decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Friday, December 15 2006 @ 02:05 PM EST

This will interest you, and it certainly interests me. You may have read about the Microsoft v AT&T case, which is about whether or not U.S. software patents cover activity outside of the United States. The Software Freedom Law Center has just filed an amicus brief in the case, arguing against that proposition -- which puts them on the same side of the argument as Microsoft -- but significantly, the brief also argues against software patents. Eben Moglen Executive Director of SFLC: "The Supreme Court has consistently ruled that algorithms and mathematics cannot be patented. Since software is expressed as mathematical algorithms, it should not be patentable."

That exactly what I've been arguing for years, so I'm excited that at least now the issue is beginning to be addressed. I've explained to you before that changes in the law take time, that there is an educational process, whereby judges and lawyers move their thinking based on the kind of education that this brief represents. Sometimes the process takes a while, but it is the process that finally works. Way back in the summer of 2003, I wrote an Open Letter to Microsoft, back when we first heard them hint about suing Linux over patents, pointing out that there isn't a company in the world that isn't violating somebody's patents, because software code is math. Complicated math, but math just the same. And there are only so many ways to say 1 + 1 = 2:

One of these sweet days, enough people will finallly understand this, and they will say to each other, "Patents aren't a good fit with software. Why did we let Microsoft and other large software companies land grab like this? The only result is a restriction on innovation by the rest of us." You know how much you believe in innovation. That'll be a PR challenge you can't win. And that'll be the end of the patent hussle.

Law is based on what people think is fair and appropriate. In a democracy, at least, that is the idea. And when you get so many people so mad, it's trivial to predict the result to you if you attack the GNU/Linux community in your typical smarmy way.

That sweet day may be closer, thanks to this brief. Someone has to raise an issue at the right court at the right time for good results to flow. Even if this doesn't bear immediate fruit, at least the issue is before the Supreme Court. Here are some other reasons why software and patents need to get a divorce. Here is a paper written in 1999 to the USPTO by the League for Programming Freedom, "Software Patents - An Industry at Risk", providing in great detail all the reasons why software patents are a bad idea. Yes. 1999. The education process takes time, and you have to talk to the right body. The Supreme Court is the right body, and the educational process has, at least, begun.

The worst thing, to me, about the patent system is that there is no place in it for software released under the GPL. The amicus brief opens like this:

Much of the world’s most important and most significant software is distributed under terms that give recipients freedom to copy, modify and redistribute the software (“Free and Open Source Software”). One could not send or receive e-mail, surf the World Wide Web, perform a Google search or take advantage of many of the other benefits offered by the Internet without Free and Open Source Software, which also includes the Linux operating system that is today’s strongest competitor to Petitioner’s Windows operating system. Indeed, this brief was written entirely with Free and Open Source Software word processors, namely OpenOffice, gedit and LaTeX, each of which are not just competitive with nonfree software programs like those offered by Petitioner on terms of functionality, but which also provide their users with the freedom to improve the program to fit their needs and desires.

The Software Freedom Law Center (“SFLC”) is a notfor-profit legal services organization that provides legal representation and other law-related services to protect and advance Free and Open Source Software. SFLC provides pro bono legal services to non-profit Free and Open Source Software developers and also helps the general public better understand the legal aspects of Free and Open Source Software. SFLC has an interest in this matter because the decision of this Court will have a significant effect on the rights of the Free and Open Source Software developers and users SFLC represents. More specifically, SFLC has an interest in ensuring that limits are maintained on the reach of patent law through Section 271(f) so that Free and Open Source software development is not unreasonably and unnecessarily impeded.

SUMMARY OF ARGUMENT

Software can not be a “component[] of a patented invention” under 35 U.S.C. § 271(f) because software is not patentable subject matter under 35 U.S.C. § 101. As such, the Federal Circuit’s holding to the contrary in this case is erroneous and should be reversed.

I. Software Cannot Be A “Component[] Of A Patented Invention” Under § 271(f) Because Software Is Not Patentable Subject Matter Under § 101.

The Court of Appeals for the Federal Circuit in this case resolved the issue of whether software may be a “component” of a patented invention under § 271(f) by relying on its contemporaneous Eolas decision, which held that “without question, software code alone qualifies as an invention eligible for patenting [under 35 U.S.C. § 101],” and that “every form of invention eligible for patenting [under 35 U.S.C. § 101] falls within the protection of Section 271(f).” AT&T Corp. v. Microsoft Corp., 414 F.3d 1366, 1369 (Fed. Cir. 2005) (citing Eolas Techs. Inc. v. Microsoft Corp., 399 F.3d 1325 (Fed. Cir. 2005)).

While the Federal Circuit is correct that only subject matter eligible for patenting under § 101 can be captured by § 271(f), the Federal Circuit’s holding in Eolas that software is patentable subject matter conflicts with longstanding precedents of this Court. As noted in the recent opinion of Justice Breyer dissenting fromthis Court’s decision to dismiss as improvidently granted a patentable subject matter challenge, this Court has not approved of the Federal Circuits Section 101 jurisprudence. See Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 126 S.Ct. 2921, 2928 (2006) (Breyer, J., dissenting) (discussing the Federal Circuit’s “useful, concrete, and tangible result” test for patentable subject matter and stating that “this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary”). To support its holding in Eolas that “without question, software code alone qualifies as an invention eligible for patenting,” the Federal Circuit relied merely on its own previous decisions. Eolas, 399 F.3d at 1339 (citing In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999)). Eolas and the earlier cases on which it relied completely ignored this Court’s precedent (discussed below) that sets out firm limits on patentable subject matter and that - in fact - excludes software from patentable subject matter. Therefore, since Eolas fails to abide by this Court’s precedent regarding patentable subject matter, the Federal Circuit’s reliance on Eolas for the holding in this case that software can be a “component[] of a patented invention” under 271(f) is legally erroneous and should be reversed.

Here's the full press release, followed by a text version of the brief:

**************************

FOR IMMEDIATE RELEASE

Software Freedom Law Center Files Brief with Supreme Court Arguing
Against Software Patents

Brief Filed in Microsoft v. AT&T

NEW YORK, December 15, 2006 -- The Software Freedom Law Center (SFLC), provider of pro-bono legal services to protect and advance Free and Open Source Software, today filed a brief with the United States Supreme Court arguing against the patenting of software.

In the case Microsoft v. AT&T, the Supreme Court will decide whether U.S. patents can apply to software that is copied and distributed overseas. The Court of Appeals for the Federal Circuit, a specialized patent court known for allowing patents on software and business methods, originally decided in favor of AT&T, expanding the international reach of U.S. software patents. Microsoft appealed, and the Supreme Court agreed to hear the case.

In its brief, SFLC argues that software copied and distributed outside the United States cannot infringe U.S. patents. The brief also argues that the Federal Circuit's decisions declaring software to be patentable subject matter conflict with Supreme Court precedent and, as such, should be overruled.

"I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft," said Daniel Ravicher, SFLC Legal Director. "In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents."

In Supreme Court decisions, the explanation for deciding a case is almost always more important than the outcome of the particular case at hand. In this case, the Court's decision will determine whether U.S. software patents can be used to restrict software development, distribution and use throughout the rest of the world. The ruling may also decide whether software patents are even legally allowed to exist in the United States.

"In contrast to the Federal Circuit, the Supreme Court has maintained limits on patentable subject matter throughout U.S. history," said Eben Moglen, Executive Director of SFLC. "The Supreme Court has consistently ruled that algorithms and mathematics cannot be patented. Since software is expressed as mathematical algorithms, it should not be patentable."

Software patents are an important issue for developers and users of Free and Open Source Software. The Software Freedom Law Center, along with other organizations, hosted a conference at MIT and Boston University in November that addressed the legal, economic and social consequences of software patents.

SFLC's brief is available on the Web here.

About the Software Freedom Law Center

The Software Freedom Law Center -- chaired by Eben Moglen, one of the world's leading experts on copyright law as applied to software -- provides legal representation and other law-related services to protect and advance Free and Open Source Software. The Law Center is dedicated to assisting non-profit open source developers and projects. For criteria on eligibility and to apply for assistance, please contact the Law Center directly or visit the Web at http://www.softwarefreedom.org.


No. 05-1056

IN THE
Supreme Court of the United States

__________________________________

M I C R O S O F T C O R P O R AT I O N,
Petitioner,

v.
AT & T C O R P.,

Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit

BRIEF OF THE SOFTWARE FREEDOM
LAW CENTER AS AMICUS CURIAE
IN SUPPORT OF PETITIONER

_______________________________

EBEN MOGLEN
Counsel of record

DANIEL RAVICHER
RICHARD FONTANA
Software Freedom Law Center
[address, phone]

December 15, 2006

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . ii

INTEREST OF THE AMICUS CURIAE . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . 3

I. Software Cannot Be A "Component[] Of
A Patented Invention" Under § 271(f) Be-
cause Software Is Not Patentable Subject
Matter Under § 101. . . . . . . . . . . . . . . 3

A. This Court's Precedent Sets Out Limits On
Patentable Subject Matter. . . . . . . . . . . 4

B. The Federal Circuit Has Strayed From
This Court's Limits On Patentable Subject
Matter. . . . . . . . . . . . . . . . . . . . . . 6

C. Since Software Does Nothing Other Than
Execute Mathematical Algorithms, It Is
Not Patentable Subject Matter And, Thus,
Can Not Be A "Component[] Of A
Patented Invention" Under § 271(f). . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . 13

i

TABLE OF AUTHORITIES

Cases

Arrhythmia Research Tech., Inc. v. Corazonix Corp.,
958 F.2d 1053 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

AT&T Corp. v. Excel Communications, Inc.,
172 F.3d 1352 (Fed. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 4, 9

AT&T Corp. v. Microsoft Corp.,
414 F.3d 1366 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 3

Diamond v. Chakrabarty, 447 U.S. 303 (1980) . . . . . . . 4, 8, 9

Diamond v. Diehr, 450 U.S. 175 (1981) . . . . . . . . . . . . . passim

Eolas Techs. Inc. v. Microsoft Corp.,
399 F.3d 1325 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 3, 4

Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127 (1948) . . . 5, 6

Gottschalk v. Benson, 409 U.S. 63 (1972) . . . . . . . . . . . passim

In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) . . . . . . . . 4, 8, 9

Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc.,
126 S.Ct. 2921 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Le Roy v. Tatham, 55 U.S. (14 How.) 156 (1853) . . . . . . . . . 6

ii

O'Reilly v. Morse, 56 U.S. (15 How.) 62 (1854) ...........5

Parker v. Flook, 437 U.S. 584 (1978) . . . . . . . . . . . . . . . 4, 5, 11

State St. Bank & Trust Co. v. Signature Fin. Group,
149 F.3d 1368 (Fed. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . 9

White v. Dunbar, 119 U.S. 47 (1886) . . . . . . . . . . . . . . . . . . . 11

Constitutions, Statutes, and Regulations

35 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

35 U.S.C. § 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

D. Chisum, The Patentability of Algorithms,
47 U. Pitt. L. Rev. 959 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 7

Kenneth W. Dam, The Economic Underpinnings of
Patent Law
, 23 J. Legal Stud. 247 (1994) . . . . . . . . . . . . . . 6

R.L. Gable & J.B. Leaheey, The Strength of
Patent Protection for Computer Products
,
17 Rutgers Computer & Tech. L.J. 87 (1991) . . . . . . . . . 7

iii

INTEREST OF THE AMICUS CURIAE1

Much of the world's most important and most significant software is distributed under terms that give recipients freedom to copy, modify and redistribute the software ("Free and Open Source Software"). One could not send or receive e-mail, surf the World Wide Web, perform a Google search or take advantage of many of the other benefits offered by the Internet without Free and Open Source Software, which also includes the Linux operating system that is today's strongest competitor to Petitioner 's Windows operating system. Indeed, this brief was written entirely with Free and Open Source Software word processors, namely OpenOffice, gedit and LaTeX, each of which are not just competitive with nonfree software programs like those offered by Petitioner on terms of functionality, but which also provide their users with the freedom to improve the program to fit their needs and desires.

The Software Freedom Law Center ("SFLC") is a not-for-profit legal services organization that provides legal representation and other law-related services to protect and advance Free and Open Source Software. SFLC provides pro bono legal services to non-profit Free and Open Source Software developers and also helps the general public better understand the legal aspects of Free and Open Source Software. SFLC has an interest in this

1

matter because the decision of this Court will have a significant effect on the rights of the Free and Open Source Software developers and users SFLC represents. More specifically, SFLC has an interest in ensuring that limits are maintained on the reach of patent law through Section 271(f) so that Free and Open Source software development is not unreasonably and unnecessarily impeded.

2

SUMMARY OF ARGUMENT

Software can not be a "component[] of a patented invention" under 35 U.S.C. § 271(f) because software is not patentable subject matter under 35 U.S.C. § 101. As such, the Federal Circuit's holding to the contrary in this case is erroneous and should be reversed.

I. Software Cannot Be A "Component[] Of A Patented Invention" Under § 271(f) Because Software Is Not Patentable Subject Matter Under § 101.

The Court of Appeals for the Federal Circuit in this case resolved the issue of whether software may be a "component" of a patented invention under § 271(f) by relying on its contemporaneous Eolas decision, which held that "without question, software code alone qual- ifies as an invention eligible for patenting [under 35 U.S.C. § 101]," and that "every form of invention eligible for patenting [under 35 U.S.C. § 101] falls within the protection of Section 271(f)." AT&T Corp. v. Microsoft Corp., 414 F.3d 1366, 1369 (Fed. Cir. 2005) (citing Eolas Techs. Inc. v. Microsoft Corp., 399 F.3d 1325 (Fed. Cir. 2005)).

While the Federal Circuit is correct that only subject matter eligible for patenting under § 101 can be captured by § 271(f), the Federal Circuit's holding in Eolas that software is patentable subject matter conflicts with longstanding precedents of this Court. As noted in the recent opinion of Justice Breyer dissenting from this Court's decision to dismiss as improvidently granted a patentable subject matter challenge, this Court has not approved of the Federal Circuits Section 101 jurisprudence. See Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 126 S.Ct.

3

2921, 2928 (2006) (Breyer, J., dissenting) (discussing the Federal Circuit's "useful, concrete, and tangible result" test for patentable subject matter and stating that "this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary").

To support its holding in Eolas that "without question, software code alone qualifies as an invention eligible for patenting," the Federal Circuit relied merely on its own previous decisions. Eolas, 399 F.3d at 1339 (citing In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999)). Eolas and the earlier cases on which it relied completely ignored this Court's precedent (discussed below) that sets out firm limits on patentable subject matter and that - in fact - excludes software from patentable subject matter.

Therefore, since Eolas fails to abide by this Court's precedent regarding patentable subject matter, the Federal Circuit's reliance on Eolas for the holding in this case that software can be a "component[] of a patented invention" under § 271(f) is legally erroneous and should be reversed.

A. THIS COURT’S PRECEDENT SETS OUT LIMITS ON PATENTABLE
SUBJECT MATTER.

Confronted with the rise of new technologies, this Court has addressed the issue of patentable subject matter several times. Gottschalk v. Benson, 409 U.S. 63, 71 (1972); Parker v. Flook, 437 U.S. 584, 591 (1978); Diamond v. Chakrabarty, 447 U.S. 303 (1980); Diamond v. Diehr, 450 U.S. 175 (1981). Since before the Civil War, this Court has consistently made it clear that subject matter which

4

would have the practical effect of preempting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection. O'Reilly v. Morse, 56 U.S. (15 How.) 62, 113 (1854); Benson, 409 U.S. at 71. This age-old and time-tested precedent effectively establishes a penumbra of ineligibility for patent protection to safeguard the fundamental policy that laws of nature, abstract ideas and mathematical algorithms be left unrestrained by patents.

This Court stated in Flook that to be eligible for patent protection, "[a] process itself, not merely the mathematical algorithm, must be new and useful." 437 U.S. at 591; Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948). This Court further stated in Flook that it is "incorrect[ to] assume[] that if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of § 101." 437 U.S. at 593. This Court explained that such an assumption is based on an impermissibly narrow interpretation of its precedent, including specifically Benson, and is "untenable" because "[i]t would make the determination of patentable subject matter depend simply on the draftsman's art and would ill serve the principles underlying the prohibition against patents for 'ideas' or phenomena of nature." Id.

In alignment with Benson and Flook, this Court's decision in Diehr held that structures or processes must, when considered as a whole, perform functions intended to be covered by patent law in order to be eligible for patent protection. 450 U.S. at 192. Diehr followed and upheld the core holdings of both Benson and Flook. Id. at 190, 191-193 (citing Benson and Flook repeatedly and stating "[o]ur reasoning in Flook is in no way inconsistent with our reasoning here").

Benson, Flook, Diehr and the other decisions of this

5

Court regarding patentable subject matter consistently established that the inquiry into whether subject matter is eligible for patenting is one of substance, not form. This Court requires that one look, not simply at the language of the patent claim to see if it recites a structure of multiple steps or components, but also at the practical effect of the claim to see if it in fact covers - or otherwise would restrict the public's access to - a principle, law of nature, abstract idea, mathematical formula, mental process, algorithm or other abstract intellectual concept.

This substantive standard ensures that skilled patent draftsmanship is not capable of overcoming one of the core principles of patent law recognized by this Court for more than 150 years that "[a] principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right." Le Roy v. Tatham, 55 U.S. (14 How.) 156, 175 (1853); Funk Bros., 333 U.S. at 130; Benson, 409 U.S. at 67 ("[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work").

B. THE FEDERAL LIMIT HAS STRAYED FROM THIS COURT'S LIMITS ON PATENTABLE SUBJECT MATTER

Many scholars have noted that the creation of the Federal Circuit "did away as a practical matter with Supreme Court jurisdiction in patent cases." Kenneth W. Dam, The Economic Underpinnings of Patent Law, 23 J. Legal Stud. 247, 270 (1994). For example, through a series of decisions, the Federal Circuit has abandoned the substantive based standard established by this Court for determining patentable subject matter and replaced it with

6

a more expansive formalistic approach that looks only to see whether a patent claim contains some structure or has some minimal practical utility. The Federal Circuit's form-over-substance approach has come to include virtually anything within patentable subject matter.

Initially, the Federal Circuit used the opinions of legal commentators to justify straying from Benson and Flook. Arrhythmia Research Tech., Inc. v. Corazonix Corp., 958 F.2d 1053, 1057 n.4 (1992) ("Although commentators have differed in their interpretations of Benson, Flook, and Diehr, it appears to be generally agreed that these decisions represent evolving views of the Court, and that the reasoning in Diehr not only elaborated on, but in part superseded, that of Benson and Flook") (emphasis added) (citing R.L. Gable & J.B. Leaheey, The Strength of Patent Protection for Computer Products, 17 Rutgers Computer & Tech. L.J. 87 (1991); D. Chisum, The Patentability of Algorithms, 47 U. Pitt. L. Rev. 959 (1986)). Evidently, the Federal Circuit felt that "general agreement" amongst legal commentators justified abandoning this Court's precedent. In reaching this conclusion, the Federal Circuit also ignored the Diehr Court's statement that its decision there was in accord with Benson and Flook. Diehr, 450 U.S. at 185 - 193.

Also in Arrhythmia, the Federal Circuit stated that "claims to a specific process or apparatus... will generally satisfy section 101." Id at 1058 (emphasis added). This Court's precedent does not, in fact, support the proposition that any process or apparatus "generally satisfies" the requirements of patentable subject matter. Diehr, 450 U.S. at 193 ("[a] mathematical formula as such is not accorded the protection of our patent laws... and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment") (citing Benson and Flook). The new "general rule"

7

promulgated in Arrhythmia was a major step in the Federal Circuit's departure from this Court's precedent regarding patentable subject matter.

Roughly two years later, the Federal Circuit said that this Court's precedent on patentable subject matter was too unclear to follow. In re Alappat, 33 F.3d 1526, 1543 n.19and n.20 (Fed. Cir. 1994) ("The Supreme Court has not been clear ", "The Supreme Court has not set forth, however, any consistent or clear explanation", "the understandable struggle that the [Supreme] Court was having in articulating a rule"). Contrary to the Federal Circuit's characterizations, however, this Court's precedent on patentable subject matter is plainly clear: the analysis is one of substance, not form, and asks whether a patent claim is substantially directed to a law of nature, natural phenomenon, abstract idea or mathematical algorithm.

After disregarding this Court's precedent as "unclear," the Federal Circuit substituted its own formalistic approach, which finds that virtually anything is eligible for patenting. Id at 1542 ("[t]he use of the expansive term 'any' in § 101 represents Congress's intent not to place any restrictions on the subject matter for which a patent may be obtained"). The Federal Circuit's approach con- flicts with this Court's precedent. As just one example, it ignores the firm statement in Diehr that "[a] mathemat- ical formula does not suddenly become patentable sub- ject matter simply by having the applicant acquiesce to limiting the reach of the patent for the formula to a par- ticular technological use." 450 U.S. at 193.

In support of its holding, the Federal Circuit cited this Court's Chakrabarty decision for the proposition that, "Congress intended § 101 to extend to 'anything under the sun that is made by man." Id (citing Chakrabarty, 447 U.S. 303, 309). However, the Federal Circuit then went much farther than Chakrabarty's holding by saying,

8

"Thus, it is important to read into § 101 limitations as to the subject matter that may be patented where the legislative history does not indicate that Congress clearly intended such limitations." Id But such was precisely not this Court's holding in Chakrabarty. Immediately following the language quoted by the Federal Circuit, this Court continued to say in Chakrabarty that, "[t]his is not to suggest that § 101 has no limits or that it embraces every discovery." 447 U.S. at 309 (emphasis added). In support of that statement, this Court referred to Flook, Benson, Funk Bros. and other cases, and not to any legislative history. Thus, this Court's precedent clearly shows that there are indeed limits on patentable subject matter beyond those expressly stated by Congress. The Federal Circuit's ruling to the contrary was error.

Indeed, Alappat was a highly divided en banc decision, wherein several members of the Federal Circuit recognized that the majority was making a severe judicial error. Id at 1552, 1562 (Archer, C.J., dissenting). Chief Judge Archer said, "Losing sight of the forest for the structure of the trees, the majority today holds that any claim reciting a precise arrangement of structure satisfies 35 U.S.C. §101.... [T]he rationale that leads to this conclusion and the majority's holding that Alappat's rasterizer represents the invention of a machine are illogical, inconsistent with precedent and with sound principles of patent law, and will have untold consequences," and that "the majority's test under § 101 that looks simply to whether specific structure is claimed is [ ] inconsistent with Supreme Court precedent"). Id

Since Alappat, the Federal Circuit has continued its expansion of patentable subject matter through the implementation of its formalistic approach. State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998) (holding that anything with a "practical utility" is

9

patentable subject matter); AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999). The effect of this expansion has been to eliminate the Benson-Flook- Diehr limitation on patentable subject matter, because any semi-competent patent drafter can easily craft claims that have a "practical utility" while being substantially directed to the use of a law of nature, abstract idea, natural phenomenon or mathematical formula. The Federal Circuit believes such claims are patentable subject matter. This Court's precedent mandates that they are not.

C. SINCE SOFTWARE DOES NOTHING OTHER THAN EXECUTE MATHEMATICAL ALGORITHMS, IT IS NOT PATENTABLE SUBJECT MATTER AND, THUS, CAN NOT BE A “COMPONENT[] OF A PATENTED INVENTION” UNDER § 271(F).

This Court has repeatedly addressed the issue of whether software is patentable subject matter. First, in Benson this Court said:

The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an "algorithm." The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications.

10

409 U.S. at 65. This Court rejected in Benson the patentability of a software patent directed to a specific application of a generic formulation because "the mathematical formula involved here has no substantial practical application except in connection with a digital computer." Id at 71. The holding of Benson is properly applicable to all software, because a computer program, no matter what its function, is nothing more or less than the representation of an algorithm. It is not conceptually different from a list of steps written down with pencil and paper for execution by a human being. In no uncertain terms, this Court in Benson held that software, which contains and upon command executes algorithms that solve mathematical problems through the use of a computer, was not patentable under § 101.

Then, in Flook, this Court held that software could not become patentable subject matter simply by adding to the proposed claims some "post-solution activity." 437 U.S. at 590. This Court explained:

The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques. The concept of patentable subject matter under § 101 is not "like a nose of wax which may be turned and twisted in any direction...."

11

Id. (citing White v. Dunbar, 119 U.S. 47, 51. (1886)) Thus, claims to implement some method or accomplish some process substantially through the use of software, which does nothing more than encode and execute upon command an algorithm to solve a mathematical problem, are no more patentable than direct claims to software that solves such a problem itself.

Further, just as claiming fifty or even a thousand laws of nature is no more patentable than claiming a single law of nature, no form of software, regardless of how many algorithms or forumlas it is comprised of, is patentable because it will always be merely and solely made up of mathematical algorithms.

This Court's decision in Diehr upheld the holdings in Benson and Flook, and merely found that the claimed invention in that case was not substantially directed to just software, but instead was - in totality - directed towards an "industrial process for the molding of rubber products," which is undeniably included within the realm of patentable subject matter. 450 U.S. at 191-93. Had the applicant sought to claim the software used in that process by itself, however, this Court would have most assuredly found it to be unpatentable subject matter just as it had in Benson and Flook.

Thus, this Court's precedent repeatedly sets out that software, which is nothing more than a set of instructions an algorithm to be performed by a computer in order to solve some mathematical problem, is subject matter than is not patentable under § 101. In this case, we need not address whether the alleged "component[] of a patented invention" under § 271(f) is substantially software or not, because the parties concede it is software per se. As such, since it is not patentable subject matter under § 101, it likewise can not be a "component[] of a patented

12

invention" under § 271(f) and the Federal Circuit's holding in this case to the contrary was judicial error.

CONCLUSION

For the foregoing reasons, this Court should reverse the Federal Circuit's decision.

Respectfully submitted.

EBEN MOGLEN

DANIEL RAVICHER
RICHARD FONTANA
Software Freedom Law Center
[address, phone]

December 15, 1995

13


1 Pursuant to Supreme Court Rule 37.6, amicus states that no counsel for a party authored this brief in whole or in part, and that no person or entity, other than amicus curiae and its counsel made a monetary contribution to the preparation or submission of this brief. General consents of the parties to the filing of any and all amici briefs was received by this Court on November 28, 2006, from counsel for the Petitioner and on November 30, 2006, from counsel for the Re- spondent.


  


SFLC Files Briefs with Supreme Court Arguing Against Software Patents | 406 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Correcttions here
Authored by: darkonc on Friday, December 15 2006 @ 02:18 PM EST
This is the place to file your correct tons. If you think PJ made a mistake, you can mention that here too.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

OT Here
Authored by: SpaceLifeForm on Friday, December 15 2006 @ 02:20 PM EST
Make any links clickable.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

One weakness in the argument - a BIG weakness
Authored by: Anonymous on Friday, December 15 2006 @ 02:21 PM EST
Computer algorithms are not just about math - if that were the case, we wouldn't
need anything more than programmable calculators.

This is one of the reasons that the Comp Sci departments at many universities
and colleges have been split off from the Math departments. Also, you have MIS
degrees that are usually through the Business Schools, and not the Math or Comp
Sci departments.

Computer-based processes and methods aren't all about math.

Such a prohibition of patenting "software" as specified within the
brief would still be ineffective even if you reject this idea. Claims within a
utility patent could be written to include "use" of software. The
process would still be patentable. All the patent writer would have to do is
specify the use of software as the "preferred embodiment" but not the
only one.

[ Reply to This | # ]

Off Topic
Authored by: pfusco on Friday, December 15 2006 @ 02:22 PM EST
Clicity clacks please

---
only the soul matters in the end

[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: Anonymous on Friday, December 15 2006 @ 02:30 PM EST

It's never going to happen. All it takes is a well reason argument that
businesses will lose money and/or have no incentive to innovate that would
persuade the court to rule in favor of patents.

Equally frivilous to software patents are Pharmaceutical patents. The reason
being is that Pharmaceutical research is based upon other published, research.
Their work is not done in a vacuum. Most of what they do, others have done
before them or others can do themselves by looking at the literature. However
"public domain" the research is, the U.S. still grants patents to
Pharmaceutical companies and tries very hard to uphold these patents. The
Federal government is unwilling to force competition upon the Pharmaceutical
industry for fear that whey will not "innovate." Merk has used that
excuse for the high prices of their drugs. Though Merk has yet to explain their
lack of innovation.

Judges would have to think outside the box and see how eliminating patents would
spur competition and create a vibrant market.







[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: Anonymous on Friday, December 15 2006 @ 02:30 PM EST
Perhaps I'm naive here, but how can the US possibly claim that their law
applies outside of the US. Haven't they heard that there are other countries? Or
are actions in the US subject to the laws of other countries? The only time I
can imagine a law out of jurisdiction is when it's the subject of a UN mandate -
for instance torture committed in other countries might be prosecutable in the
UK. I think it is in Belgium. And sex with children, committed in Thailand is
still subject to prosecution in the UK.

Does the US claim that laws regarding patents have the same standing as those
regarding torture or child sex?

[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: Anonymous on Friday, December 15 2006 @ 02:50 PM EST
From http://patentlaw.typepad.com/patent/2005/07/federal_circuit.html
"On appeal, Microsoft argued that (i) software code cannot be a “component”
under 271(f) and (ii) the 2nd generation copies are not “supplied” from the U.S.
Rather, Microsoft argued that those 2nd generation copies are manufactured
abroad."
So Microsoft is NOT violating the patent by writing the software - the foreign
distibutors are: they are selling it, but, again, outside of the US jurisdiction
so everything is OK.

Microsoft's hypocrisy: "we love software patents inside United States, but
we do hate them abroad".

Cute.

[ Reply to This | # ]

Monopolies should be banned altogether
Authored by: Anonymous on Friday, December 15 2006 @ 03:14 PM EST
at the very least, IF the idea of legally protected monopoly really should be
allowed at all, then patent law should read:

1. You have one year (possibly with a one year extension, if a product is under
development) after an approved patent application to show you have a commercial
product. If not, the patent expires.
2. If you do have an actual product within that time, you'll get a five year
monopoly, sorry, patent.
3. After that time, the patent is expired. No exceptions.

[ Reply to This | # ]

copyright
Authored by: Anonymous on Friday, December 15 2006 @ 04:22 PM EST

"The Software Freedom Law Center -- chaired by Eben Moglen, one of the world's leading experts on copyright law as applied to software "

I was unable to find any mention of copyright in the brief. Is the fact that software can be both copyrighted and patented relevant to the issue of the legality of software patents?

-----------------
Steve Stites

[ Reply to This | # ]

  • copyright - Authored by: Aim Here on Friday, December 15 2006 @ 04:37 PM EST
    • copyright - Authored by: Anonymous on Friday, December 15 2006 @ 04:47 PM EST
      • copyright - Authored by: Anonymous on Friday, December 15 2006 @ 05:13 PM EST
SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: webster on Friday, December 15 2006 @ 06:28 PM EST
.
1. Great article today. The brief is brief, simple, clear, reasoned. It will
educate if not prevail. Discussion was enlightening also re patentability, DNA,
math, etc.

2. Note that M$ argues that US patents should not previal for their use out of
the country. Moglen's amicus brief argues on the M$ side that US patents should
not previal for their use out of the country because they are software patents
and should not prevail even in the US. M$ makes a jurisdictional argument.
Moglen makes a patentability argument.

3. Therefore Moglen's argument is really not on the jurisdictional point, BUT
it really shakes things up and persuades one not to spread dubious, contentious
patents.

4. Courts hate to consider issues that were not raised. The amicus brief can
be ignored because the parties didn't raise the patentibility issue[iir]. The
Court can do what it wants: 1) rule on jurisdiction only; 2) rule on
patentibility only [only if it finds that software is not patentable]; 3) Be
really helpful and rule on both.

5. One would think that conservative court would be loathe to spread patent
terror to software and abroad.

---
webster

[ Reply to This | # ]

Invention vs. Discovery
Authored by: Anonymous on Friday, December 15 2006 @ 06:48 PM EST
So if I summarize correctly, software is mathematics and algorithms are
expressions of laws of nature. They are discovered rather than invented, and
are not patentable because you can't claim exlusive use of nature.

This argument would render all "inventions" unpatentable. If I invent
a new ceramic, or pharmaceutical, or truss for bridge construction, I am only
discovering that arranging or processing the original materials in a certain way
has desirable properties, I am not creating new natural laws of physical
chemistry or mechanics or biology.

And if the objection is specifically to embodying mathematics, from my
experience there is less mathematics in software engineering than in other
disciplines that call themselves engineering.

[ Reply to This | # ]

Software Patent Aspects
Authored by: Anonymous on Friday, December 15 2006 @ 08:19 PM EST
Usually one expects with a patent a concrete example of the invention.

With software you can do that too. But it would look slightly different.

The "software" would probably be quite substantial in many cases, in
terms of Lines of Code.

It would most likely be bound to a particular platform.

It would need to come with complete setup instructions.

It would itself be obsolete not before long.

Just something to consider. But it illustrates the difference to the
conventional picture one has of inventions.

[ Reply to This | # ]

A numbers game
Authored by: Anonymous on Friday, December 15 2006 @ 08:35 PM EST
Yup nothing but numbers. Us old timers remember nothing but numbers every time
we had to read a core dump to find the error in the logic. A core dump was
usually in hexcode, numbers based on 16. IPv6 is in that form and so are most
devices addressed by in the computer. Everything boils down to a numbers game
and ultimately binary code, on, off, yes, no, black, white with no maybe or
anything in between.

[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: pooky on Friday, December 15 2006 @ 10:07 PM EST
This is a wonderful argument and it is the correct one, however even if the
supreme court takes action to correct the federal circuit court's error, which
will plunge the US tech industry into crisis as everyone's billion dollar
portfolios of software patents are turned into nothing with the stroke of a pen,
the US Congress will likely IMHO come under tremendous pressure from many in the
software industry to quickly fix the problem by passing a law that says
unambisuously that software is patentable.

And that law will have to be challenged all the way to the supreme court so that
the argument over whether congress has the authority to define what is
patentable has any limits whatsoever, and I suspect that the current makeup of
the court will say that congress can pretty much write whatever law it wants as
long as it doesn't violate the constitution. It's a stretch to say the least
that software being patentable violates a right granted the US constitution.

--pooky

---
Many Bothans died to bring us this information.

[ Reply to This | # ]

Unfortunate wording...
Authored by: greyhat on Friday, December 15 2006 @ 10:15 PM EST
It's a shame that one of the sections was titled:

SINCE SOFTWARE DOES NOTHING OTHER THAN EXECUTE MATHEMATICAL ALGORITHMS,...

Software doesn't execute anything, and wording it that way is unfortunately
misleading. It's stated again more correctly at the end of the brief where it's
explained that software is simply an algorithm implemented by a piece of
hardware. But sadly this wording in the heading gives the false impression that
software is capable of doing anything on its own (executing an algorithm, rather
than *being* an algorithm executed by something else).

Other than that though, it was good news to see. Too bad the Court has very
little reason to make the case more complicated by overturning decisions neither
party asked them to.

---
Give me the knowledge to change the code I do not accept, the wisdom not to
accept the code I cannot change, and the freedom to choose my preference.

[ Reply to This | # ]

Cultivating a bad boy image
Authored by: Anonymous on Saturday, December 16 2006 @ 12:30 AM EST

The link below is a commentary on corporate employees and lawyers who deliberately misbehave and hurt people as a consciously chosen lifestyle or business practice.

It might explain a lot of what's been going on lately. It also points out those who oppose this kind of thing.

"The Intentional Lawyer Who Stole Christmas"

[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: pdp on Saturday, December 16 2006 @ 12:37 AM EST
Not all logic is created as equal.
Not all logic is even regarded equal.
Legal equality is not even equal
equality is not always legal
Perfectl logic to any mathematician.
Ever tried to explain math to a lawer ?
Even 1 + 1 = 2 is not logic, merely a representation of a model expressed in n
arbitrary code.
What if any symbol within that '('1 '+ '1 '= '2 ) expression can have any
arbitrary value.
unexplicable to any lawyer I guess ... ;-)

cc

---
I am not a number,
I am an individual with a unique number.

[ Reply to This | # ]

The Federal Circuit
Authored by: rsteinmetz70112 on Saturday, December 16 2006 @ 02:05 AM EST
The Federal Circuit is the problem.

The structure is all wrong. If there is to be a specialist court it should be at
the lowest level, not an appeals level.

The problem is that all patent appeals are focused through the lens of the few
judges sitting on the Federal Circuit who are largely drawn from the patent bar.
The mere fact that a single segment of the bar is providing the judges for an
appeal court should raise questions.

If patent cases were appealed through the regular process the various circuits
would no doubt come to different conclusions regarding software patents and the
Supreme Court, informed by the jurisprudence below, would no doubt resolve the
discrepancies in a reasonable manner.

Unfortunately the Supreme Court is hampered by the singular view of the Federal
District, which is a singular anomaly of the Judiciary.

The Federal Circuit should be abolished or at least stripped of it's
jurisdiction over patent appeals.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

The math line of thinking
Authored by: Anonymous on Saturday, December 16 2006 @ 02:59 AM EST
I agree that software is all math. However, I think there is an implication that
somehow other creative works are not mathematic in nature, but that is wrong.
All forms of communication are math.

If you think about it, the article above is really just a complicated mathematic
statement. All reasonable predicates are essentially statements of equality, all
subjects of a sentence can be said to be variables, and all adverbs,
prepositions and such can be said to be the operators.

I'm not saying that software should be patentable. I'm saying that all forms of
creative work, including "discoveries", should not be patentable for
the same reason. It's all just math. There's a good reason it always seems
obvious in retrospect: because it is.

[ Reply to This | # ]

Hardware contains encoded software
Authored by: Anonymous on Saturday, December 16 2006 @ 05:10 AM EST
The problem is not to decide whether math and software are the same, than to
clarify what distinguishes a hardware device from a program.

Suppose somebody invents a mechanical calculator which performs arithmetics.
Then the particular arrangement of gears and metal pieces, for which patents can
be deposed, encode the logical operations able to perform arithmetics.
Obviously mechanical variants can be built that encode the same program, just
like different supports can store the bits of a digital program. Such a
calculator is not a computer, if non-programmable, but still executes software.


In fact almost all usual devices executes some logical operations that do not
need to be performed by digital electronics. They are not computers but still
include programs in the form of mechanical or electro-mechanical
parts.

What is a usual patent if nothing else as a program encoded in words describing
how to arrange mater to perform particular actions?

Some physicists take the view that the whole universe is a computer executing a
huge program.

So the problem to distinguish software from hardware is
not as easy to resolve as it seems.

[ Reply to This | # ]

Phisical devices are also math, sw, unlike math, does change the state of the physical universe
Authored by: Anonymous on Saturday, December 16 2006 @ 06:04 AM EST
I'm not convincened by the software is math argument against software patents. I
agree that software is mathematics. A piece of software can be described with
mathematical rigour.

However the same applies to physical devices, these also can be described
mathematically, using the mathematical theories of the laws of nature as we know
them. Yet, phisical devices can be patented.

That software is math does not imply that they are one and the same. What sets
aside software from math is that software, when run on a computer, can change
the state of the phisical universe in a useful way. A property software, or
stricly speaking: software loaded on a computer, shares with physical devices.

So, if we feel patentability of physical devices is justified, there is some
justification for the patentability of software.

I am not neccessarily in against sofware patents. I am, though, suspicious of
software patents, and I certainly agree that the software patent system as it
exists in the US today, should be fixed or removed and is not to be replicated
anywhere else in the world. But the software is math argument does not convince
me that software should not be patentable. And frankly, I feel that it is not
going to convince a legislator either. I'd like to see stronger arguments.


[ Reply to This | # ]

Software describes, hardware executes
Authored by: PeteS on Saturday, December 16 2006 @ 06:57 AM EST
I've seen a number of posts arguing that hardware is mathematical in nature, and this is simply not so.

Hardware may be described by mathematical means (and not merely 'numerical' mathematics, of course), but it is a physical entity that actually solves some problem.

Software, on the other hand, is always a description of a solution to a problem; it is not, in itself, the solution; for that it needs some hardware to execute this description in some tangible way.

The fact that an existing machine may be used in some new and interesting way (in this case a general purpose computer and a network) does not obviate the need for the existing hardware to implement the solution. Just as sleeping in a car may be considered a new and interesting use of the car does not make this new use patentable, and nor should any description of any new use of existing devices be patentable.

An implementation of a solution that requires some new tangible device to do the implementation may well be patentable, not it's description.

At the lowest levels (for ordinary semiconductors) doping crystalline structures with different materials is not a natural phenomenon, although it may be described mathematically (and indeed is, albeit with the aid of some laws of physics), but the description does not yield the solution; the implementation does that.

PeteS

---
Only the truly mediocre are always at their best

[ Reply to This | # ]

USPTO goes further than either Federal or Supreme court
Authored by: leopardi on Saturday, December 16 2006 @ 06:57 AM EST
and patents pure algorithms, with no embodiment in hardware, software or anything other than flowcharts. As evidence, see the patent I have mentioned many times before: US Patent 6859816, Kenichi Makino, Jun Matsumoto, Masayuki Nishiguchi, Sony, Feb 22, 2005.

[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: Anonymous on Saturday, December 16 2006 @ 08:00 AM EST
Not to be annon, but forgeting if I hav an account. Tim Rue (3seas)

I find this amicus to be a very good step in the right direction. The
acknowledgement of the subject matter of software and how it is related to such
things as physical phenomenon, natural law, abstract ideas and mathmatical
algorithms.

Having briefly scanned over some of the responces here it seems there persist a
distorted view of what software is.
For instance, there is one post that argues that its not all math and this is
probably due to failure to recognize that math itself is a subtopic of the
broader scope of "abstractions". A computer is in fact composed of
switches in its most fundamental functionality, all else above it must rely on
this. A switch has well defined positions, such as on or off. These positions
set a base that can be used for math, but it can also be the base of
abstractions that fall outside the scope of "math". In either case the
switches are what the higher level abstractions are carried by.

A radio signal, AM (amptitude modulation) or FM (frequency modulation), does not
care what signal they are carring, nor does the carrier wave modulation define
the signal carried, just carries it to the point of receiving and demodulation
(removing the carrier wave).

The same carrier wave idea applies to computer. For at higher levels of
abstraction, the fundamental switch technology of the computer becomes strictly
a part of the carrier wave of the abstract expression.

This perspective does not support software patents in its exposure of
disconnection between carrier wave and what it carries. Just because the carrier
wave can be directly related to mathmatics, doesn't mean that the mathmatical
representation of the carrier defines the higher level abstract expression. But
the key point is that it is "Abstraction" not just the abstraction sub
topic of mathmatics, that IS the Subject MATTER!

And the real kicker of this software patents arguement, is that it is the use
and skill of use of abstractions that was used to error in allowing (as human
choice, not a father physics or mother nature thing) software to be patentable.
As the amicus shows...

The genuine subject matter is that of abstraction physics.
To know that abstraction are a required element of human advancement in all
fields, industries and of living in society (communication) and to know how
often abstractions are used to deceive, intentionally or out of ignorance, it
could only be benificial to the general knowledge of all men/women to
understand, recognize and know the mechanics of abstraction physics. Those who
would oppose and not benefit from such wide scope knowledge are those who
survive off of using abstractions to deceive.

Software is not patentable by its very nature and how natural law, physical
phenomenon, abstract ideas (including the abstraction of mathmatical
algorithims) are so defining of what software is. And it should be obvious and
will be with the understanding of Abstraction Physics, which when applied in the
environment of computers will enable software to genuinely be "FREE"
as anyone can and will create it as they need or find inspiration to do so. Just
as today we apply the hindu-arabic decimal system instead of teh far more
complicated and limited roman numeral system of mathmatics.

<a
href="http://threeseas.net/abstraction_physics.html">Abstraction
Physics</a> and <a
href="http://www.matzkefamily.net/doug/">see "physics of
computational abstraction" and more</a>



[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: Anonymous on Saturday, December 16 2006 @ 08:12 AM EST
I think all this discussion that software shouldn't be patentable is completely

missing the point. The point is that there is something fundamentally wrong
with certain patents, and software patents tend to fall into the
"fundamentally
wrong" category more often than others.

The official reason for having patent law is that patent law should encourage
innovation. One main effect of patent law is that it allows an inventor to make

his/her invention public without the danger of being ripped off, which makes
it more worthwhile to invent things (it is rare to have an invention that can be

kept secret once it is used). The other effect is that publishing is actually
required to get patent protection, which means the total knowledge in the
field grows which hopefully makes it easier to invent more things.

However, helping the inventor to make money with his/her invention is not
the purpose of patent law, it is only a side effect. That is important to
remember: There is no god-given law that an inventor would have to benefit
from his/her invention, that is just a side effect.

(A hypothetical alternative to patent law would be this: Anyone can apply to
become an inventor, and the state will pay him or her a certain salary for the
work they do out of tax payers money, whether they actually manage to
invent something or not. Any invention made by such a paid inventor is
public property and available freely to everyone. Such a law would clearly
encourage innovation without having any benefits for anyone who actually
makes an invention).

The problem with patent law is that it doesn't allow others to make the same
invention independently and benefit from it. The inventor has not only a
monopoly on his/her own invention, but also on inventions made by others.
Say companies A and B try to develop a cancer drug. If A succeeds one week
before B, they are given a patent, and all the hard work of B was for nothing.
It would be much fairer if A's only advantage were to be on the market one
week earlier. In this situation, B isn't in any way ripping off A, there is no
moral reason why B shouldn't be allowed to benefit from their work, but that
is what patent law does.

Another situation is inventions that are more or less trivial. Engineers are
paid
to solve problems when they are encountered. They use methods that are
public knowledge (things that they learned at a university, or just by
experience). At times they will buy ready-made solutions for a problem
instead of solving it themselves. Patent law prevents them from finding a
problem to a solution that is well within their reach, just because someone
else found the same solution earlier and got a patent.

This is why software patents have such a bad reputation: Because so many
things can be patented, that a good software developer will regularly develop
himself from scratch again without even thinking about copying someone
else's invention. If you look at the average software patent, software
developers will find it much easier to find their own solution to a problem
than to read and understand a software patent!

Lastly, inventions can be highly overvalued, and this happens especially in the

area of software patents. It is one thing to make an invention, and it is quite

another thing to turn it into something that actually works. In the area of
software, the "turn it into something that actually works" is
protected very
nicely and very deservedly by copyright law. The "invention" is
usually just a
tiny amount of the investment done, but patent law gives it a ridiculous
amount of value.

If I come up with a clever idea, and then spend twelve months writing
software to implement it, then copyright law protects me by not allowing you
to copy the software that I wrote. It doesn't prevent you from spending twelve
months yourself to write similar software. On the other hand, the five minutes
spent on having a clever idea which I could patent means that all your hard
work is worth nothing. Even if I never actually did implement the software,
your hard work is for nothing. But this is a problem with patents in general, it

just happens more often with software patents.

I would say we should stop arguing about software patents and fix what is
wrong with patents in general. This argument that software is mathematics
and therefore shouldn't be patentable is nonsense. Most of software and
many other things shouldn't be patentable, or patents should give the owner
less power, but not because software is mathematics. Similar, efforts to find
and collect prior art are missing the point. There are stupid patents granted,
and sometimes stupid patents might be invalidated because prior art is
found. But it doesn't make sense that I should be granted a patent for a trivial

idea, just because I was the first to come up with that trivial idea. These
arguments, mathematics and prior art, are just using technicalities against
something that is fundamentally wrong.

[ Reply to This | # ]

Wrong form of "IP" ?
Authored by: joef on Saturday, December 16 2006 @ 11:26 AM EST
Since "IP" is a commonly used umbrella term, I thought it might get
your attention!

The nature of the technology that gets patented under current USPTO standards
seems much better protected by two other classes of "IP". Trade
secret to protect the fundamental aspects involved and copyright to protect the
specific expression. Those, plus contract terms (not EULAs) that enhance the
protection of the trade secret aspect.

Then, if the exploiter of the technology wants the protection, he must pay the
price of obtaining well-crafted contracts and rigorously enforcing them. Witness
the AT&T contracts for Unix: Well written, yes, but rather poorly enforced.
But once the concept(s) become released into the wild, there would be nothing to
prevent another embodiment starting from scratch. And there would be no penalty
for independent "invention" of the concept, so long as the
"expression" doesn't run afoul of copyright law.

[ Reply to This | # ]

Be careful about definitions.
Authored by: Anonymous on Saturday, December 16 2006 @ 12:02 PM EST

The assertion by the Software Freedom Law Center that:

“I. Software Cannot Be A “Component[] Of A Patented Invention” Under § 271(f)
Because Software Is Not Patentable Subject Matter Under § 101.”

contradicts the Supreme Court:

“In contrast, the respondents here do not seek to patent a mathematical formula.
Instead, they seek patent protection for a process of curing synthetic rubber.
Their process admittedly employs a well-known mathematical equation, but they do
not seek to pre-empt the use of that equation. Rather, they seek only to
foreclose from others the use of that equation IN CONJUNCTION WITH all of the
other steps in their claimed process.” Diamond v. Diehr, 450 US 175, 187.

The Federal Circuit was somewhat confusing when it ruled:

“Without question, software code alone qualifies as an invention eligible for
patenting under these categories, at least as processes. . . Thus, this software
code claimed IN CONJUNCTION WITH a physical structure, such as a disk, fits
within at least those two categories of subject matter within the broad
statutory label of “patented invention.”

Note what the Supreme Court said in Diamond v. Diehr about patent “claims”:

“We think this statement in Mackay takes us a long way toward the correct answer
in this case. Arrhenius' equation is not patentable in isolation, but when a
process for curing rubber is devised which incorporates in it a more efficient
solution of the equation, that process is at the very least not barred at the
threshold by 101.

In determining the eligibility of respondents' claimed process for patent
protection under 101, their claims must be considered as a whole. It is
inappropriate to dissect the claims into old and new elements and then to ignore
the presence of the old elements in the analysis. This is particularly true in a
process claim because a new combination of steps in a process may be patentable
even though all the constituents of the combination were well known and in
common use before the combination was made. The "novelty" of any
element or steps in a process, or even of the [450 U.S. 175, 189] process
itself, is of no relevance in determining whether the subject matter of a claim
falls within the 101 categories of possibly patentable subject matter.” Diamond,
supra.

One must be careful to define “Component[]” in context.



[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: MrCharon on Saturday, December 16 2006 @ 12:51 PM EST
Very intresting reading about a meeting on Software Patents back in 1994.

A lot of big names here, including Microsoft and IBM.

---
MrCharon
~~~~

[ Reply to This | # ]

question on footnote 1
Authored by: grouch on Saturday, December 16 2006 @ 06:03 PM EST
Footnote 1 says, in part:

General consents of the parties to the filing of any and all amici briefs was received by this Court on November 28, 2006, from counsel for the Petitioner and on November 30, 2006, from counsel for the Re- spondent.

Does this mean the SFLC had to obtain consent from Petitioner, Respondent and the Court before the brief could be admitted? Or am I reading that wrongly?

---
-- grouch

http://edge-op.org/links1.html

[ Reply to This | # ]

SFLC Files Briefs with Supreme Court Arguing Against Software Patents
Authored by: Anonymous on Sunday, December 17 2006 @ 08:04 PM EST
I've had a chance to think about it and I think that
attorney Moglen knows what he is doing. He knows RMS.
How knows GNU. He knows Linux. He knows the LAW.
He knows a lot more than I do, in total, about all of
these things. My guess is that he is choosing correctly
the next step to take.
:)


[ Reply to This | # ]

software is not a new thing
Authored by: Anonymous on Monday, December 18 2006 @ 03:20 AM EST
One thing that bugs me about this whole business was repeated in some of the
linked material -- the assertion that software is a new thing.

Software is not new. Just because we can now run it at high speed does not mean
it is a new thing. A human is a computer (and "computer" even used to
be a job description) and a list of instructions is a program for the human to
perform. The use of stacks alters nothing because we all know we have placed
stacks of reference manuals on our desks as we pursue some of the more
complicated procedures.

Software is not new. No way is it new. The argument that it is new is spurious
and is the only prop I can think of under the whole concept of patenting
software.

I think, one thing is new, and it is the ability of non-professional
mathematicians to play around with the idea of an abstract machine. This is a
problem because we have a lot of patent lawyers who don't have the mathematical
training to distinguish an abstract machine from an implemented machine.

If software can be patented, the patent documents must include the source code
itself, and must specify the operating context (API and often even the OS).
Extending the patent to other languages and contexts must require the source
code of the same, and the source code must compile and it must run in some
meaningful way related to the patent contents. Understanding this kind of thing
makes it clear that copyright is almost always the more appropriate means of
establishing the temporary monopoly allowed by the Constitution.

The fact that the world is running out of traditional ways for people to make
money that don't involve patronage and tolls is should not be allowed to sway
the courts. We can find new ways to make a living, including such things as
(gasp) sending people from "advanced" countries to help the "less
advanced" countries to solve problems, devoting resources to solving
general pollution problems and even heat pollution problems, etc.

The people who have obtained the billions must be brought to recognize that they
have a specific and financial interest in the future viability of their planet.

[ Reply to This | # ]

Scary!
Authored by: Anonymous on Monday, December 18 2006 @ 06:15 AM EST
I first misread the title as *SCO* appealing to the Supreme court! :)

After those articles with SCO "appealing" both Kimball and Wells, I
must say I was still *more* gobsmacked until I read again...

*shivers*

[ Reply to This | # ]

Is it possible to write a program that will write every other possible program?
Authored by: Anonymous on Monday, December 18 2006 @ 10:23 AM EST
It seems to me that I could just recursively add 1 to a variable and come up
with every possible program for a computer. Maybe I should patent it.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )