Reply to This | # ]

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