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| The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against |
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Saturday, September 26 2009 @ 09:02 PM EDT
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I asked if it would be possible for the law firm of Wolf, Greenfield & Sacks to write an article defending business methods and software patents for Groklaw, and they were nice enough to agree to do it. Steven J. Henry and Eric L. Amundsen, to be specific, were nice enough and brave enough to step up to the plate and explain why, in their view, based on their experience as IP attorneys, the sky will not fall no matter how Bilski is decided.
I know, and they know -- because I made it clear -- that most of us here are opposed to software patents and disagree with their position. But they came anyway, and I appreciate it. Thank you both. Please treat them as my guests at this party, with respectful attention, and then explain to them in return, please, all the reasons you do or do not agree. References are ideal for expanding and deepening the conversation. It's particularly pertinent now to be having this discussion because the Supreme Court is going to be deciding the appeal of Bilski, and I thought it would be useful to consider a bit of the history of those kinds of patents and the cases that led to them being thought of as patentable subject matter. Groklaw can't file an amicus, but at least we can contribute to thinking about the issues. Think of it as tossing a note in a bottle into the ocean. You just never know who you might reach. When I go down the Patently O list of Bilski briefs now being filed with the Supreme Court, I don't see the pro-software/methods patents proponents even addressing the needs and concerns of the FOSS community. I will simply point to the single most important reason FOSS developers and users of GNU/Linux operating systems are so opposed to software patents -- they violate and block a new development model, that of Open Source. That is the one argument I don't see being addressed. The Internet is built on Open Source. Every time you use Google or Amazon, you are using Open Source. So I believe the economy can be affected by Bilski in ways not everyone has thought through sufficiently. I'll put some further remarks after the article, so as not to skew your impressions on first reading by answering the article before you even read it. But after the double row of stars, I'll amplify. My goal is that both sides of this discussion have a deeper understanding of the other's point of view. In addition to any comments that may be posted here in response, you will find a long thread of comments -- there are over 400 comments on that article alone as I write this introduction -- specifically on whether software is math and hence unpatentable subject matter here. If anyone wishes to re-post their best arguments here, that would probably be helpful, so as to have them all in one place.
So with that introduction, let's first let the two patent attorneys present *their* arguments for business methods patents and software patents.
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The Arguments For Patents for Business Methods and Software-Implemented Inventions
By Steven J. Henry and Eric L. Amundsen
Defining the Debate
Let’s begin with something on which we—hopefully—can agree. Since a landmark 1998 U.S. court decision granted patentability for inventions in the fields of business methods and software-implemented inventions, a controversy has raged between those in favor of patents for such inventions and those believing these patents are, at least, unnecessary and, at most, an impediment to innovation.
Recognizing that the majority of Groklaw readers are in the latter camp, the goals of this article are to present a historical perspective through which to view the debate, clarify some of the facts surrounding it, and provide answers to the primary arguments in opposition to the idea of allowing patents on business method and software-implemented inventions.
Through the Looking Glass: a Historical Perspective
How Large the Tent?
The purpose of the patent system is to encourage innovation, disclosure of ideas, and investment in inventions. From the beginning, a central question has been “What kinds of things should be eligible for protection?” Philosophically, the approach in this country has been that the tent should be large: as it was put by the U.S. Supreme Court in one of the first biotech patent cases, Chakrabarty, “Congress intended statutory subject matter to ‘include anything under the sun that is made by man’.” However, the Court has also noted certain exceptions, on policy grounds, for inventions of a sort that nobody should be able to appropriate personally: laws of nature, scientific principles, and abstract ideas.
Why the breadth of types of inventions that can be patented? Aside from the fact that the evolution of new technologies is impossible to forecast, the underlying theory is that the public benefits and loses nothing. A patent may not subtract from that which was already available in the public domain before the invention was made; it only enriches the public. That is, in return for the right to exclude others for a period of time, the inventor discloses to the public something nobody had previously known. The public cannot directly use the invention during that period of exclusion, but it can do so later, and, even during the exclusionary period, the public can be spurred by the invention to seek alternatives to it or improvements that may merit their own protection.
Many patents (and by extension the inventions which they protect) are clearly valuable based on the amount of money that entities are willing to spend to license or purchase patents. If one assumes that but for the applicant’s contribution, the inventive advancement that a patent represents would have not come about, or at a minimum would have been significantly delayed, then the patent does not represent a taking from the public, but rather a contribution of something new.
When this country was founded, there was considerable antipathy to monopolies. Such attitudes traced back to when the British crown granted exclusive rights to its favorites. For example, a monopoly—or patent—on salt. Patents on inventions were a different animal. They were an extension of a person’s natural right to “own” his or her creative thoughts. The only kind of patents our founding fathers blessed, therefore, was a monopoly over new intellectual work product.
As cast in the Constitution, Congress was given the power to provide for limited times, to authors and inventors, the exclusive rights to their contributions to “science” (the word used for natural philosophy, which is the basis for the copyright system) and the “useful arts” (the term embracing all manner of commercially beneficial invention.) Instead of limiting freedom of commerce and raising prices, these exclusive rights promised, among other things, to encourage inventors to disclose their ideas and to offer the public free use of such new inventions after a reasonable period of time.
That still leaves the question of what should potentially be patentable. This includes both the kinds of things (i.e., “eligible subject matter”) and defining when an idea represents a large enough advance to warrant a patent (i.e., the requirements of “novelty” and “nonobviousness”.) After all, protecting trivial, inevitable advances would thwart progress.
The Inclusion of Processes
In addition to machines, tangible objects, and new chemical compositions, advances in manufacturing methods and the like—or “processes”—were considered important and justified protection. The question then naturally arose: Do we mean all processes, just manufacturing processes, or what?
In the 1800’s, a number of important inventions of the industrial revolution were perceived by their inventors to be definable, at least in part, as processes. For example, the process of modulating an electrical signal on a wire to communicate either telegraph or voice signals by wire. The apparatus was also new, but it was recognized that protecting the apparatus alone was inadequate. Others would conceive of new and different apparatus to practice the same techniques.
If you are old enough, you may remember when almost all microphones—certainly the good ones—were so-called carbon microphones that worked on a variable resistance principle. (Today, you would have to go to a museum or perhaps eBay® to find one of these.) We now use more efficient and less expensive microphones based on variable capacitance or other principles. All microphones share the generic ability to transduce sound pressure waves from the air into varying electrical signals, and it is that process that Alexander Bell originally recognized as his contribution, and which he battled through the courts to protect. Likewise, Samuel Morse sought to protect broadly a technique for signaling electrically. Neither wanted to be confined to his initial apparatus.
However, in the early 1900’s, there was a company that obtained a patent on a bookkeeping system to prevent embezzlement by waiters. The final decision in that case was interpreted as signaling that methods of doing business—as opposed to the apparatus used in practicing those methods—fell outside the patent system. That is, not all processes were embraced by the statute.
So for decades, patent attorneys told their clients that business methods could not be protected.
Fast Forward to 1998
A sea change occurred in 1998. Two cases reached the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit,” which has exclusive jurisdiction over patent law cases at the appeals level) within months of each other. In the first case, State Street Bank and Trust v. Signature Financial Group, State Street challenged a patent by a small mutual fund administrator, Signature, which claimed a computer system for administering a certain kind of mutual fund family. The challenger argued that, though the claims defined a computer system, they should be treated as an unpatentable method of doing business. The Court ruled that the claims were not directed to a method and, anyway, there was no basis for excluding business methods (whatever that term means.)
In the second case, AT&T v. Excel, AT&T was challenging a patent on a method of modifying cell phone billing records to facilitate the billing of roaming calls. The Court basically reinforced that its ruling in State Street really did apply to method claims and also made clear that there was no basis for excluding an invention because it was implemented in software. Both the programmed computer and the method it implemented were eligible for consideration (and could receive protection if novel and unobvious.) Suddenly, a new mindset was in order. Methods of doing business and software-implemented inventions could receive patent protection.
The U.S. Patent and Trademark Office (PTO) reacted. Congress reacted. The press reacted.
Notable among the PTO’s reactions, it created a special classification for business methods, sought out patent examiners with MBAs, established mandatory criteria for searching for prior art, brought in outsiders to lecture examiners on the state of the art in banking, finance, industry, and created a panel of seasoned examiners to screen all potential allowances before granting patents.
Congress, for its part, declined to alter the statutory definition of eligible subject matter, but created a personal defense to infringement of a business method patent. If the accused infringer could show that it had been using the process in its business more than a year before the patentee’s filing date, it was not liable for infringement and could continue to use the same process.
Enter Bilski
While the majority of business-method-oriented patent applications required a computer or other hardware support, some people speculated that because the 1998 decisions were silent as to such a requirement, it might be possible to obtain patents on processes that were not confined to machine implementations. For example, were it not barred by prior art, would an adjustable rate mortgage process or the issuance of a security with special characteristics be eligible?
The question is now looming large in a test case, Bilski et al v. Kappos, soon to be heard by the U.S. Supreme Court. The PTO rejected the claims in a patent application on a method for managing risk in commodity consumption transactions, using hedging techniques. Notably, the only rejection the PTO made was on improper subject matter; it did not reject for obviousness. The Federal Circuit—with all 12 judges sitting as a single panel—affirmed the PTO rejection but created a new test which requires each method claim to either tie the method to a “particular” machine or to transform an article or thing to a different physical condition/state or composition.
The new test spawned three vigorous dissenting opinions and has drawn much criticism, leading the Supreme Court to take the case, apparently to clarify the law. There have been 40 “friend of the court briefs” filed challenging the new test, and there will likely be as many supporting it.
If the Supreme Court affirms this test, many business method claims will fail. For example, all claims similar to those in Bilski which merely involve creating or changing legal obligations among parties, will not pass. To opponents of business method patents, this will be a near total victory, and to proponents, a near total loss. However, it will also mean that the methods implemented by much traditional technology also will not be protectable, for example, some involving the diagnosis and treatment of humans and animals which are not limited to specific equipment, claims to public key encryption and other information transmission processes, and numerous others. Many speculate the Supreme Court will take a less mechanistic view and leave room for challenging some business methods as abstract ideas, while allowing others as sufficiently specific and applied.
It’s fair to say the Supreme Court’s decision will be anxiously awaited from those on both sides of the debate.
Digging Deeper into Some Facts
Let’s acknowledge upfront that there are imperfections in the operations of the PTO. Much has been written about some patents improvidently granted due to lax examination in the PTO. Further, the fact that certain patent claims on software-implemented inventions generally thought dubious have survived litigation suggests some general imperfections in our civil litigation system. So as not to “throw the baby out with the bath water,” however, we believe these actions do not demonstrate that an overall anti-patent position is beneficial to the country.
On inspection, one will actually find that the allowance rate for patent applications for software-implemented inventions is lower than average, and that applications for business method inventions are examined under a higher, two-tier level of scrutiny reserved for them alone. For those applications that do survive examination and have claims that are still broad enough to justify litigation, few go all the way to trial and still fewer survive the withering litigation process and result in significant damage awards.
Most patents that have commercial value—whatever the field—are used for licensing and other types of business deals, or to persuade a competitor to change its product. Hence, it is no surprise that a recent study found great importance for small companies in patents for software-implemented inventions. R.J. Mann, “Do Patents Facilitate Financing in the Software Industry?,” Texas Law Review, March, 2005.
As practitioners, we represent parties with highly varied interests: one moment seeking to protect an invention and the next defending a client against a dubious charge of infringing a dubious patent. Our biases result from years of anecdotal experience. Approached with an open mind, the same economic behaviors appear to apply to the fields of business and software as in other fields. Sometimes, patents help create order and opportunity—especially for smaller businesses and universities—while at other times they are obstacles (perhaps even unfair obstacles) that competitors find obnoxious.
Determining the net impact of patents on business method and software-implemented inventions requires a data set large enough to provide statistically valid analysis. The problem, however, is that the number of granted patents in these areas which have been subjected to the exhaustive gamut of litigation, or to an otherwise intense prior art study in a PTO reexamination or other process, is extremely small. One reads about things like the I4i case against Microsoft and one is tempted to extrapolate. Not only would that extrapolation be statistically invalid, it would also be based on incomplete information.
First, the PTO filters out nearly 60% of the applications filed and whittles down the majority of others to a lesser scope than the applicant initially sought. Very few of the resulting patents end up in litigation, and about 96% of filed patent infringement lawsuits never make it to trial, being dismissed or settled far short of that point. So the lawsuits we read about in the press usually represent the instances where a patent has survived numerous attacks already, a lot of money is at stake, and reasonable people differ as to which party has the better story to tell.
In those few cases that do go to trial, we ask non-technically trained judges and juries to listen to witnesses and make a decision based on the evidence presented. Then these decisions are reviewed by a technical community which may have little knowledge of patent law and may not fully understand what constitutes prior art and what attacks have already failed. While different results might have been obtained from a technically trained judge or jury, such as striking one or more patent claims that a lay judge or jury accepted as valid, there is little empirical data on which to base this assumption.
In the authors’ experience, when there is clear and unmistakable prior art that shows the invention to have been known by the public prior to the inventor having conceived it, there is usually a withdrawal or settlement of the case. Otherwise, if there is room for disagreement and enough at stake, the fight can go on for some time and lead to results some might find scandalous or absurd. That, however, does not mean the system is broken. There will always be results with which experts will disagree, if for no other reason than they have a different concept of what constitutes obviousness.
Why Should Software-Implemented and Business Method Patents Be Treated Differently?
Many opponents of patents on software-implemented inventions and business method inventions insist that, from an economic and policy perspective, the grant of such patents is unnecessary, at least, and harmful, at worst. Based on our experiences and observations, we suggest that many of the proffered arguments would apply equally to other types of inventions. That is, most of the arguments are not specific to the software-implemented and business method categories of invention. Some arguments may be different in degree, though—e.g., difficulty of finding prior art, ability of a competitor to get a patent on a process used secretly by others for years, lack of examiners with expertise in the subject matter (financial transactions, insurance, etc.) However, our experience is that many of the advantages traditionally associated with patents on mechanical devices, chemicals, etc. also apply to patents on business methods and software-implemented inventions, and many of the concerns are based more on fear than actual data.
Because of the positive incentive aspects of the patent system, within the universe of mechanical, pharmaceutical, chemical and electrical inventions, patents are generally (though not universally) accepted as a beneficial policy or, at worst, a necessary evil. Why then, do software-implemented and business method patents stir so much debate as compared to more “traditional” patents? Perhaps there is a shift in the public’s respect for property—or at least intangible property—in general. Perhaps putting the means for copying digital information into the hands of nearly every person on the planet induces a different mindset. Perhaps the very practices of making some software available for free leads some to think it all should be free (in the economic sense, not the open source sense.) Perhaps the nature of such inventions plays a role. For example, software and information processing methods typically do not have “parts” that are viewed and manipulated on a scale visible to the naked eye. Similarly, business methods often involve the manipulation of information and legal obligations.
Yet advances in these subject areas require inventions and investment just as much as new mechanical devices. And providing incentives and protections for inventions and investments in the software and business method arenas is becoming more important to the United States with the shift toward a knowledge-based economy. New ideas and new companies expand the economy. If a new company’s flagship product is sure to be copied by domestic or foreign competition, the incentives to develop—and to invest in—the new product in the first place are significantly reduced.
That is not to say that no incentives would exist, as there may be a sufficient marketing “first-mover” advantage, but the overall incentives would be reduced. If investors are not comfortable about the non-IP advantages being sufficient to permit a reasonable return on a risky investment, they simply will not invest. Time and again one of the first questions potential investors ask us is whether there will be good patent protection available when an invention is readily copiable by competitors.
Even when the invention does not cost a fortune to develop, marketing costs may still be in the millions or tens of millions of dollars. No investor wants to back a small company that is going to have a larger competitor steal its thunder with a copycat product or service, without recourse.
Answering the Arguments Against Software and Business Method Patents
Below are some alternative reflections to some of the more common arguments put forth in opposition to the idea of allowing patents on business method and software-implemented inventions.
“Patents stifle competition, thereby impeding new businesses and raising prices for products and services.”
This criticism could be voiced for any type of patent, whether it be mechanical, pharmaceutical, or software-related. From a short-term standpoint, the statement can be true in that a patent holder can prevent entities from using their patented invention or charge higher prices as compared to those of alternative products or services. But from a longer-term standpoint, competition is promoted by the patent system because new inventions and improved products are more likely to be brought to market to challenge the status quo. If anything, the introduction of a new, improved version of a product with a patented feature will drive down the price of the pre-existing products, as they are now less desirable and a better alternative exists. It is irrelevant how much the innovator charges for the new, patented product. It did not exist previously and the public is free to refuse to pay a price it considers too high.
A system that does not encourage and reward invention and innovation, by contrast, logically leads to a lower level of competition for established technologies and can, over time, lead to higher prices and less efficient “legacy” technologies. The mere existence of a dominant player in a given market can discourage a new company from attempting to bring an inventive technology to market because of the fear that the dominant player will co-opt the invention if the invention is successful. It can “cherry pick,” avoid the expense of R&D, and offer the same product at the same or a lower price, making the innovator non-competitive. A new business has little chance of competing with the dominant player based on the latter’s lower overhead (due to having avoided the R&D expense,) possibly lower price, marketing channels, brand recognition, etc. Accordingly, while competition for an already existing invention might be increased by eliminating patents, the lack of patent protection would ultimately reduce attempts to compete with existing products and services in the first place.
“Innovation would happen without patents. Software and business methods have advanced during periods when patent protection was not available for such inventions.”
Some software developers argue that they engage in their creative activity for the joy if it, for the intellectual challenge, and for the reward of helping others or seeing the fruits of their ingenuity and labor adopted by others. That is, the psychic reward is enough. Others say that to stay one step ahead of the competition, they have to engage in continuous product improvement and do not need the patent system to protect their improvements (after all, it takes so long to get the patent that it represents an obsolete approach by the time one is granted) or to get in the way and prevent them from making desirable advances. Patents to such individuals are roadblocks preventing them from adopting good ideas from others, something they think should be freely available in the world of software development. So, whether motivated by psychic reward or the profit motive, these individuals proclaim patents unnecessary and unwanted in the realm of software.
However, unlike pharmaceutical scientists or machine tool engineers, for example, software engineers often have the ability to develop and test their new ideas without enormous overhead. In this context, barriers (such as patents) to using existing inventions may feel unnecessarily obtrusive. Additionally, software engineers have more experience with copyright protection, where ideas may be freely appropriated and the copying prohibition is limited to the code and perhaps its organization, but not its functionality. Moreover, independent creation that does not involve copying is a complete defense to a charge of infringement. In the patent context, where inadvertent infringement is still infringement, and basic ideas and processes are protectable, intellectual property rights may feel burdensome.
Many times, however, we have seen software developers change their mindset when it is they who have the great idea that took hundreds or thousands of person hours to develop into a new breakthrough product. Laissez-faire thinkers become pragmatists, either out of self-interest or in response to investor pressure, and ask us how they can protect their ideas and get investors to back them.
For business method inventions (whether relying on software implementations or not,) in addition to the complaint that “we got along just fine without them,” come the further complaints that the PTO is incompetent to examine business methods and that much of the prior art is non-public. These three complaints have a familiar ring to them. They are the same complaints we heard in the 1960’s and 1970’s about patenting software-implemented inventions. Over time, however, the PTO has built up its resources for searching for software prior art, has adopted a peer review program that allows the industry to cite prior art products and the like that might not be found in a literature search, and has hired and trained computer scientists as patent examiners.
Interested parties in every industry ask us: “How could the Patent Office have given those guys a patent on that idea? They weren’t the first to do that, anyway.” Or, “I see that X just got a patent on Y, but we’ve been doing Y in our operation for a long time. Does this mean we have to stop?” Opponents of business method patents may think they have unique complaints, but they do not. Some will cry over the lost opportunity to protect a new business method while others will be afraid that a competitor will now try to foreclose some path of development that previously might have been open to all.
For example, the insurance industry has long been a copycat industry. With little or no IP protection available to support proprietary rights, an innovator quickly sees others copying its new policy features. That could now change. An innovator might secure a new beachhead for a product and force a competitor to take a license or to tilt its products in a different direction. The lessons of theory and history suggest that the public will benefit because the variety of product offerings available to it will increase. Instead of competing solely on price, financial performance and client service, insurance companies may have to learn to be more creative and distinguishable in their offerings. Time will tell.
“Software and business method patents are too broad.”
Certainly, many overly broad software and business method patents have issued (in the sense that the claimed invention in reality was not new and nonobvious and the PTO failed to find the best prior art.) Of course, when this occurs, there are costs associated with contending with the patent and/or attempting to invalidate the patent. But overly broad claims are a consequence of the “new” and “nonobvious” hurdles being incorrectly cleared, and the fix for overly broad patents should not be the elimination of patents. Instead, the focus should be on improvements to prior art searching capabilities, and training for patent examiners and patent agents.
Additionally, overly broad patents issue in all fields, so software and business method patents are not unique in this sense. The PTO has made serious efforts to minimize such occurrences, but inevitably some number will occur. An additional challenge has been the rapid increase in software and business method patent applications after these fields became patent eligible, resulting in staffing pressure at the PTO. If you want to see the system perform better, support measures you believe will result in fewer “bad” patents and that will make it cheaper, easier, and faster to challenge patents on the basis of evidence the patent examiner has not reviewed.
“Abstract ideas should not be patentable, and therefore patents are for physical things, not software or business methods.”
The law is clear, and courts have consistently ruled that abstract ideas are not patentable. The issue here, then, is the interpretation of the term “abstract.” This has been a difficult question for the courts but, in many cases, courts have held that an abstract idea—such as a mathematical algorithm in and of itself—is no longer considered abstract when it is tied to a specific, practical application such as a structure or process. Critics of software patents often have a different view of the meaning of “abstract.” In some cases, people view software as abstract because it can be represented by logic charts. But logic charts can be used to represent mechanical devices, and software is ultimately implemented in a physical manner. In other cases, software is described as abstract because various terminology can have flexible meanings. This is a problem of clarity rather than a fundamental problem.
Business methods and systems to implement them, as well as software-implemented inventions, are inherently no more abstract than is the theory behind FM radio or data compression or a continuously variable transmission. All rest on ideas and concepts that had to come into someone’s head at some time, and all require some concreteness to bring them into the stream of commerce.
What is a “business method” anyway? What makes a method a “business” method? Is tracking your on-line activity and, from it, deducing what ads to present to you a business method? Let’s assume you answered affirmatively. I now ask, instead, about a method of minimizing the presentation of data to a computer user. Would your answer be different? They might be the same notion, packaged in different ways. We have yet to encounter a line-drawing exercise that justifies putting business methods in a category different from other inventions, in part because they exist as a category only in the eye of the beholder.
Conclusion
On balance, our experience is that the system, flawed though it may be, works reasonably well to promote innovation for the general good. Serious effort at improvement would not, in our minds, require exclusion of any specific kind of subject matter from protection. Rather, we believe more consideration should be given to prior art during the examination process, and less costly ways to challenge the validity or scope of a granted patent should be explored.
Of course, the game may radically change once the Supreme Court hands down its decision in the Bilski case. So stay tuned.
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Notes:
Chakrabarty: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=447&invol=303… Hotel Security Checking Co. v. Lorraine Co., 160 F. 467 (2d Cir. 1908). patent no. 500,071
http://www.bricklin.com/patenting.htm
http://www.bricklin.com/patentsandsoftware.htm
Steven J. Henry is a shareholder and Eric L. Amundsen is an associate at the Boston-based intellectual property firm of Wolf, Greenfield & Sacks, P.C. Henry can be reached at shenry at wolfgreenfield.com and Amundsen can be reached at eamundsen at wolfgreenfield.com.
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PJ's Additional Response:
I would suggest that anyone interested in why FOSS developers and the community in general are so opposed to software patents read Red Hat's introduction in its amicus brief in Bilski for the Appeals Court en banc review, if they wish to consider the important reasons why there is a need to adjust patent law to make room for Free and Open Source software development -- which, if you may have noticed -- is also making a huge contribution to the world's economies and deserves consideration for that reason alone. Software patents are not the source of innovation for Linux and FOSS. At the time, the court was asking different questions than the Supreme Court now is asking amicus briefs to address, but Red Hat pointed out the following in the introduction:
Open source software is now ubiquitous, touching the lives of the millions of Americans who do web searching, email, online shopping, banking, and many other everyday activities. It provides the technological backbone of many large corporations and is critical to the technology operations of the U.S. and many state governments. It is playing an important role in economic development across the globe. Even so, its nature and significance are still not widely understood.
The open source model produces software through a mechanism of collaborative development that fundamentally relies on communication of ideas by large numbers of individuals and companies. To understand this model, it is helpful to understand how software is made. Software begins as plain text "source code." Programmers write and edit source code in human-readable programming languages that allow specification of software features and behavior at a high level of abstraction. Software is commonly distributed in machine- executable "object code" form, produced by "compiling" the source code of the software. 2 Since object code consists of unintelligible strings of 1s and 0s, software is effectively unmodifiable unless one has access to its source code.
A good example of an open source project is the Linux operating system kernel, which is one of the most commercially-important open source programs and which is a core component of Red Hat's flagship product, Red Hat Enterprise Linux.3 The Linux kernel contains several million lines of source code. A
worldwide community of hundreds of contributors, including many employees of Red Hat, collaborate via the Internet in developing and improving the Linux kernel.
Open source uses a combination of technological and legal means to facilitate collaborative development and commercial exploitation. Typically, an open source package originates as a community-based project that makes its software publicly available in source code form, under licensing terms that grant very broad, royalty-free copyright permissions allowing further use, copying, modification and distribution. The Linux kernel, for example, is licensed as a whole under the GNU General Public License, version 2, the most widely-used open source license. In making source code available and conferring broad copyright permissions, open source differs significantly from traditional proprietary software. A vendor of proprietary software generally develops the software entirely in-house and provides only object code to the user under severely restrictive licenses that allow no rights to copy, modify or redistribute that code. Such vendors retain the source code as a trade secret.
The open source development model has proven to be highly effective in producing software of superior quality. Because there are many developers working as collaborators, innovation happens rapidly. Because of the many who
volunteer their time, and the availability of the source code under royalty-free licenses granting generous modification and distribution rights, the cost of producing and improving software is low. Software bugs and security problems are quickly identified and remedied. Moreover, because users have access to the source code, those users can diagnose problems and customize the software to suit their particular needs.
The open source development model originated in the early 1980s. From that time to the present, open source software has been in a constant state of innovation. Software patents, however, have not in any way promoted the innovations of open source. At the time when software was first released under open source licenses, software patents were relatively few in number and case law appeared to limit their availability. See Diamond v. Diehr, 450 U.S. 175, 18586 (1981). By contrast, it was settled that copyright law covered software. Thus the early innovators of open source software had no reason even to consider obtaining patents on their work. Moreover, since at least the early 1990s open source developers have been broadly united in their opposition to the patentability of software.
This widespread opposition is not surprising, because the open, collaborative activity at the heart of open source is fundamentally at odds with the patent system. Patents exclude the public from making, using, or selling patented
inventions. An open source developer seeks to contribute code to the community -- not to exclude others from using the code. The exclusionary objectives of the patent system are inherently in conflict with the collaborative objectives of open source.
This conflict is more than theoretical. Open source software developers constantly face the hazard that the original code they have written in good faith might be deemed to infringe an existing software patent. It is impossible for a developer to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot possibly be searched and cleared at reasonable cost. Because of the abstract nature of software patents, determining whether even a single software patent claim is infringed is particularly difficult, even for experts in computer science, and experts often disagree. See, e.g., J. Bessen and M. Meurer, Patent Failure 201-03 (2008). The complexity of software projects (open source and otherwise) is such that a single computer program is likely to implement numerous forms of functionality that could possibly be deemed to infringe large numbers of unknown patents. Since code may infringe any number of patents, there is always some possibility of a patent lawsuit that could cost millions of dollars in attorneys' fees and that could result in court orders that effectively nullify the broad grant of rights in open source licenses.
In short, the patent system is not the source of innovation in open source software. Because the system does not reward open source innovation and creates litigation risks for the innovators, the system can only hinder innovation. Thus innovation in open source software continues in spite of--not because of-- the patent system. The successes that have been built on the open source model are likely to continue. It is, however, an opportune time to address the standards that govern the subject matter limitations on patentability, because clarification of those standards will unquestionably influence the future of open source software, and the future of the software industry generally. It may be that clarification of those standards will benefit open source by reducing the risk of lawsuits and encouraging greater participation in the open source community, with associated benefits for the economy and society as a whole. 5
Keep in mind that the licenses that most FOSS software comes to us under are either the GPL or the LGPL, and patents and the GPL do not mix. (If any attorneys wish to read up on that, here's a specific page with further information on the GPL and how it works.) So arguments asserting that innovation is being encouraged by software patents don't actually apply to any GPL code. Rather the reverse. Vendors and attorneys who are accustomed to handling proprietary software may not realize how damaging patents are for the new development model. Even IBM, who really should know better, filed an amicus brief [PDF] stating that open source software innovation is encouraged by patents. It is not. Here is one footnote that surprised me mightily:22 Without the benefit of patent protection, software companies would be forced to rely on secrecy which limits the public’s ability to learn from software innovations, since patent documents are a significant source of technological disclosure. See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994) (Newman, J., concurring). Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee’s terms—which has fueled the explosive growth of open source software development. I'd like to see them prove that in a court of law, as they say. I don't believe they could. The GNU Project and Linux, the kernel, were both developed prior to the two cases this article cites, after all. And the idea that programmers in the US benefit from the knowledge patents provide is ludicrous, since everyone is terrified of reading any patents for fear of triple damages. Not to mention that most software patents are filed without the source code. They describe the process or the inventive step -- albeit in legal language most programmers find impenetrable -- but that's it. For example, take a look, if you are free to do so, at i4i's patents. They are attached to its Complaint. You will note that not even i4i claims Microsoft figured out how to do what i4i says it invented from that description in the patent application. It was available, but i4i claims Microsoft met with them and watched a demo and listened to explanations of how i4i did customXML, and *that* is how they say Microsoft learned the process. Had the source code been attached to the patent, Microsoft certainly could have learned how to do it from that. But who files source code? The idea of a patent is that knowledge is spread that way; but in reality it is not, so the public is not benefited in the way originally intended. But the deepest problem in the footnote is the idea that secrecy benefits Open Source, when actually it's the openness, the ability to see the source itself and to use it to build upon. That is the purpose of the GPL, after all, to make sure no one can take code that is under that license and pull it under the surface of the water, so to speak, into proprietary secrecy. Red Hat's code is GPL code, and they are innovating and making money too, so something is logically wrong about the ideas expressed in that footnote. I notice that they provided no examples of Open Source companies benefiting from software patents. Another amicus brief [PDF] filed with the Federal Circuit in 2008, FSF's End Software Patents' submission, addressed another problem with patents on what it termed information processing: The economics of information processing is substantively different from that of physical materials processing, such that patents on information processing create progress-hindering problems that are not created by physical materials-based patents.
There is a pharmaceutical sector of the economy, with a few dozen companies; there is an automotive sector of the economy, which is also well-defined; but the “information processing sector” is the entire economy. Every organization in the world has information on hand that needs collating and presenting. Thus, allowing patents on information processing creates infringement risk not for a small set of companies who should know the patent literature, but for all companies everywhere. With literally millions of organizations potentially re-inventing any work of software, the holder of a software patent need only search the Internet to find a party to sue. Such opportunistic, unproductive lawsuits are a hallmark of the software patent. The massive-scale liability created by information processing patents is not merely a theoretical prediction. Over the last few months alone, the Amicus tallied over fifty nonsoftware companies being sued for infringement regarding their web site or other course-of-business software, such as the Green Bay Packers, McDonald’s, Dole Foods, Kraft Foods, Caterpillar, J Crew, Burlington Coat Factory, Wal-Mart, and Tire Kingdom. See http://endsoftpatents.org/alitanyoflawsuits (visited April 3, 2008). Even this court is probably infringing some number of software patents, because it is has produced some portion of the software underlying http://www.cafc.uscourts.gov/. In fact, the last decade of software patentability has brought about so many lawsuits considered to be onerous or frivolous that they have inspired Congressional action and caused many persons having ordinary skill in the art to question the entire patent system. The point, obviously, is that when patents are so trivially granted on more and more types of "inventions", it becomes literally impossible to research whether or not you are violating someone's patent. The chill from that is real. I wish some of the proponents would answer that concern. You might also enjoy reading the amicus brief the Software Freedom Law Center filed in Microsoft v. AT&T in 2006. It explains why software patents are so damaging and why they believe software is not patentable subject matter. In the press release, it said this: "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." I would ask also that you consider how some are currently using software patents specifically against Linux and Open Source applications, as an anti-competitive weapon, which makes general statistics on unlikelihood of patent infringement litigation moot. It's real for us, and it is like an arrow pointed at the heart. Even if they stopped, which they won't, patent law is for the rich, not for individual programmers who can't possibly defend against litigation the way a large vendor can. I sincerely hope that the Supreme Court asks itself: do we want a system of law that would make it impossible for another Linux to be created? A system that benefits one type of software development, the proprietary software business model, but which impedes a competing type of development business model, Open Source?
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| Authored by: LocoYokel on Saturday, September 26 2009 @ 09:05 PM EDT |
Please title error -> correction
with details in body[ Reply to This | # ]
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| Authored by: LocoYokel on Saturday, September 26 2009 @ 09:06 PM EDT |
| Any discussion on the news picks here. [ Reply to This | # ]
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| Authored by: LocoYokel on Saturday, September 26 2009 @ 09:07 PM EDT |
Off Topic discussion here.
Keep the Important Stuff in mind and remember the HTML how to in red.[ Reply to This | # ]
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- Judge Orders Google To Deactivate User's Gmail Account - Authored by: SpaceLifeForm on Saturday, September 26 2009 @ 09:33 PM EDT
- Money talks - Authored by: Anonymous on Sunday, September 27 2009 @ 12:27 AM EDT
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- PJ - Authored by: Anonymous on Sunday, September 27 2009 @ 01:18 AM EDT
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- Slightly Off Topic - legal bid against breast cancer gene patents - Authored by: kh on Tuesday, September 29 2009 @ 05:08 PM EDT
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| Authored by: The Mad Hatter r on Saturday, September 26 2009 @ 09:59 PM EDT |
Because I believe that this argument is accurate. There really isn't any
difference. To quote PJ:
And the idea that programmers in the
US benefit from the knowledge patents provide is ludicrous, since everyone is
terrified of reading any patents for fear of triple damages.
You
see, the same is true of all of the engineers that I know. None of them read
patents, and none of them benefit from patents, whether they are designing
engines, transmissions, computerized control systems, or anything else. So if no
one benefits from the patent system, why do we have a patent
system?
Simple. Because there's money in it. There are a lot of
firms, making a lot of money through monopolistic practices, and they don't want
the Gravy Train to stop.
Every study that I have heard of on the
value of the patent system, has resulted in the conclusion that the patent
system is a drag on society, not a benefit.
---
Wayne
http://crankyoldnutcase.blogspot.com/
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| Authored by: Anonymous on Saturday, September 26 2009 @ 10:05 PM EDT |
“Patents stifle competition, thereby impeding new businesses and
raising prices for products and services.”
This criticism could be voiced for
any type of patent, whether it be mechanical, pharmaceutical, or
software-related.
And it has been. Economics studies have
found consistently that patents do not promote innovation, but do retard
economic and scientific development, in almost all fields. (Pharmaceuticals
appear to be an exception.) The very Bell and Morse patents you refer to are
documented to have suppressed the nascent industries during the patent
lifetimes. Edison's patents have an even worse history. Film and radio patents
were also detrimental to their industries, which thrived precisely where and
when the patents were invalid. (Often the US, which had very limited
recognition of foreigners' patents.)
"Other patents are just as awful and
socially detrimental" isn't an argument.
In the 1600s, IIRC, the Dutch
abolished all patents. Start by explaining why they were wrong, if you want to
wake any sort of argument.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 26 2009 @ 10:34 PM EDT |
At the low level (down among the bits), computer software is just a finite-state
automata, which is part of discrete mathematics. Mathematics is not patentable
subject matter.
At the high level, software is capable of operations of almost arbitrary
complexity. I could accept the patentability of some things that are pure
algorithms (Diffie-Hellman key exchange and LZW compression are two algorithms
that, to my mind, seem like they should be patentable just as algorithms).
Somewhere, there needs to be a clear line. All of software cannot be patentable
without patenting (parts of) discrete mathematics. If any software is going to
be patentable, there must be a bright line somewhere that separates the
mathematical part from the "art" part. (For that matter, if you read
the description of Diffie-Hellman key exchange, it looks more like mathematics
that happens to carry out a process, rather than like a process that happens to
use mathematics. It's both, and there really is a process, but it's an
essentially mathematical process.)
So, that was a long-winded rant, but here's a short statement of the problem:
How do you allow (some of) software to be patentable, without also making (some
of) mathematics patentable? Where do you draw the line, and why do you draw it
there?
MSS2[ Reply to This | # ]
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| Authored by: J.F. on Saturday, September 26 2009 @ 10:35 PM EDT |
I'd support patents in any area more if they used one hard and fast rule: No
lawyers can be involved in the writing of a patent in any manner. Period.
There's only one reason lawyers are used in the writing of patents: to abuse the
system. Look at the most obvious result of using a lawyer to write a patent: if
a lawyer writes the patent, it takes a lawyer to read the patent. That's only
making more work for lawyers. That also violates a prime tenant of patents: to
extend the knowledge in an area. Patents MUST be intelligible to practitioners
of the field.
The ONLY time a lawyer should be involved in a patent is fighting for or against
one in court.
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| Authored by: stegu on Saturday, September 26 2009 @ 10:46 PM EDT |
A good, well written article. A big thanks to the
authors for their time and effort writing it!
I would like to stress two very important points
concerning software development in particular,
points which I do not see mentioned in the article
and which make patents on software more of a problem
than patents on processes or business methods.
More points can be found, but these are two that
I consider very important for software, and that
make software stand out from other fields of technology.
The points apply to FOSS software as well as to
proprietary software.
1. Software is developed very rapidly.
The time scale of patents is way off for software
development. Twenty years is a very long time for
software, which develops at a rate mostly unheard
of in other areas of technology. With software,
nothing needs to be physically built, and testing
of a new invention can be done extremely rapidly
and easily compared to physical inventions,
manufacture processes or business methods.
In software development, a single work day for a
single programmer can result in several small
prototypes, all original work and all potentially
inventive, being created, tested and discarded for
various reasons. Redesign is quick, simple and cheap,
and original design work is easy enough to allow
"reinventing the wheel" many times over in a
typical software project without too much cost.
Protecting an idea for twenty years is unreasonable
in the software industry.
2. Software is developed individually by many people.
A tremendous amount of people worldwide are involved
in software development. Every single programmer is
to some extent a potential inventor, because the art
of programming necessarily involves a significant
creative element and a personal freedom to choose one
design over another. Code is not merely assembled from
already existing code snippets. To some extent a piece
of software is always an original work, sometimes very
much so. The number of potential individual inventors
of software is many times larger than the number of
potential inventors involved in, say, mechanical
design, electronics design, drug research, business
method development or manufacturing process development.
It is unreasonable to require that millions of
programmers worldwide investigate whether each of the
several ideas they have every day in the course of
their daily work is covered by some patent.
Perhaps some kind of protection other than copyright
is in order for truly inventive software - I am not
really competent to categorically rule that out.
However, the current patent system and its recent
application to software is unfit for that purpose.
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| Authored by: Anonymous on Saturday, September 26 2009 @ 10:48 PM EDT |
I wrote a program in college based on theories learned in control systems to
regulate the speed of a car.
Years later I wrote almost identical code to regulate the position of a
pneumatic valve. Because the terms of the two applications are so extremely
different, writing a patent on both would be possible without either knowing
that the other was identical software with only the names changed.[ Reply to This | # ]
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| Authored by: Glenn on Saturday, September 26 2009 @ 10:49 PM EDT |
Their arguments started:
"If one assumes that but for the applicant’s contribution, the inventive
advancement that a patent represents would have not come about, or at a minimum
would have been significantly delayed, then the patent does not represent a
taking from the public, but rather a contribution of something new."
To start with they are asking us, and the courts, to assume something which is
not obvious at all. If a patent holder is able to scour the internet and find
many different companies to sue using algorithms developed by many different
people independently, it would follow that the patent is either over broad or
that its development would not have been even delayed.
This is just one two cents worth.
Glenn
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| Authored by: Anonymous on Saturday, September 26 2009 @ 10:57 PM EDT |
If one assumes that but for the applicant’s contribution, the
inventive advancement that a patent represents would have not come about, or at
a minimum would have been significantly delayed, then the patent does not
represent a taking from the public, but rather a contribution of something new.
That's a pretty big assumption, and I didn't notice any
evidence presented to support it. So, let's not assume that. Let's assume
then that it does "represent a taking from the public" and draw our conclusions
from there.
You can prove anything you want if you assume its
preconditions. Let's assume the earth is flat. Let's assume that perpetual
motion machines can exist. Let's assume that fairies will send you nice dreams
at night if you are good. Let's assume that SCO is right and that Linux stole
their secret code. Why shouldn't we assume all that as well?
Here is
another big assumption that was made, but which remained unstated. The
assumption is that it is possible to set up a government office that will sort
out the "good" patents from the "bad" ones. Or for that matter, that there can
be any agreement amongst reasonable people on what constitutes a "good" patent.
There is no evidence to support these assumptions.
In the overwhelming
majority of cases that I have seen, new patents are something that you worry
about after you have a product working. Until you get to that point, you
are too focused on simply meeting deadlines to even think about whether you have
"invented" something. After you are done though, you fill out the paperwork for
a patent application so that you can collect the bonus that your employer offers
for every patent. At that point, you are simply looking to see how many patents
you slip through the system so you can collect the standard bonus, and so you
have a magic number of accomplishments you can use at your next performance
review.
The patent system is like the state planning bureaus of the old
communist countries. Quantity, not quality matters. Every one knows this, but no
one cares. Really useful information is simply buried under such an enormous
mountain of rubbish that it may as well not exist. The system is rotten to the
core.
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| Authored by: Anonymous on Saturday, September 26 2009 @ 11:10 PM EDT |
None of your arguments I think make a convincing point that patents would
increase the rate of innovation. It is clear than could be a serious barrier to
competition and could harm innovation.
The sole justification for patents is they benefit society now. The fact a have
seen no serious attempt determine or prove the optimum length of a patent in the
software industry. This leads me to believe that this length can not be
determined. If the sole justification for patents is 'congress has the
authority' then the system is unjust.
So, I ask...
What is your criteria for stating patents work?
What methodology do you have to show more innovation occurred in to comparable
industries and regions?
How long do you think optimum would be for software patents?
Given that patents are only justified by their utility (they remove liberties
otherwise reserved for people), if we can not assess the are doing their job,
why should they continue?
I see harm to my industry on a regular basis. Computers often don't
interoperate because of patents. The damages I see awarded are not my concern,
rather the massive number of features not implemented, because they require a
step that is patented. Often that step is not implemented by someone else.
Often, instead, the idea is voiced, but the feature is note implemented and an
opportunity is lost.
Free markets require standards. Software patents are the enemy of standards.
Patents disproportionately serve the interests of large inefficient actors who
wish to control the market, why should this be allowed?
Your article, shows an honest voice. I appreciate that your point about barrier
to entry is one reason I believe patents are becoming less sensible for many
industries, not just software. Until someone argues for a reasoned non
arbitrary system of time limits for patents, I remain convinced it is a system
that harms and distorts many markets without demonstrable gain.
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| Authored by: Aladdin Sane on Saturday, September 26 2009 @ 11:35 PM EDT |
What I'm not getting, is the
SCOTUS "current opinion" on software patentablity from Gottschalk,
1972 to State Street, 1998.
Gottschalk really does it for
me:
Gottschalk v. Benson, 409 U.S. 63 (1972) was a United States
Supreme Court case in which the Court ruled that a process claim directed to a
numerical algorithm, as such, was not patentable because "the patent would
wholly pre-empt the mathematical formula and in practical effect would be a
patent on the algorithm itself." That would be tantamount to allowing a patent
on an abstract idea, contrary to precedent dating back to the middle of the
Nineteenth Century.
I'm missing whether Gottschalk has
actually been overturned by SCOTUS or not, how State Street modifies it,
or whether it is still in force?
If Gottschalk has been totally
overturned by SCOTUS, can we please go back to how it was?
Another thing I
don't get, is that since State Street was decided by CAFC, and Gottschalk by SCOTUS, how does State
Street trump Gottschalk? I thought between CAFC and SCOTUS, SCOTUS
wins.
---
For a successful technology, reality must take precedence
over public relations, for nature cannot be fooled. --Richard Feynman [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 26 2009 @ 11:41 PM EDT |
It doesn't look wise to concentrate on "open source software"
to argue against software.
Patents restrict people's freedoms, open source or not.
When freedoms are restricted, it has to be done fairly and justly.
In the case of software patents it is hard to imagine a system that is fair,
since there would be so many patents to check a piece of software against,
and vice versa.
So I would put it in terms of freedom and justice, which are larger concepts
than "open source software"[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 12:00 AM EDT |
"I sincerely hope that the Supreme Court asks itself: do we want a system
of law that would make it impossible for another Linux to be created? A system
that benefits one type of software development, the proprietary software
business model, but which impedes a competing type of development business
model, Open Source"
PJ,
You are asking the wrong question. The question the Supreme Court should
ask, and won't, is should the Unitied States become a backwaters nation.
Regardless of what happens with the United States Patent system, it would not be
impossible for another Linux to be created. You are forgetting, Linux was
created in Finland. As of now, the European Union does not support software
patents.
That might change, because however, much you don't want to address politics in
Groklaw, you can not ignore President Obama's recent comment about protecting
America's "Intellectual Property", and stories about secret
negotiations with European countries regarding intellectual property, and the
claim that the negotiations are secret for "National Security"
reasons.
The point is that the next "Linux" will be created in a country that
does not recognise software patents, and innovation will go on in the rest of
the world, leaving the United States as a backwaters country.
Further, don't forget that there is a growing practice of developing code off
shore as companies cut U.S. staff. Information, in and of itself can not be
locked up, as much as a patent lawyer may wish it to be so. It is the old story
about gossip. An old woman was prone to gossip. At confession, she confessed
this sin to a priest. The priest instructed her, as her penance to go home,
take a down pillow, and scatter the feathers to the wind, then come back to the
priest. She did this, then returned to the priest. He then instructed her to
go out and gather up all the feathers. She complained this was impossible.
The priest explained that this was the nature of gossip, it was impossible to
recapture.
Similarly, information, once spread on the internet, is impossible to
re-capture. The concept of the "one click" shopping cart has been
spread to every internet user. No matter how much someone wants to collect for
"Intellectual Property" infringement, the companies that will suffer
are those in the United States that will have to pay a tax to the patent holder,
while the rest of the world freely surges ahead.
There is the basic assumption of Steven J. Henry and Eric L. Amundsen that
patents on business processes are valid, and that innovation would be inhibited
if business processes were not protected. But it is like the blindness of the
Detroit Auto Industry of a few years ago, where the executives saw everyone in
their neighbourhood driving big gas guzzling cars, so saw no need for fuel
efficient sub-compacts. Likewise a legal firm that is frequently sought out by
people who want to protect a business process with a patent, would be unlikely
to consider business process patents as anything but a good thing.
I would argue that the only reason patents on business processes are sought, is
because patents on business processes are permitted. In a level playing field
where business processes are not protected by patent, business would continue to
develop improved business processes because it is being able to run a business
better that makes the company more competitive.
It is ironic, in my personal experience, that one of the patents they reference
has to do with cell phone service and a way to determine billing minutes for
cell phone service. What the customer wants is a simple flat rate service that
will provide unlimited service. It is precisely because of AT&Ts nickel and
diming practices that I will never go back to AT&T.
I fear your lawyers are too tightly wrapped up in depending on patents on
business processes to see it for the problem it is.
Notice, in my comments I did not refer to the incompatibility between the open
software model, the GPL and patents. In my personal opinion the argument
against software patents should not depend on a particular practice, but rather
on the basic fallacy of software patents in and of themselves. Software is
nothing more than patterns of bits in a computer memory. With many computers
now able to have gigabyte of memory, the number of possible combinations is
truly large. It is unreasonable to try to protect any particular pattern as a
concept using patents, or, when you stop to think about it even with copyright.
The fact that it is unreasonable does not keep some from trying to do it anyway.
It is as stupid as patenting genetically altered grains. It is the nature of
grains to reproduce themselves, regardless of who owns a patent on them. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 12:01 AM EDT |
I object to the idea that depriving me of ideas, culture, and scientific
advancements is a "natural right". It's important to support the
creation of culture and the advancement of science, yes, but putting petty
commercial interests in the same class of fundamental human rights drags down
the whole concept of fundamental human rights.
And yes, I'm aware of the wording presenting in e.g. the Universal Declaration
of Human Rights.[ Reply to This | # ]
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- "natural right" - Authored by: Anonymous on Sunday, September 27 2009 @ 03:14 AM EDT
- "natural right" - Authored by: Anonymous on Sunday, September 27 2009 @ 09:35 PM EDT
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| Authored by: Anonymous on Sunday, September 27 2009 @ 12:22 AM EDT |
Here's a Lego Analogy:
Building software is a lot like building with Legos. With software, you build
complex programs using simple primitives and constructs in much the same way you
build a castle or bridge out of Lego blocks.
The hard part to building Legos/Software isn't the idea, but the actual doing.
Meaning it takes significant effort to actually build something out of
Legos/software.
Imagine if you could patent Lego designs the same way you can patent Software.
Let's say I patent the ideas of building a replica of a bridge or a monument out
of Lego blocks. To file for the patent, I don't even have to build or show how
to build a bridge or monument out of Legos. My effortless patents now prevent
anyone else from building a replica of the Golden Gate bridge or Mount Rushmore
out of Lego blocks.
We all know that actually building a realistic, scale module of the Golden Gate
bridge or Mount Rushmore is incredibly difficult. Patenting the idea of
building the Golden Gate bridge or Mount Rushmore out of Legos is not
difficult.
And that is the problem with software patents. Ideas for software are easy.
Actually writing a working useful piece of software that implements the idea is
much more difficult. Thus there's no good reason to protect software ideas with
software patents. Any software you write is protected by copyright, which
further reduces the need for software patents.
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| Authored by: Anonymous on Sunday, September 27 2009 @ 12:40 AM EDT |
Somebody (I think Andy Myrvold, some other reader may know for sure) has a
patent-generating business. He gets people together and they brainstorm, and
come up with ideas - dozens of ideas per day. On the best of these, the company
applies for patents - hundreds a year.
Explain to me exactly how that benefits anyone other than the
"inventors". Does it benefit customers by offering new products?
Well, no, there are no products, all there are are patent applications. Does it
advance the state of the art? Again, no. (I'd argue that anything that is
generated by such a process is prima facie obvious to one ordinarily skilled in
the art.) It's just an attempt to fence off as much of the future as possible
and erect toll booths. It does not benefit society in any way.
Now, this does not address the issue of software patents per se. But it
illustrates what's wrong with a significant fraction of software patents.
They're just speculative patents. The "inventor" has no intention of
building anything, he/she just wants to be paid because they got a piece of
paper from the USPTO.
MSS2[ Reply to This | # ]
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| Authored by: feldegast on Sunday, September 27 2009 @ 01:33 AM EDT |
"...when there is clear and unmistakable prior art that shows the invention
to have been known by the public prior to the inventor having conceived it,
there is usually a withdrawal or settlement of the case."
When this happens, is the patent invalidated? or is it still valid so the holder
can use it against someone else who may not know the outcome of original case?
---
IANAL
My posts are ©2004-2009 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: feldegast on Sunday, September 27 2009 @ 01:45 AM EDT |
Why is it that patents are granted at all when they are insufficiently detailed
and/or overly obscured by legal terminology as to prevent someone in the field
from re-implementing the patented idea?
To implement anything in software requires source code, to patent something in
software there needs to be sousufficent details to implement the patent reading
nothing but the patent. therefore shouldn't the patent include the source code
of the implemented patent?
As software patents are routinely filed with no source code, why should these
patents be granted at all? after all, the whole point of the patent system i
thought was to allow (after the patent has expired) the public to read the
patent and implement it, but without sufficient detail, this is not possible!
---
IANAL
My posts are ©2004-2009 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 02:05 AM EDT |
While, I might be inclined to agree that protecting software innovation is a
good idea, and perhaps novel business methods, and many other things, I do not
agree that the current system for patents is tenable to that goal.
Here follow my arguments.
First, 20 years was a reasonable timeframe in the 1700s, where it took months
for news to travel from Europe to America and a patented device might have a 50
or 60 year useful lifespan, or more . It was still a reasonable timeframe in th
1800s, but when the 1900s rolled around technology began to steamroll. The pace
at which technology now runs makes 20 years seem an eternity. While some things
might still benefit from a 20 year patent, it is certainly not true that
everything would. Many "devices" don't have a 50 year lifespan. How
many people are still using a DOS based Lotus-1-2-3? Now, how many people would
be using it were it granted a patent? Now of course the patent would have been
expired by now and it was a great and novel idea when it came out. I made it's
inventor quite rich, IIRC. He didn't have patent protection and you can be
assured it was reverse engineered by many. Had they been granted a monopoly for
20 years, the business software world would be very different today.
Certainly many software applications run for decades, but many others are
obsolete in a year. Even if we ignore that software is in all cases an
implementation of logic and algorithms, 20 years applied to this field would be
a death knoll to the industry. It would become an insurmountable entry barrier
to the small player. Any software application will include hundred if not
thousands of algorithms, and at least one would belong to some huge conglomerate
, and used to beat down any small player without a patent portfolio.
These are just the tip of the iceberg for the timeframe argument.
Secondly, we are now granting patents on processes like vaccines, DNA
alteration, and medical treatments. While they might be monetarily valuable, the
good of the people dictates as wide a distribution of this knowledge as
possible. I can't imagine that any of our founding fathers wanted medicine to be
patented, although many chemical formulas and medical devices were patented. I
think the line has been drawn too low, especially now in a day when a computer
can be programmed to run through chemical formulas at speeds far greater than a
human can, and we have devices that can mix literally thousand of combination in
a day. A Rich company can afford now to exhaust all chemical varieties (in a
particular "idea") in a matter of days, and come up with a patentable
"idea", by using a brute force approach. I see no creativity in such a
creation. No, I really see very little in today's world that would give most any
chemical combination a right to patent protection. The rules need to be
re-written. The same process by which chemistry is now a field where huge
corporations can afford to use a brute force approach to inventing and
"idea" is prevalent in many fields today. Software and supercomputers
has altered the patent landscape.
Third, it is no longer self-evident, if ever it was, that patents drive
innovation or the lack thereof stifles it. In fact, in the fifty or so years of
the existence of programming, huge strides both forward and backward have been
made. An industry that has changed so fast that any patented device made 15
years ago would no longer be marketable. Suppose for a moment that the first
motherboard had been patented. Consider what impact that would have had on the
the speed of development. IBM would have had to license the technology to build
their machines. Apple, would probably never have been able to come to market.
You wouldn't have had all the little Mom and Pop assemblers of PCs and certainly
there wouldn't have been the large number of players in the market for
motherboard makers, and the same trickle down to the subordinate boards applies
as well. PCs would only have begun prospering in cheap number ten or so years
ago. They might not have been anywhere near as prolific as they are now.
Fourth, all patent applications should require proof of a working model. It
might be easy to come up with the idea of a patentable software idea, but if the
person applying for the patent couldn't write a program to say hello world, he
shouldn't get the patent.
I have many more arguments that could be made, but this response is getting
unwieldy already. No I do not think that patents serve the purpose they were
designed for anymore, if ever they did. It's a different world, than it was 200
years ago. The same rules no longer apply. The patent system needs a major
overhaul. Perhaps creating a scale for how long certain inventions are
protected. Then the more specific and the more novel ideas incorporated into one
patent the longer the protection. Then additionally patents need to be specific
with proven implementations. It may be great to have an idea for something, but
you should not get a patent just because of your idea. After all the idea is the
easy part, the implementation is the hard part. It may be you can think up a
million ideas, but couldn't begin to make even a mousetrap.
-- celtic_hackr[ Reply to This | # ]
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| Authored by: btg on Sunday, September 27 2009 @ 02:30 AM EDT |
There are three important financial quantities when discussing the value of
patents. There is the costs born only by the inventor or first developer of a
product. There is also the potential profits from the idea. The third is the
cost of performing a patent search.
For drugs, the costs born by the first producer are much higher than the costs
of later copycat producers. Drug safety and efficacy studies are not cheap. On
the other hand, the potential profits are also very high. These costs dwarf the
costs of performing patent searches, so even small biotech firms tend to support
patents on the things that they do. If they have an idea that they might want to
develop, the patent search is cheaper than the latter steps.
For things like business methods or typical UI "innovations" like one
click ordering, the relative values of these quantities are very different. The
cost of trying one of these ideas is about the same, no matter who you are. You
write some code, or a business policy, and you implement it. The cost to do this
might go down a little as the industry gets acquainted with the idea, but mostly
the 10th implementer has to pay as much for implementation as the first. (Unless
he buys copyrighted code from a previous implementer, of course.) But the cost
of a patent search is much higher than the cost of these implementations. Doing
searches for every possibly maybe patentable idea that comes up during a
software development project would be stupidly expensive compared to the cost of
just writing the code. Basically nobody does it, and that is why.
Now I could actually see patents making sense for, say, cryptographic cyphers.
This is mostly because they have a very high validation cost. If a company
wished to innovate a new better cypher they would need to spend a lot of money
validating it, and then somebody might reverse engineer it. However, even in
this case, people seem to be developing cyphers under an open source
model/process in which the worst of the validation cost is spread around through
NIST contests. This means that the validation cost, and the patent search cost
is shared by a large number of researchers.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 02:51 AM EDT |
It is strange to have lawyers defend the current patent practice as lawyers are
not primary users (or victims) of the patent system. As a professional group,
however, they have managed to create a ten billion dollar a year industry out of
patents, to the detriment of practically everyone else.
Tom
[ Reply to This | # ]
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- Leeching - Authored by: proceng on Sunday, September 27 2009 @ 02:20 PM EDT
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| Authored by: Anonymous on Sunday, September 27 2009 @ 03:27 AM EDT |
Thanks, gentlemen, for taking the time to write that. I imagine it represents
substantial effort that, had it been billable, would have resulted in
non-trivial revenue.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 03:55 AM EDT |
The first fallacy is to refer to software as a invention rather than a
discovery.
Does this surprise me, frankly no, as this is what happens when attorneys
start practicing science and engineering instead of law.
The real problem with both business process and software patents is that it is
not, has never been, and never will be about promoting innovation. The
problem with this fallacy is if they told the truth, no one would support their
position, as their position is about stifling competition.
I'm a thirty year engineer and software engineer, I hold numerous patents for
inventions for real physical goods. Yet, I can't tell you how many hours of
meetings I sat thru were attorney's attempt to persuade management that the
only way to protect the business was to patent the software to "prevent
competition", their words not mine.
The problem is that most software knowledge and experience comes from
research, which is widely published and discussed. These aren't inventions
these are discoveries, that is why attorney's avoid talking about mathematics
or algorithms or that software is the embodiment of an idea and thus outside
the bounds of the patent statue, these concepts are detrimental to their
clients case.
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| Authored by: jbb on Sunday, September 27 2009 @ 04:31 AM EDT |
PJ's honored guests said:
... the underlying theory is that the
public benefits and loses nothing. A
patent may not subtract from that which
was already available in the
public domain before the invention was made; it
only enriches the
public. That is, in return for the right to exclude others
for a period of
time, the inventor discloses to the public something nobody had
previously known. ...
The reasoning here is completely
circular. It assumes the current patent
system works. The public loses
nothing only if the patent system works
and actually excludes obvious patents.
Not just patents that are obvious
to lawyers and judges but patents that are
obvious to people actively
working in the field regardless of what is in the
public record.
The rate of technological development has increased drastically
in the
past 200 years but the time limit for patents has not decreased to match
the new circumstances so the harm done by granting an obvious patent
has
increased ten-fold at least.
The fundamental assumption behind saying "the
public loses nothing" is
that for every patent, the chances of someone else
coming up with the
same idea is small. Call this factor f where f
= 0
means no one else will come up with the same idea within the time limit
of the patent, f = 1 if one other person would come up with the
same
idea and f = 1000 if a thousand other people would come
up with the same
idea within the time limit, and so on.
The f factor has increased
drastically over the past 200 years
and
with a large f factor patents
no longer Promote the Progress
of
Science and useful Arts, instead they
are a huge impediment to
technological advancement. Technical innovators know
that the
f factor in software is already very high. This is so obvious
that it is hard for many of us to believe that honest, intelligent people
would argue otherwise.
Software development is, in some fundamental
ways, different from any
other technological development because it builds upon
what has come
before in exactly the same way mathematical theorems build upon
previous theorems. In the world of software, all the wonderful,
creative
inventions of the present are built upon all the wonderful,
creative inventions
of the past and our current inventions are the
building blocks of all future
inventions. It's true that this happens to a
small extent in mechanical
designs but not nearly like what goes on in
the software world. The new
software ideas/algorithms of today
become the very words used for the new ideas
of tomorrow.
Patenting software to increase innovation makes about as much
sense as
patenting words to increase literary output.
If software patents
had been allowed during the birth of computers, then
our current level of
technological development would be utterly
impossible. Think for a moment what
the world would be like if there
were patents on:
- Linked
Lists
- Compilers
- Interpreters
- Hash Tables
- Fast Fourier
Transforms
- Jump Tables
- Quick Sort
- Regular Expressions
- Object
Oriented Programming
- Functional programming
- etc, etc, etc, (the list
could be easily 100x longer)
Software development would be totally
impossible unless one entity
held all the patents.
Finally, just as a
practical matter, the impediment caused by software
patents on innovation is
most obvious when you look at the largest
holders of software patents (IBM, and
Microsoft IIRC). THEY'RE
NOT USING THEM!. If software patents were
such a boon to
business then why are people in the software business refusing
to use
almost all the patents they hold? It is because software patents are
so
destructive to innovation that use of the large patent portfolios would
lead to mutually assured destruction (MAD) completely
analogous to the
nuclear MAD from which it got its name.
---
You just can't win
with DRM. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 04:41 AM EDT |
To find a comprehensive approach to what should and shouldn't be patentable,
we must first start with why a government institutes patents. Just as
governments are a construct made solely for the benefit of the people governed,
so to are patents. This immediately raises the question "what benefit are
the people getting in a patent." This must be the sole question used in
deciding the patentability of any construct, be it mental or physical. This is
the reason that patents require a complete, accurate, and narrow description of
the construct. This description is not for the benefit of the applicant, the
patent officer, or the court, but rather for the people so that they may
understand and expand upon the methods presented.
However, the people don't always benefit from having a codified description
of a construct. An example would be that John Doe applies for a patent for a
door nob in a door nob-less world. While this would be an amazing advance in
this door nob-less world, allowing great progress in society, even the village
idiot can walk up and tell that someone just took a nob and stuck it on the
door. Thus we have two restraints on patents: the benefit of the people, and an
unobvious method.
Now that we have the restrictions on patentable constructs defined, lets move
on to the subjects at hand. First and the most simple are business patents. If
we apply the first test, that of the benefit of the people, we will come to the
conclusion that there is a benefit to the people if there is a lowering of cost,
but not if there is an increase in cost. Already we have a situation that a
construct could not be patented, and we still have a second hurdle to cross.
The question of unobviousness presents us with a complete failure of any
possibility of granting a patent. Any person that is "skilled in the
art" will have no difficulty in recreating the construct, even without a
description of the method involved. Thus business patents, with the years of
monopoly they grant, are only a burden on the people, not a benefit.
The second subject, that of software patents, is a little more difficult.
The question of benefit to the people is difficult to prove. I will grant that
it is possible to have a clear benefit to the people, but absent a clear benefit
the application must be denied. The question of obviousness is also murky.
Anyone "skilled in the art" might be able to reproduce the method
without a description being supplied, but for some very difficult cases they
might not be able to. This again must fall under the categorical rejection of
any answer that gives a reasonable chance at reproduction without a description.
These two answers taken together suggest that software should not be patented
unless very solid evidence is given to affirmatively answer them.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 05:14 AM EDT |
| I stopped reading when I got this far:
They [patents] were an extension
of a persons natural right to own his or her creative thoughts.
How can
a person own a thought? How can a person have a natural right
to own a thought?
If I plant crops on a piece of land and you harvest them,
then there is nothing left for me to harvest. So it makes sense to say that
someone "owns" a piece of land: they have the right to plant crops on it and
harvest it. (Whether it is right for one person to own all the land and everyone
else to be dependent on them, is another question). Similarly, if I am using a
plough, then you cannot use it at the same time. But if I have an idea, and tell
it to you, then we both have an idea. We are both enriched: and there is no
"natural" reason why we should not both be enriched. Rather, there is a long
history of human progress being enhanced by people sharing ideas: and an almost
equally long history of development being stopped or slowed because people kept
ideas secret or were able to use force to prevent other people from sharing
them.
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| Authored by: Anonymous on Sunday, September 27 2009 @ 05:41 AM EDT |
These arguments are just clever moves in a game; they have nothing to do with
the real reason some people are in favor of patents.
Patents are just
another way for a few people to get richer at the expense of the rest of us. So
of course, a few people will be in favor of them. And they will hire clever
lawyers to make up specious arguments.
The real problem is not the
arguments pro and con; AFAIK every independent economic study ever conducted has
concluded that patents (all patents) are contrary to the public interest. The
real problem is that lawmakers in the USA (and several other developed
countries) do what the rich "contributors" tell them to do. Megacorporations and
patent attorneys have more money available to bribe politicians than we have.
End of story, I fear.
If the SC decides Bilski the way we'd like it to,
Congress will just change the law. We gain at most a couple of years' delay. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 06:13 AM EDT |
The article, quite correctly states:
But overly broad claims are a consequence of the “new” and “nonobvious” hurdles
being incorrectly cleared, and the fix for overly broad patents should not be
the elimination of patents. Instead, the focus should be on improvements to
prior art searching capabilities, and training for patent examiners and patent
agents.
My problem is that, the patent office particularly in the case of software
patents, has repeatedly and consistently granted patents to even the most
obvious applications. ( Amazons "one click" ordering being a prime
example, but a few thousand more exist).
Patent law is in arguably like a machine gun. Not necessarily a bad thing to own
or bring into existence, but capable of wreaking havok if used in a careless
manner. The patent office over the years has proven itself incapable of spotting
an "obvious" application. They've had years and years to get this
sorted and they've failed.
The basic problem then stems from the costs of getting these incorrectly issued
patents appealed. In effect they restrict the public access to the most obvious
ideas, leading to extra cost/complexity in "working around" the
problem by doing the same task in a non-obvious and no useful way.
let me give you an example in my specific field, which, is non software related.
A plasma cutter is a electrical machine used for cutting metal sheets. It has a
cutting torch with a metal tip, which for reasons to do with the process is
connected via a wire to the control unit. As part of the process, you need to
hold the torch a certain distance above the metal sheet. The obvious way to do
this is lower the torch until you detect that electrical contact has been made
between the torch and the sheet, retract the required distance and start
cutting. Well, don't try that .. because its patented. Ah ha. OK, well, easy
just mount it in a sliding carriage of some sort, lower it down and use a switch
to detect when it gets pushed up by physical contact with the sheet. Don't do
that. Patented. You can go along the list of methods that any half-decent
engineer could think of in an hour or two, and each one in all its variants, is
patented. The result is a land grab of the obvious, leaving those arriving late
on the scene unable to take part in the market as they discover what seems to
any normal person to be quite obvious has been granted a patent. The established
players are financially capable of defending their patents with the best
lawyers, the newcomer cannot get a foot hold.
If you gave a 9yr old a machine gun and he/she sprayed the local area with
bullets in a random way, you can either try to come up with a training programme
to ensure responsibility in their actions or take it off them.
I would suggest that the patent office has been given more than enough time to
get its house in order in relation to not approving obvious patents, they've
wreaked enough havoc now, its time to take that particular machine gun off them.[ Reply to This | # ]
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| Authored by: tz on Sunday, September 27 2009 @ 06:18 AM EDT |
They admit the USPTO is really bad about not granting patents for obvious
things. I was reviewing some stuff for an automotive bus that is EE 101 that I
found several patents on. Meanwhile, things like the intermittent windshield
wiper will occur - some little guys eventually win (i4i?), but only after a very
difficult battle.
So we are dealing with a broken system which cannot be fixed, at least within
any time constraints in this given world. Should we expand it so the errors
spread to new areas, or prefer it get cut back to do less damage.
17-20 years in the internet age? That needs to be fixed too. And RSA had a
software patent which crippled the internet and cryptography stifling innovation
for a decade. The LZW was merely something Unisys could use to be a troll by
attacking sites with GIF format images.
Should something abstract be patentable? Perhaps, but it should require
something like the effort to prove Fermat's last theorem to discover.
People "skilled in the art" duplicate patented things every weekend
fixing a bug or adding a feature. That is the problem.
First, the term of patents need to be severely reduced (perhaps in the case of
drugs that have long testing times, the clock will start with FDA approval, not
with the invention)
Second, the USPTO needs to only grant (and judges uphold) only a handful of
really surprisingly innovative patents instead of being little more than a
rubber stamp for whatever passes across their desks even if there is no
innovation and tons of prior art.
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| Authored by: Ian Al on Sunday, September 27 2009 @ 06:19 AM EDT |
I don't want to argue the benefits and drawbacks of patents or patents in
specific areas. I want to discuss patentability, what has become patentable and
whether that has been in error. That is, in return for the right to
exclude others for a period of time, the inventor discloses to the public
something nobody had previously known. The public cannot directly use the
invention during that period of exclusion, but it can do so later, and, even
during the exclusionary period, the public can be spurred by the invention to
seek alternatives to it or improvements that may merit their own
protection.
In recent decades patents have been used to exclude
people from using inventions and also exclude them from seeking alternatives.
The submarine patent is produced in secret, is encouraged to be incorporated in
international standards without disclosure and is then used to obtain payments,
not for the invention, but from the exclusion from the standard.
Many patents (and by extension the inventions which they protect) are clearly
valuable based on the amount of money that entities are willing to spend to
license or purchase patents. If one assumes that but for the applicant's
contribution, the inventive advancement that a patent represents would have not
come about, or at a minimum would have been significantly delayed, then the
patent does not represent a taking from the public, but rather a contribution of
something new.
That assumption is in error. I know of only the i4i
patent litigation where the patented material was known to the violator. Most of
the other cases rely on complex arguments over whether the invention has been
violated. The 'violator' would not have been able to benefit from the
intellectual achievement of the 'inventor' or patent owner. The patents are
clearly of value, but not as a reward for the invention. The value lies in being
able to demand a tithe for the use of the patented item rather than for the
intrinsic value of the invention. In the case of the majority of the patent
violations I have come across, the violator has had no knowledge of the valuable
invention or has had little or no alternative in order to comply with a standard
or de facto standard.
Patents on inventions were a different
animal. They were an extension of a person's natural right to 'own' his or her
creative thoughts. The only kind of patents our founding fathers blessed,
therefore, was a monopoly over new intellectual work product.
I
may be wrong, but I don't think anyone in the world has a right in law or
naturally to own thoughts in exclusion to anyone else owning thoughts. People
around the world have a right in law to the expression of their thoughts because
of copyright. They have a right in law to inventions of their own making by
virtue of the patent laws. The founding fathers did not bless a monopoly over
work product, only of creative expression and innovative
invention.
That still leaves the question of what should
potentially be patentable. This includes both the kinds of things (i.e.,
“eligible subject matter”) and defining when an idea represents a
large enough advance to warrant a patent (i.e., the requirements of
“novelty” and “nonobviousness”.) After all, protecting
trivial, inevitable advances would thwart progress.
As I noted
before, the founding fathers did not bless a monopoly on ideas. As you noted,
the U.S. Supreme Court stated that “Congress intended statutory subject
matter to ‘include anything under the sun that is made by
man’.” In other cases the Supremes have said that this does not
include the blueprints or instructions for making the invention. A business
process invention does not exist as a 'made' invention. It only exists as a set
of instructions for the implementation of the process. It could be a book of
rules for the accountant or it could be instructions crafted to automate the
process by means of a computer program. The invention is not made by either
implementation and should not be considered patentable material.
Is there a
situation whereby a computer program could be a made invention? Let's take the
old favourite of manufacturing the wonderful new material, vulcanised rubber. If
the program controls the addition of sulphur to the natural rubber and the
subsequent blending and heating into the newly invented compound then it is
indeed a part of the invention that makes the new material. However, the
computer program is not a part of the actual protectable invention. The
invention is the combination of natural rubber, sulphur and heat. The inventor
would not want someone skirting his protection by using manual methods, a food
mixer and a gas hob. Nor, an industrial complex that makes vulcanised rubber in
the same way as the computerised machine, but without the computer.
Let's look
at another computer program example. Let's look at a program that takes as its
input, data that represents moving pictures (I believe the young kids call it
'video') and uses a mathematical algorithm to reduce the video data to a much
smaller size without losing any of the information. Again, the computer program
is not a part of the invention. It is just one of the machines that could be
used to make or manufacture the data stream reduction. Can the invention be
protected by patent? The invention is the algorithm. The algorithm can only be
expressed as mathematical instructions or a blueprint on how to process the
data. It should not be protectable.
Is there a situation where a computer
program can be patentable? I do not deny that it may be possible. However, that
leads to a problem for the patent office. As with the 'vulcanising' and 'video
data compression' programs, the form of the invention must be identified. One
may start at the top and discard all the modules that provide the on-screen
human interface and the methods of getting the data into the program and out
again to a computer storage device. What is left may contain a patentable
computer invention. The further what is left is analysed, the more it reduces
towards generalised computer instructions. The moment the individual lines of
higher-level language are reached, then the opportunities for unique invention
are lost. My view is that no level of filtering of programs or modules will
reduce to an invention for which the form can be uniquely defined in patentable
form.
If you are old enough, you may remember when almost all
microphones—certainly the good ones—were so-called carbon
microphones that worked on a variable resistance principle. (Today, you would
have to go to a museum or perhaps eBay® to find one of these.) We now use more
efficient and less expensive microphones based on variable capacitance or other
principles. All microphones share the generic ability to transduce sound
pressure waves from the air into varying electrical signals, and it is that
process that Alexander Bell originally recognized as his contribution, and which
he battled through the courts to protect. Likewise, Samuel Morse sought to
protect broadly a technique for signaling electrically. Neither wanted to be
confined to his initial apparatus.
Well, both inventors would have
wanted the protection of their inventions to be as broad as possible. At the
time, the general public were amazed at the novelty of conversion of sound to
electricity and vice versa and the transmission of semaphores electrically over
long distances. With hindsight I would accept that such protection would not be
overly broad. As someone who has 'repaired' carbon granule microphones for the
telephone company (they were also the telegraph company and the postal service)
with a sharp knock on a table top I both resent your ageist remarks and object
to the notion that patents should be allowed that are broad as a right of the
patenter. Patents should only be broad enough to protect the actual invention
and not the whole field of endeavour. There has been the recent invention of a
new microphone (yes, honestly!) that converts the movement of air to electrical
signals by detecting the movement of particulates in laminar air flow by means
of laser light reflection (IIRC). All the other microphones I can think of
convert the movement of a diaphragm caused by the air pressure variations of
sound waves. Should the patent on the new microphone encompass any possible
measurement of air velocity or should it be narrowed to just measurement of the
velocities of accompanying particulate matter? I think it should be just broad
enough for the latter.
BTW, if Alexander had gained a broad patent for any
method of sound pressure conversion to electrical signals he would have stifled
the early broadcast microphones which comprised a coil on a diaphragm suspended
between permanent magnets by cotton wool and petroleum jelly. That was later
refined by supporting the edges of the diaphragm and coil by a flexible surround
or wire arrangement making the thing much more robust. Without this dynamic
microphone invention, there would have been no rock groups. How's that for
stifling innovation!
The Court basically reinforced that its ruling
in State Street really did apply to method claims and also made clear that there
was no basis for excluding an invention because it was implemented in software.
Both the programmed computer and the method it implemented were eligible for
consideration (and could receive protection if novel and unobvious.) Suddenly, a
new mindset was in order. Methods of doing business and software-implemented
inventions could receive patent protection.
In fact, the Court
should have made clear that there was no basis for including an invention
because it was implemented in software. They should have accepted the
earlier conclusion. The final decision in that case was interpreted
as signaling that methods of doing business—as opposed to the apparatus
used in practicing those methods—fell outside the patent system. That is,
not all processes were embraced by the statute. So for decades, patent attorneys
told their clients that business methods could not be
protected.
Further, they should have asked why, after all those
decades, enacting business methods by automating them with a computer program
would make any difference to whether the business methods, themselves, were
“eligible subject matter”.
A patent being valuable does not mean
that it is justified. If a patent does not meet the objectives of the founding
fathers and the Constitution then it has been granted in error. The patent
system is misused in that it is not used to protect true inventions. It is, in
the main, misused as a legal method of protecting business revenue streams. It
is used in court or by veiled threats by corporations against those who have not
attempted to employ the patents, but have 'happened upon' the patented thing by
chance, skill or knowledge of the arts. It is usually not possible for the
violator to determine from the patent text what the invention is nor that his
own invention is in violation. This effect is not what the founding fathers or
the Constitution intended. ---
Regards
Ian Al
Linux: Viri can't hear you in free space. [ Reply to This | # ]
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| Authored by: Winter on Sunday, September 27 2009 @ 06:43 AM EDT |
In a short story, the Argentine author and librarian Jorge Luis Borges (1899-1986), conceived of a
universe in the form of a vast library containing all possible 410-page books of
a certain format. This library is commonly interpreted as having all books
starting with 410 pages from 'AAAAAAAAAA....AAA', 'AAAAAAAAAA....AAB' to
'zzzzzzzz....zzz' (with spaces included somewhere.
The library of
Babel
This introduction brings us to the ultimate patent troll
library of our fairy tale. It expands on Borges idea along the lines of Gregory Chaitin. It is
an infinite library of self delimited
programs. Starting with a length determiner and then program text from '0',
'1', '00', '01', '10', '11', ...
This library is complete, it contains
every possible program (and emulates every possible computer). A companion
library contains the (possibly infinite) output of each program
(cross-referenced) or a null string '' if there was no output. We know that the
output-library is incomplete, as not every program will stop, and we cannot
predict which will not stop.
Our fairy-tale patent troll has patented
all programs in his library. That is, every possible program has been patented,
or is unpatentable because of prior art or obviousness. No new
"pseudo-inventions" in computing can be produced anymore because they all have
already been patented.
Now our troll has heard of the link between
mathematics and software. He also learned from many commentators on patent/floss
blogs that mathematics describes reality. Therefore, he now has a new cunning
plan to take over ALL of patenting, using his software patent
library.
Our troll reasons thus. Every description of reality boils
down to a physical phase or state space (in classical physics) or a Hilbert
space (quantum physics). Each invention is a point in state space (classical) or
function
in Hilbert space (quantum). Such points are just numerical coordinates
in some dimension. Programs can produce numbers, he has patented every single
program, therefore, he argues, he already has patented every single number. To
test his claims, he thinks of all numbers he can imagine, and yes, he can
invariably find a program in his library that produces this number: Sqrt(2), e,
pi etc. So our troll claims that every invention is nothing but a number that is
already produced by one of his patented programs.
After convincing his
lawyers to proceed, he quickly finds out that lawyers often have a limited
background in mathematics. In every real case he proceeds, the plaintiff can
show that the "number" describing the physics in her invention is only crudely
approximated by the program dug up by our troll.
The final straw comes
from a plaintiff who demonstrates that she can produce numbers not in the
library at will. She simply asks the troll to produce a full list of numbers in
his library, and creates a new number by Cantor's
diagonal argument. Basically, the ith decimal in the new number
is chosen to differ from the ith decimal of the ith number
of the library list. Thereby proving that the trolls patent library might cover
all of computing (and math), it only sparsely covers the real material world of
technology.
Conclusion: It is much easier to cover the space of texts
(math including programs) with patents than it is to cover the material reality
with patents. This was (intuitively) understood (or found out from expensive
errors) by those who drew up the first patent policies. The new drive to extend
patents to computing and business methods is a testament of how our education
fails us in mathematics and philosophy.
Rob ---
Some say the
sun rises in the east, some say it rises in the west; the truth lies probably
somewhere in between. [ Reply to This | # ]
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| Authored by: lastnomad on Sunday, September 27 2009 @ 06:51 AM EDT |
There are already lots of good points raised in the comments. I'd like,
however, to comment also on following fragment:
In some cases,
people view software as abstract because it can be represented by logic charts.
But logic charts can be used to represent mechanical devices, and software is
ultimately implemented in a physical manner.
The problem is not
that software "can be represented" by logic charts. The problem is that software
is logic charts, nothing more. Some programming languages ("Ladder logic"
used for PLC programming) make this fact explicit, in other programming
languages it's less obvious, but nevertheless true. The hosting computer simply
follows this logic chart blindly.
Therefore, patenting software basically
means either protecting logic chart (if the claim is narrow enough), or, as in
most widely-publicized cases, protecting broadly-claimed abstract idea. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 07:30 AM EDT |
Why the breadth of types of inventions that can be patented? Aside
from the fact that the evolution of new technologies is impossible to forecast,
the underlying theory is that the public benefits and loses nothing. A patent
may not subtract from that which was already available in the public domain
before the invention was made; it only enriches the public. That is, in return
for the right to exclude others for a period of time, the inventor discloses to
the public something nobody had previously known. The public cannot directly use
the invention during that period of exclusion, but it can do so later, and, even
during the exclusionary period, the public can be spurred by the invention to
seek alternatives to it or improvements that may merit their own protection.
Many patents (and by extension the inventions which they protect) are clearly
valuable based on the amount of money that entities are willing to spend to
license or purchase patents. If one assumes that but for the applicant’s
contribution, the inventive advancement that a patent represents would have not
come about, or at a minimum would have been significantly delayed, then the
patent does not represent a taking from the public, but rather a contribution of
something new.
Here's the main problem I have with
them:
A) The disclosures are completely USELESS.
First off, I
would like to note that I am (in theory) among the intended beneficiaries of
software patents. In theory, I should be able to learn wonderful things from
them. In practice, every single patent I've ever read has been completely,
utterly and terribly useless. They never seem to contain any source code,
they're vague, and they're filled with legalese written to fit inane
requirements like the "one sentence rule" rather than anything that could be
considered useful. In the event that I actually wanted to get technology from
someone, we would license their source code and talk to their engineers and
developers. We do not, at any point in time, read patents for ideas. I
probably shouldn't even read them at all, lest I be accused of willfully
infringing upon them. Which makes them doubly useless.
B) "A patent
may not subtract from that which was already available in the public domain
before the invention was made; it only enriches the public."
But over
here, in reality, they do. The "inventor" either claims that his vaguely-worded
claims for something unrelated somehow anticipated technology developed by
others, or the USPTO once again allows a patent on something everyone considered
too obvious to patent and something they've been doing all the time. After
this, a bunch of patent lawyers get a lot of money and the businesses that
actually do something with technology (i.e. those who aren't NPEs) lose money.
For no reason.
In short, we have a government office sitting around
making expensive-to-comply with laws that don't help us. It amounts to a tax on
the people actually doing useful technical work to perpetuate a system that
doesn't help us at all. Incidentally, I like this part: "Most patents that
have commercial value—whatever the field—are used for licensing and other types
of business deals, or to persuade a competitor to change its product." But I
have another spin on it. The patents are used to sue anyone with a better
product than yours. If you can compete in the marketplace, you do that. If you
can't, then you sue. See also: SCO.
All laws come at a cost, so I
realize that that can't be the only basis for rejecting them. But these laws
cost a lot and their supposed benefits are at odds with the results as I observe
them. But when you write, "Based on our experiences and observations, we
suggest that many of the proffered arguments would apply equally to other types
of inventions.", do you realize that some of us question the scope, duration and
grant of all forms of IP? I think you would find many of us are not merely
against software patents, but against unduly burdensome IP laws of all kinds.
Otherwise, you wouldn't have the Pirate Party, Against Monopoly, or that
Facebook group called something like "I don't believe in imaginary property." I
mean, when you answer criticism with statements like "This criticism could be
voiced for any type of patent," I just get the feeling that you do not, in fact,
know your audience here. And when you say "A system that does not encourage and
reward invention and innovation, by contrast, logically leads to a lower level
of competition," it's like you don't realize that the marketplace itself
encourages and rewards innovation (i.e. people like to buy good products), or
else you do realize that and don't address it very well.
Still, you
beat the guys who tried to tell us that software isn't math because they have an
engineering degree, even though they have no idea what the Curry-Howard
correspondence is. Or even worse, the guy who called it "cosmetic" without
actually addressing any of the math and proceeded to call the successor function
"nonsense," proving that he knows very little about ZF or how the integers are
constructed. Sadly, he's not alone. I probably would have been like that, had
I not abandoned the EE curriculum for a math degree. Some engineer who thinks
he's bad news because he can do linear algebra and PDEs has no business talking
about "what math is" when he seemingly can't even construct the integers. But I
digress. The point of that rant is that you're the best of the lot so far,
though I fear it wasn't a high bar to reach and you're attempting to persuade us
by assuming that we need to reconcile our opinions with other ideas that at
least some of us do not, in fact, believe. "Imperfect, but good enough,"
doesn't really sound like a ringing endorsement, but maybe it's because you
actually acknowledge that faults exist that you seem more reasonable than the
last two...[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 07:31 AM EDT |
| that will stop patenting ideas... [ Reply to This | # ]
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| Authored by: sproggit on Sunday, September 27 2009 @ 07:46 AM EDT |
When it was first conceived, the concept of a patent was intended to enable an
inventor to receive monetary compensation from anyone else who wished to utilise
their designs.
Today, a patent has become a business weapon, wielded by the largest and
wealthiest of companies to create a barrier to entry into market sectors.
Coupled with the abject failing of the USPTO to enforce proper diligence, prior
art checks, non-obviousness checks and validity checks, the resultant
self-serving mess is a disaster waiting to happen.
We consider constructs such as music and painting to be art forms, not science,
even though in many cases they rely heavily on scientific principles, including
harmonic resonances for music and parallax and perspective for art. Yet the
notion of patenting a portrait, or patenting a "landscape with a tree in a
field" is an absurd notion. Even if the painting is purely fictional, such
as for a fictional creature, the concept of applying a patent to it is
pointless.
I would advocate that we consider software to have the same stature in legal
terms as an artwork. Art is protected by copyright - including in some cases a
likeness. The copyright protections of art rewards creativity and protects the
artist. But most importantly, the first painting of a portrait does not preclude
other artists from creating their own. Most importantly, the original artist is
not "harmed" when other produce portraits. [ If for no other reason
then because there are only so many hours in a day in which the artist can work
].
The biggest danger we face is to allow vested interests to try and control the
context of this debate. The bottom line is that software and patents are an
inherently bad idea, and to quote a very eloquent and well-informed writer, it's
about time that software and patents got a divorce.
It's that simple. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 09:47 AM EDT |
Reading this article I could not find a reason why art should be excluded from
patentability. Would there be a reason?[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 09:51 AM EDT |
The problem with allowinf to patent ideas of thoughts is that there is no proof
that it works. And therefore it is unknown if it is an innovation or not and
therefore should not be patented.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 09:58 AM EDT |
It is interestng that patents are meant to be good for the public in general.
However, in the process of granting patents there is no evaluation if the
granting of the patent is to the benefit of the public in large and what that
benefit is.[ Reply to This | # ]
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| Authored by: kattemann on Sunday, September 27 2009 @ 10:18 AM EDT |
| I read somewhere that a Frenchman got a patent on the process of changing
a company's working days to 6 hours. I have searched around but cannot find it -
anyone? ISTR that it was filed by France's version of the EFF, as a reductio ad
absurdum. [ Reply to This | # ]
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| Authored by: reiisi on Sunday, September 27 2009 @ 10:40 AM EDT |
I read this hoping for some reasonable discussion on what rights to
inventions could entail that might illuminate what could be reasonable rights
for software, and maybe for methods. (And, no, they are not the same.)
All I see is what looks like classic strawman, mixed with carefully selective
retelling of the story. These two guys are either very unaware of the other
side of the debate, or they are very ingenuous, and still unaware of major
elements of the other side of the debate.
I wish I had time for a point-by-point, but I don't. It would take three or four
full days, minimum, since I agree with nothing they say, from their definition
of the debate to their closing comments, and since I'd prefer to give
references to every counter-point. Wish I had more time for this.[ Reply to This | # ]
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| Authored by: Winter on Sunday, September 27 2009 @ 11:14 AM EDT |
The economic theory behind the IP debate is the principle that ownership of
excluded goods (eg, land, buildings) increases efficiency if all the negative
externalities are internalized.
For excluded goods, only negative
externalities are internalized. You can be charged for diminishing the value of
other peoples property, you cannot charge others for the increase in value your
actions have.
For instance, if the stench of your garden pollutes the
environment and depresses property values, your neighbors can charge you for
damages. If your garden is so beautiful that it increases property values of
your neighbors, you cannot charge them.
In general, "externalities" sec
are mentioned where negative externalities are meant. That is, the case for
internalizing negative externalities is extrapolated to positive
externalities.
In IP laws, also all positive externalities are
internalized for NON-excluded goods. In this case, the property analysis breaks
down and large inefficiencies are the result. See:
"Property,
Intellectual Property, and Free Riding"
Mark A. Lemley
Stanford Law School
"Courts and scholars have
increasingly assumed that intellectual property is a form of property, and have
applied the economic insights of Harold Demsetz and other property theorists to
condemn the use of intellectual property by others as "free riding." In this
article, I argue that this represents a fundamental misapplication of the
economic theory of property. The economics of property is concerned with
internalizing negative externalities - harms that one person's use of land does
to another's interest to it, as in the familiar tragedy of the commons. But the
externalities in intellectual property are positive, not negative, and property
theory offers little or no justification for internalizing positive
externalities. Indeed, doing so is at odds with the logic and functioning of the
market. From this core insight, I proceed to explain why free riding is
desirable in intellectual property cases except in limited circumstances where
curbing it is necessary to encourage creativity. I explain why economic theory
demonstrates that too much protection is just as bad as not enough protection,
and therefore why intellectual property law must search for balance, not free
riders. Finally, I consider whether we would be better served by another
metaphor than the misused notion of intellectual property as a form of tangible
property. "
Rob
---
Some say the sun rises in
the east, some say it rises in the west; the truth lies probably somewhere in
between. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 11:48 AM EDT |
Now lawyers have decided that lawyers can make one heck of
a lot of money forever into the future on software and
business patents. All the lawyers have to do is twist the
law, like in Animal Farm. Lawyers should read/re-read it.
The lawyers are misrepresenting the history of technology.
To lawyers, life is a zero sum game at best.
The information technology providers created the cornucopia
that exists today WITHOUT software or business method patents. That time might
be destroyed forever. Humanity
would suffer for the greed of a few, again.
Any properly trained high school debater could cut to pieces
all their pseudo logic about undefined benefits to society
and prove that only some lawyers benefit. Citizens and most
lawyers cannot even adjudicate software patents. Truth!
Patents protect and encourage pure and applied research.
Period. Complete story. Think Edison, Bell, Marconi. Think
long periods of frustration before success. More recently
think of drug trials ending in failure after failure.
These lawyers think of patents as the foundation for their
own business methods. They create social friction, FUD,
barriers, toll booths, abridged Constitutional rights.
Think of patent trolls wielding the present laws.
I see strong evidence that technological innovation has
drastically slowed since the introduction of software and
business patents. FOSS is the last software community
dedicated to innovation. America's technological heart is
dying.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 12:07 PM EDT |
Several threads ago there was a comment about the misuse
of the phrase "begs the question". I think that phrase
sums up much of the arguments for S/W and B/M patents.
Do these type of patents really do what the founding fathers
of this nation intended when they allowed for patents in
writing the Constitution? I would have to say that the
answer is no.
It cost me absolutely nothing except for the cost of
electricity to run my computer to write software.
It cost me absolutely nothing except for the cost of
electricity to run my computer to test and verify
that software.
I costs me nothing except the cost to connect to the
internet to distribute that software.
And, I'll bet that for every idea that I embody in
software, there ten others who have solved the same
problem.
Why should my code be given special protection other than
copyright? Why should I have to feel that if I try to
share my code I might be sued because someone else solved
a similar problem earlier.
Botton line is that I rarely publish my code because I am
afraid that I will get sued. Now, tell me what that
promotes and how it benefits the public?
[ Reply to This | # ]
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| Authored by: davecb on Sunday, September 27 2009 @ 12:18 PM EDT |
There were several attempts to do explicitly mathematical computer
languages, mostly described in ACM papers.
Automatic programming and
compilers II: The COLASL automatic coding system
Source ACM Annual
Conference/Annual Meeting archive
Proceedings of the 1962 ACM national
conference on Digest of technical papers
Pages: 44 - 45
Authors
K. G.
Balke
G. Carter
RECENT YEARS have been the development of two somewhat
similar automatic coding systems at the Los Alamos Scientific Laboratory of the
University of California. The MADCAP system, generating codes to be run on the
MANIAC computer, has been produced primarily by Mark Wells and Donald Bradford .
The COLASL system, which compiles codes to be run on the IBM-7030 (STRETCH)
computer, is the result of work done by the authors under the direction of
Edward A. Voorhees. Both systems have attempted to utilize source languages
which are as natural as possible within the limitations of time and
hardware.
at http://portal.acm.org/citation.cfm?id=800198.806099
An
experiment in a user-oriented computer system
Source
Communications of the
ACM archive
Volume 7 , Issue 5 (May 1964)
Pages: 290 - 294
ISSN:0001-0782
Authors
Melvin Klerer Columbia Univ., New York
Jack May
Columbia Univ., New York
A version of a software-hardware system for the
purpose of facilitating the programming and analysis of well-formulated problems
is described. A modified Flexowriter is used to generate computer-acceptable
input when equations or computable requests are typed in much the same manner as
they would appear in conventional mathematical texts. The typing and language
rules are quite flexible and unrestrictive. While the compiler part is
efficient, the system as a whole has much broader aspects as a tool for the
study of problem solving and self-teaching
systems.
http://portal.acm.org/citation.cfm?id=364099.364266
MIRFAC: a
compiler based on standard mathematical notation and plain
English
Source
Communications of the ACM archive
Volume 6 , Issue 9
(September 1963)
Pages: 545 - 547
ISSN:0001-0782
Author
H. J. Gawlik
Royal Armament Research and Development Establishment, Fort Halstead, England,
U.K.
A pilot version of the compiler MIRFAC, now in the operation, is
described. The chief features of the system, which is intended for the solution
of scientific problems, are the presentation of mathematical formulas entirely
in standard textbook notation. The use of plain English for organizational
instructions, automatic error diagnosis indicating the actual location of the
error in the uncompiled program, and an attempt to minimize that fragmentation
of the original problem statement which is a normal feature of programming
systems.
http://portal.acm.org/citation.cfm?id=367618&dl=GUIDE&coll=
GUIDE&CFID=54934927&CFTOKEN=91866576
MADCAP: a scientific compiler
for a displayed formula textbook language
Communications of the ACM
archive
Volume 4 , Issue 1 (January 1961)
Pages: 31 - 36
ISSN:0001-0782
Author
Mark B. Wells Los Alamos Scientific Laboratory of
the Univ. of California, Los Alamos, NM
Donald Knuth's WEB System of
Structured Documentation is the modern outgrowth, though it is not evidence of
a/the mathematical nature of
software
ftp://reports.stanford.edu/www/pub/cstr.old/reports/cs/tr/83/980/CS-TR-
83-980.pdf
---
davecb@spamcop.net [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 12:29 PM EDT |
From what I see, patents as currently implemented in most of the Western world
work really well when someone wants to sell something* that has precisely one
patentable idea. It works really poorly when the thing to be sold must include
many patentable ideas.
So far, I've seen no recognition of that in any arguments about patents. To me,
it seems a central point.
(This next part comes from memory. I spent five minutes on Google without
finding anything. It does, after all, come from Internet pre-history.**)
We have examples of this from early days of both telephones and radio. In both
cases, the US Government stepped in and passed legislation granting compulsory
cross-licensing agreements between the warring parties.
In telephony, I recall that one company (Western Electric?) had a patent on the
best microphone technology. Another company had a patent on the best speaker
technology. Neither would license to the other. After several years of poorly
performing products delivered by both, the government required them to
cross-license, thus allowing both companies to deliver telephones that did a
much better job on voice reproduction quality.
I don't recall the technical details about radio, but I vaguely recall that the
time frame was in the run-up to WW I. The government wanted to buy radios that
worked well for the Army. Two or three companies had patents that prevented any
of them from making radios that did a good job. The government got tired of the
mess and forced them to cross-license.
So, why do we have so many problems with software patents? My take on it is that
any given program can potentially require many, many (potentially thousands if
not tens of thousands) inventions. So, the software industry is the place where
we'll first see problems. We're the farthest away from "one product - one
invention".
These examples, along with just about everything else I've read, make me think
that explicitly recognizing the continuum of value of patents compared to the
number of potential patents per product would help greatly in figuring out what
to do about these issues.
* When I use the word 'something' here, I want to include any useful thing that
one person could conceivably put in a catalog and sell to multiple people,
whether it be a mechanical device, a pill, a software deliverable, or a
process.
** Can anyone remember or find anything about either of these examples or any
other relevant examples?
Pat McGee[ Reply to This | # ]
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| Authored by: LaurenceTux on Sunday, September 27 2009 @ 12:57 PM EDT |
Lets see what ideas we can come up with the fix this mess that the patent system
has become.
a few things ive thought of
1 instead of a complete ban on software patents reduce the life of the patent to
say 3 years and require that usable source code to implement this patent be
filed with the patent office
2 put a Defend or Lose clause in (if you sit on a patent to increase the pool of
violations you lose the patent)
3 All Standards Must have Patents waived for the purpose of implementing The
Standard
4 all patents that have been filed that do not specify "an invention"
in a way that you could reproduce said patented "product" should
immediately be pulled (source code and SDKs required should be attached to the
filing)
5 examiners should get a bonus for every patent they reject on the basis of
being unfit
6 a limit should be placed on how many patents can be "in the pipe"
per company (unless a hold fee has been paid) and
there should be a limit as to how many "redos" a given invention has[ Reply to This | # ]
|
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| Authored by: Winter on Sunday, September 27 2009 @ 02:14 PM EDT |
PJ wrote:
I will simply point to the single most important
reason FOSS developers and users of GNU/Linux operating systems are so opposed
to software patents -- they violate and block a new development model, that of
Open Source.
FOSS does not need patent protection, for the
obvious reason that the economic transaction and opportunity costs of patents
are much larger than the production costs of FOSS.
A lot has been
written about the economics of FOSS development. A few of the most accessible
articles are:
- The
Emerging Economic Paradigm of Open Source
Bruce Perens, Senior
Research Scientist, Open Source
Cyber Security Policy Research Institute, George
Washington University.
Open Source is self-sustaining, with an
economic foundation that operates in a capitalistic manner. It does not require
any sort of voodoo economics to explain. It is an extremely beneficial component
of a free-market economy, because of the very many people and businesses that it
enables to make their own economic contribution. It is more efficient than other
economic paradigms of software development for producing software that does not
differentiate its user's business. Non-differentiating software makes up the
lion's share of all software in a business, and businesses would be well advised
to pursue Open Source collaborations for producing such
software.
-
Linux Kernel 2.6:
It's Worth More!
David A. Wheeler
also: Linux Will Be Worth $1 Billion In First 100 Days of
2009
It's also worth noting that the Linux kernel has grown
substantially.
That's not surprising, given the explosion in the number of
peripherals
and situations that it supports.
In
Estimating Linux's size,
I used a
Linux distribution released in March 2000,
and found that the Linux kernel had
1,526,722 physical source lines of code.
In
More than a Gigabuck,
the Linux
distribution had been released on April 2001, and its
kernel (version 2.4.2) was
2,437,470 physical source lines of code (SLOC).
At that point, this Linux
distribution would have cost more
than $1 Billion (a Gigabuck) to
redevelop.
The much newer and larger Linux kernel considered here, with far
more
drivers and capabilities than the one in that paper,
now has 4,287,449
physical source lines of code, and
is starting to approach a Gigabuck of effort
all by itself.
If the kernel reaches 6,648,956 lines of
code
(($1E9/$56286/2.4*12/3/1.54869) ^ (1/1.12))
given the other
assumptions
it'll represent a billion dollars of effort all by itself.
And
that's just the kernel, which is only part of a working system.
There are other
components that weren't included More than a Gigabuck
(such as
OpenOffice.org) that are now common in Linux distributions,
which are also large
and represent massive investments of effort.
More than a Gigabuck
noted
the massive rise in size and scale
of OSS/FS systems, and that distributions
were rapidly growing in
invested effort; this brief analysis is evidence that
the trend continues.
-
The
Economics of Free Software
and why it matters for developing
countries
- Debian 2.2 GNU/Linux (2001):
Source
lines of code: 55,201,526 (of which Linux
forms under 6% – Stallman is
correct!)
- If Debian was written in a software company:
Estimated
effort: 14,005 person years
Estimated schedule: 6.04 years (team of 2,318!)
Development cost: US$ 1,891,990,000
- Price of access to the
public – and businesses:
Usage: Free; Copying: Free; Editing: Free
-
The Economic
Organization and Efficiency of OS/FS Software Production: An Agenda for
Integrated Research
J.-M. Dalle, P. A. David, and W. E. Steinmueller,
Université de Paris-VI – Jussieu
Stanford University & Oxford
Internet-Institute
University of Sussex-SPRU
In this regard,
preliminary results tend to stress the social efficiency of developer community
“norms” that accord significantly greater reputational rewards for adding, and
contributing to the releases of upstream modules. Further, these preliminary
explorations of the model suggest that policies of releasing code “early” tend
to generate tree-shapes that have higher social efficiency scores. The
intuitively plausible interpretation of this last finding is that early releases
are especially important (adding larger increments social utility) in the case
of upstream modules, because they create bases for further applications
development, and the reputational reward structure posited in the model
encourages this “roundabout” (generic infrastructure) process of development by
inducing individual efforts to share the recognition for contributing to
upstream code. This is based upon a static ex post evaluation of the resulting
tree form, and it is evident that the results may be altered by considering the
dynamics and applying social time discount rates to applications that only
become available for end users at considerably later dates. In other words, the
social efficiency of the reward structure that allocates developers’ efforts
will depend upon the temporal distribution, as well as relative extent to which
OS/FS-generated code meets the needs of final users rather than the needs/goals
of the agents who choose to work on these projects.
- Much
more at the Maastricht Economic and
social Research and training centre on Innovation and
Technology
Rob
---
Some say the sun
rises in the east, some say it rises in the west; the truth lies probably
somewhere in between. [ Reply to This | # ]
|
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| Authored by: Anonymous on Sunday, September 27 2009 @ 02:25 PM EDT |
| The article addresses some of the arguments against software and business method
patents by saying those same arguments could apply to patents in other fields as
well, and that the solution is to more properly enforce novelty and
nonobviousness requirements rather than throw out software and business method
patents.
Although it is true that one problem with software and business
method patents is that it is much harder to draw the line between
obvious/non-obvious and not-novel/novel than it is in other fields, that is not
the only reason against such patents.
Software and business method patents
are unlike any other patentable field, in that they extend the scope of human
activity over which the government has control, in a way that patents in other
areas do not.
Consider the following three general areas of human activity,
using terminology drawn from the ancient world:
The
Marketplace, the Home, and the Forum.
The
Marketplace is where people buy and sell, barter and trade with others.
Government has traditionally regulated the Marketplace,
providing rules and structures to ensure a healthy and vibrant economy and the
protection of the consumer.
The Home is where people do what they
want with their own physical possessions in the privacy of their own home.
Government has traditionally NOT regulated the Home, except
where health and safety are at stake.
The Forum is where people speak
and proclaim their ides for others to hear. Government has traditionally
NOT regulated the Forum, except to protect against untrue libellous
proclamations, proclamations that incite to unsafe behaviour, and other such
forms of dangerous speech.
Patents in traditional subject matter are, at
least in practice, just another form of government regulation of the
marketplace. To infringe on a traditional patent requires time, physical
resources, and the ability to build or manufacture something. If a company
RodentCo sells a patented new mousetrap, it would be a very rare handyman who
would try to build his or her own mousetrap in her or her own garage or workshop
using the patented design. Although such a handyman would be technically
infringing the patent by doing so, RodentCo would likely neither know nor care
and the only practical restraint imposed by the patent would be if another
company tried to market their own version of the mousetrap (or if the above
handyman tried to make several mousetraps and sell them as a business).
And,
just as RodentCo would not care about the occasional handyman making a mousetrap
for themselves, neither would they care about a publication that described their
mousetrap's design: they know that the average person will still be looking to
buy the mousetrap somewhere, and they know that any company selling mousetraps
has to acquire a patent licence from them.
Thus, the practical effect upon
society is only one of restraint upon the marketplace. It has no impact on
freedom of speech, nor does it have any practical impact on what people do in
the privacy of their own homes.
However, software and business method
patents are unique in that their implementation requires
- No
additional physical resources: no nuts, bolts, screws, etc.
- No
manual acts of assembly: no need to screw pieces together, etc,
and
- No marginal cost for each copy of the invention: it costs no
more to make 1000 copies of a computer program than to make the first copy,
unlike a mousetrap where it does cost significantly more to make 1000 mousetraps
than to make just 1.
These three properties, which are satisfied by
software and business method patents but are NOT satisfied by traditionally
patentable inventions, are a very big reason why there is a qualitative and not
just quantitative difference between patents on software/business methods and
patents in other areas.
Specifically, they result in patents requiring
government regulation in the Home and the Forum as well as just
government regulation in the marketplace.
A software patent may be
unwittingly infringed even by a hobbyist programmer operating in their own home
to write software. Unlike the case of the hobbyist who built their own
mousetrap, about which RodentCo would neither know nor care because the vast
majority of consumers would not do that, a software patent holder SoftwareCo
probably would know or care about such a hobbyist: particularly if the
hobbyist reported on their actions in a public blog and shared the code with
friends, or contributed it to an open source project.
Property (3) of
software/business method inventions -- their zero marginal cost to practice --
means that thousands of people might start using the hobbyist's code instead of
buying SoftwareCo's product.
In order for SoftwareCo to enforce their
patent "rights", they need the government to regulate what a hobbyist programmer
is and is not allowed to do in the privacy of their own home, and/or regulating
what kind of information a hobbyist is and is not allowed to share with others
in a public forum (since readers of that forum could simply type into their own
computer the source code the hobbyist wrote and then, presto, they're practising
the invention too).
So now, government regulation moves from the
Marketplace (where it has traditionally been) into the Home and
the Forum (where it has traditionally not been except in very well
defined and clearly necessary ways).
Although there are similar regulations
in place for copyright, those regulations are better designed in how they
regulate actions in the Home (the "fair use" clause would protect the
hobbyist's private actions and only regulate what he/she shared with others) and
in the Forum (where only if the hobbyist copied SoftwareCo's material
would he/she be in violation; sharing his/her own creative work without
reference to the work of others would not be any form of violation, unlike
patent legislation in which the hobbyist's words could be considered
"infringing" on a patent the hobbyist didn't even know about).
Patent
legislation was designed to be legislation about the Marketplace, and
when recent extensions to the scope of patentable subject matter cause it to be
applied in the Home and the Forum as well, it is lacking the
safeguards built in to copyright legislation because it was never designed to
operate in those areas.
In conclusion: patentability of software and
business methods is dangerous because it causes patent law to serve as a
regulation of what people can and can't say in public and a regulation of what
people can and can't do in the privacy of their own homes, whereas patent law
was originally intended to operate only in the marketplace and lacks the
appropriate safeguards to operate in these other areas.
Copyright law, by
contrast, IS designed to operate properly in the Home and the Forum, and that is
one very strong reason why Copyright Law, not Patent Law, should be how software
and business methods are protected.
(I speak here of hobbyists, not to imply
that Open Source software is just the work of hobbyists or anything like that,
but simply because the ability of anyone, be they hobbyist or professional
programmer working for money, to contribute to an open source project is an
important freedom which is jeopardized by software patents.)
Philip Spencer
(no Groklaw account) [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 03:35 PM EDT |
"If one assumes that but for the applicant’s contribution, the inventive
advancement that a patent represents would have not come about, or at a minimum
would have been significantly delayed, then the patent does not represent a
taking from the public, but rather a contribution of something new."
if one assumes...then frankly one can make a case for anything one likes.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 06:22 PM EDT |
My proposition is that patent licensing is the larger problem than the patents
themselves. If patents were associated with enabling a machine to perform a
function, but not on the software itself, both innovation and software
innovation could still be promoted. For example, if I bought a DVD drive with
Windows DVD software, I would get a license for that machine to implement DVD
functionality, which would allow me to use a Linux DVD player without violating
any patents.
The current system ties the license to the software, not the machine, which
limits innovation. Tieing the license to the machine allows the patent holder to
get the revenue associated with the original innovation, while preventing the
original innovator from stopping subsequent innovators from improving the
product. One additional troll prevention would require patent holders to sell a
product containing a license for their product before they could enforce their
patent.
This proposal does cause problems for large programs like Office, as something
like the i4i patent would require anyone wanting to use Office to buy a copy of
the i4i software, even if they didn't use the capability provided by i4i. This
wouldn't be entirely bad, as it would encourage more modular software by
discouraging the embrace and extend approach.[ Reply to This | # ]
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| Authored by: thorpie on Sunday, September 27 2009 @ 06:57 PM EDT |
In all patents, but especially in
software patents, the basic balance between
the reduction in profit
from disclosure and the increase in profit from patent
licensing has
been broken.
The initial logic behind patents was
that
disclosing manufacturing processes allowed competing firms to
lessen their
research and development costs. This was supposed to be
beneficial to the
country overall because it was supposed to result
in the best manufacturing
techniques being employed throughout the
whole industry.
I say
"supposed" because it
is questionable. It meant that competing
companies used their
research budgets paying licensing fees instead of paying
their own
engineers.
In the 18th century ideas moved much
more slowly
than today. A seven year patent term was devised as
providing for balanced
line-ball decisions in those days.
For the developer of a process
their
line-ball decision revolved on their competitor's increased
productivity
from using the process. This increased productivity
results in a lower price for
goods and/or less goods sold by the
process developer, either of which lowers
the developer's profit.
Weighing against this was the fact
that
competitors could develop the process independently, or that an
alternate
process could be developed. Either of these would result in
lower profits with
no recompense.
It was supposed to produce a balanced
and line-ball
decision. If a process was kept secret the developer
kept a competitive
advantage. If they obtained a patent they lost
some of their competitive
advantage. There were huge risks with
either strategy. A seven year patent term
in them slow moving times
was considered to be reasonable.
Times Change.
In 250 years our information transfer
methodologies have changed
slightly. We have gone from horse drawn
transport delivering mail and books to a
society where ideas are
transmitted around the world instantaneously.
Trade secrets still exist, and they
still provide a competitive
advantage. However this advantage from
trade secrets is much less than what it
was 250 years ago.
Nowadays the monopoly advantage from
a patent is
much, much more than the loss of competitive advantage.
The balance has been
completely extinguished.
This imbalance has resulted in a change of logic
for justifying patents. While disclosure is always
quoted as being a prime
reason for patents the reality is that this
disclosure nowadays means very
little. There hasn't been an invention
of any kind that cannot be reverse
engineered within minutes, and
reverse engineering or separate development make
disclosure
redundant.
Without the disclosure argument the
whole basis for
IP changes. If the basis changes then the law should
have changed to reflect
this, but it hasn't. To change the law to
reflect the current IP reality of
“I discovered it, I own it,
nothing else matters” will require a
constitutional amendment
in the USA. The chances of obtaining a such
constitutional amendment,
as I am confident most people would agree, are
precisely zero.
The system is corrupt to the core.
The whole framework
is not built on the stated reason. The stated
reason is a lie and the whole
edifice of IP laws is corrupt from its
foundation's core.
---
The
memories of a man in his old age are the deeds of a man in his prime - Floyd,
Pink [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 27 2009 @ 07:13 PM EDT |
I have a huge problem with this
statement:
They were an extension of a person’s natural right to
“own” his or her creative thoughts. The only kind of patents our founding
fathers blessed, therefore, was a monopoly over new intellectual work
product.
I do not believe anyone has a right to "own" his or her
thoughts. Further, I don't see how anyone can.
When you hold a
thought to yourself - it's a thought all your own and you do not share it with
others - then the thought is exclusively yours.
But when you
share this thought with anyone, through any form of expression, it
becomes a meme all its own, existing as new, unique thoughts in those who have
been exposed to it.
I wish people would stop using words of "ownership"
when referring to thoughts and ideas. The mere thought of it is ludicrous.
You can no more own an idea than you can own air.
As I
see it, patents (and copyright) exist specifically to grant the protection to
express ideas, not the ideas themselves.
I propose we
take a big step back and recast the entire debate under that light. [ Reply to This | # ]
|
| |
| Authored by: PolR on Sunday, September 27 2009 @ 08:01 PM EDT |
| I will join the choir to thanks PJ's honored guests for their concise and clear
enunciation of the pro-patent case. I especially enjoyed their historic
description of how software patents came into existence.
Our guests raise an
interesting point here:
The law is clear, and courts have
consistently ruled that abstract ideas are not patentable. The issue here, then,
is the interpretation of the term “abstract.” This has been a difficult question
for the courts but, in many cases, courts have held that an abstract idea—such
as a mathematical algorithm in and of itself—is no longer considered abstract
when it is tied to a specific, practical application such as a structure or
process.
This is implicitly asking a clarification on the terms
abstract. And byt even more implication, this is asking for a clarification of
what constitutes a mathematical algorithm in the abstract as opposed to an
application. I intend to provide some background information in two posts. The
first one (this one) will be summary of what mathematicians and theoretical
computer scientists know on the topic. The second posts will explain how this
knowledge ties in, in my opinion with some of the landmark precedent setting
cases.
Software Is Maths.
When say software is maths, we mean
software is a mathematical description of a computation. Software is not a
formula or an equation. It is a description of a computation like when you
learned in school how to perform a division with pencil and paper. You learned a
step by step process of how to manipulate the digits on a sheet of paper that
once complete results in the numeric value of the division. This process is
mathematics. A description of how to accomplish such process is
software.
The above paragraph is there to define the scope of the sentence
"software is maths". There is confusion as to what abstract idea correspond to
software. This is a hard topic. Our knowledge is the result of decades of
research. Even people with a lot of programming background and experience may go
astray when they have not studied that research. Here we will develop why the
following points are true but not in this order.
- All software is
formal description of computations.
- All described computations are
mathematics.
- The above implies that software is mathematics regardless
whether software is source code or binary code.
The above are facts about
mathematics and theoretical computer science. They are not points of law that
can be determined by way of statute or precedent.
Computations Are
Inherent to the Foundations of Mathematics
Computations are mathematics
in part because the concepts of computation and mathematical proofs are very
tightly interrelated. Proofs are how mathematical discoveries are made. When a
mathematician writes a proof he very frequently has to develop an algorithm to
make the proof work. You cannot write the most useful kind of mathematical
proofs without providing an algorithm at the same time. This is best explained
by means of a parable.
This is 1963. It is the heart of the Cold
War. The head of CIA rushes into the office of his main scientific
advisor.
CIA Head: We have received a report from James Bond. The Soviets
have developed a new formula that makes our strategic defense obsolete. It will
cost us billions to upgrade. But the report says it could be disinformation,
that the new theory may be something phony to make us spend billions uselessly.
We cannot afford to guess. We need to know. Can you use a computer to find out
if the formula is true of false?
Chief Scientist: Sure I do. I can write a
program that prints "True" whatever the input is and another one that prints
"False" whatever the input is. One of the two programs is bound to provide the
answer. Therefore I can use a computer to print the solution you seek.
The chief scientist argument is a simple mathematical proof that
rest on a logic principle called the excluded middle. It states that a
proposition is either true or false. There is no other alternative. Given this
principle it is indeed correct that one of the two program will provide the
answer to the CIA chief question and there fore the chief scientist can indeed
write a program that will provide the correct answer. The only problem is we
don't know which one.
This parable is meant to illustrate a debate between
two schools of mathematicians on what is a valid mathematical proof. The
classical school argue this kind of proof is correct. You claim claim the
solution exists without actually providing an example of the solution. The
intuitionistic school says this kind of proofs are meaningless. If you want to
show a solution to a problem exists, you need to bring an actual example of the
solution. The parable has been designed to make the intuitionistic point of view
relevant because the point of the CIA Head request is to know what the solution
is. Its mere existence is not good enough.
The intuitionistic school further
articulates what constitutes an acceptable proof. They don't need an exact
answer an "effective method" to calculate the answer is good enough. If they are
confident that following the steps of the method will eventually lead to the
answer, then they will accept that the proof meet their standard. This was in
the early 20th century. Nowadays it is accepted that the intuitionisitic concept
of effective method is the same as the modern notion of algorithm.
Here we
have show that according to the intuitionistic school, we can't have a
mathematical proof without an algorithm. Furthermore, even the classicist accept
that intuitionistic valid proofs are better than the others because there is
huge practical value into being able to calculate the solution of problems. This
is evidence that algorithms, which are what I also call "computations", are part
of mathematics and not some application of mathematics.
Recursion
Theory
Here I will flesh out what kind of computations are the ones that
are tied to mathematical proofs. Once of the most theoretically important
definition stems from elementary arithmetic: recursion theory.
At the most
fundamental level mathematicians define the positive integers in terms of 0
(zero) and the successor function (x+1). If you have zero and the ability to
increment by one, you can iterate of all positive integers 0, 1, 2 ... if you
are patient enough to run though them until infinity. This is called Peano
Arithmetic. Its point is to capture the most fundamental elements of arithmetic,
much like atoms capture the most fundamental elements of matter in chemistry and
particles do the same in physics.
In Peano arithmetic, you define more
elaborate arithmetic operators like addition and multiplication in terms of 0
and successor using a technique called recursion. This technique requires you to
describe how you would compute a result based on one or more previously known
computation. The root of all computations being the concepts of zero and
successors. Then you used that to define addition and multiplication and you go
on to more advanced concepts like prime numbers until all of arithmetic is
defined.
From a patent perspective, there are to important points. The
first one is the definition of everything arithmetic is done by stating how it
is computed. You don't derive the computation from the definition because the
two are one and same thing. This should take care of any notion that you can
patent a method of computing without patenting the base concept. People
advancing this point don't know how the fundamentals of arithmetic work.
The
second important point is we have here a formal definition of what is a
computation. The theory is that if a computation can be done with recursion
using Peano arithmetic then this is mathematics. By the end of this post you
will learn why all software meet that definition without exception. But before
we get there some more background is required.
Mathematicians are found of
formal methods. They tool of choice is pencil and paper. They manipulate text on
paper using very strict rules where human judgment plays no part. There is a
mechanical process that allows to determine whether they followed the rule or
not and this tell them if the result of their calculations is accurate or not. A
lot of computations are done in this manner, including many situations where
they are manipulating abstractions that are not numbers.
For example this is
how they write proofs. The modern standard on mathematical proofs requires there
must be no human judgment call in determining whether a proof is correct. All
the rules are explicitly written as syntactic manipulations of the symbols. The
human judgment is built-in the choice of the syntactic manipulations and the
base axioms they use to start the process. Each of rule and axiom must
correspond to a logical rule or an elementary truth that is specific to the
particular field of mathematics. Then one can verify the logic is correct by
mechanically checking the syntax of the proof against the rules.
Verifying
whether a mathematical proof is valid is a computation. Can this be done using
recursion and arithmetic? The answer is yes. Gödel numbers do exactly
this.
The idea is text is based on an alphabet. You can assign numbers to
the alphabet. This is like ASCII or unicode where each character correspond to a
number except that the Gödel system allows for infinitely large alphabets. Then
the character strings are turned into other numbers by means of a formula. Gödel
have shown how all rigorous textual manipulations are translated into
recursively defined arithmetic operations. He also has shown how the text
corresponding to the answer can be retrieved by other arithmetic operations that
retrieves the series of numbers corresponding to the text of the answer so it
can be translated back into alphabet.
This is a mathematical proof that
computations in recursive arithmetic and computations made of formal textual
manipulation are the same thing. There may a difference in form but not in
substance. Everything you can compute by one method can also be done by the
other method. And when it comes to practical applications, both computations
will give answers that have the same meaning.
This finding is one of the
most important mathematical discovery of the 20th century. It forms the basis a
many famous theorems like the two Gödel incompleteness theorems. It is also one
of the most important result in theoretical computer
science.
Lambda-Calculus
One of the consequences of Gödel number
is we cannot argue a computation that doesn't manipulate numbers must be
something that is not mathematical. We can now extend our definition of
mathematical algorithm to other kind of data. Whenever the rules are strictly
defined so they can be translated into recursive arithmetic by means of Gödel
numbers, then the computation is no different in substance than arithmetic. How
many non numerical data types can be turned into arithmetic in this manner?
Lambda-calculus is a mathematical theory that helps answer this question.
It is an alternative attempt to define what an algorithm is. It has been proved
to be equivalent to recursion because every that can be done with recursion can
be done in lambda-calculus and vice-versa. But lambda-calculus has interesting
features of its own.
Every computation is done with a single algorithm
called "reduction to the Church-Rosser normal form". In Peano arithmetic we use
recursion to define a new method of computing an answer every time we define a
new arithmetic concept. With lambda-calculus this is not necessary. You achieve
the same result by crafting a specially designed text and apply the reduction to
normal form algorithm to it.
This could cause some interesting situations
when someone sue you because you infringe their software patent. The answer is
you didn't implement the claimed methods. You implemented the reduction to
normal form algorithm which is old and applied it to unpatentable data.
The
other feature of lambda-calculus is it form a theoretical basis for programming
languages. Several languages are based on lambda-calculus. There is also
denotational semantics. This is a method to define what is the mathematical
meaning of a program. This is a method to translate the source code of any
program into a lambda-calculus and whatever computation this translation define
is the mathematical meaning of the source code.
Here we have the complete
path. Source code translate to lamdba-calculus by means of denotational
semantics. Lambda-calculus translate into arithmetic by means of Gödel number.
At each step there is a change in form, but the substance is the same. The
definition of computation we introduced with Peano arithmetic does cover
everything you can write in source code.
How does that tie with
intuitionistic logic their requirements to provide algorithms to make valid
proofs? There is a variant called typed lamdba-calculus that assigns something
they call "types" to the expressions written in the lambda-calculus language. It
turns of the rules for intuitionistic logic correspond exactly to the rules that
govern these types. This is know as the Curry-Howard correspondance. The types
can be interpreted as the "specification" of the algorithm. When a program is
written in this style, a verification that the types laid out are according to
the rules is also a mathematical proof that the program meet its specification.
This is one more tie between algorithms and mathematics.
Turing Machines
and Finite-State Machines
So far we have addressed computations in text
form. How about machines? For purpose of Gödel numbers an alphabet need not be
written. It can be in a machine readable form. The requirement is the symbols
must be discrete and recognizable, like the 0 and 1 in digital electronics. Then
you can assign the symbols numbers and use recursive arithmetic to define the
rules used for the computation. The machine computation are proven to be of the
same substance as arithmetic exactly like pencil and paper computations
are.
The archetypical demonstration is based on Turing machines. This is an
abstract machine that store information as symbols on an infinitely long tape.
The computation is done by reading and writing symbols on the tape and changing
the machine state. It turns out the tape and each possible states can be encoded
into Gödel numbers. Then the operation of the machine can be transformed into
recursive arithmetic. And conversely there are known methods to perform any
recursive arithmetic computation on a Turing machine. Like lambda-calculus,
Turing machines differ from recursive arithmetic in form but not in substance.
Computations remain mathematics when they are done by a machine.
Physical
computers are not Turing machines. They have finite amount of memory while the
Turing machine can potentially store infinite information on its infinite tape.
Here we need to understand how infinity is used in this context.
When
defining computation in the abstract, mathematician must free themselves from
real life constraints. You cannot say this theorem is true unless you run out of
paper before the end of the computation. You cannot say either this is true
unless you die of old age before the computation is over. This is why
theoretical definitions of computation assume infinite time and infinite storage
space for information.
Mathematician has an alternative to Turing machine
that has only finite amount of storage. It is called a finite state machine.
Like the Turing machine, the finite state machine can be turned into arithmetic
by means of Gödel numbers. But unlike the Turing machine, there are computations
they cannot do. They are limited to what fit the storage space they
have.
Wrapping up
Summarizing the key point we have
seen:
- Methods to perform computations a part of the foundations of
mathematics because in part they are required to write mathematical proofs.
-
Methods to perform computations is also how you define the mathematical concepts
in Peano arithmetic. You can't patent the method without patenting the
concept.
All computations performed by software are computations according
to Peano arithmetic.
All source code translate to lambda-calculus by means
of denotational semantics. Lambda-calculus translate to arithmetic by means of
Gödel numbers.
Al machine code translate to arithmetic by means of Gödel
numbers.
At this point it should be clear why software is maths. It should
also be clear which maths we refer to: it is the computations that are
equivalent in substance to recursive arithmetic. There is no such thing as
software that does not meet this criteria.
There is one more issue raised by
PJ's guests that remains tobe addressed.
in many cases, courts have
held that an abstract idea—such as a mathematical algorithm in and of itself—is
no longer considered abstract when it is tied to a specific, practical
application such as a structure or process.
This is a fair point.
I will discuss it in a separate comment. This one is already overly long.
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| Authored by: Anonymous on Sunday, September 27 2009 @ 08:01 PM EDT |
This essay fails entirely to address the differences between software and other
patentable forms of technology.
Software is, inherently, an incremental
art. Electronic and mechanical inventions are not. Also, it fails to address
the idea of free software which is a completely legitimate exercise.
It
is often impossible to create a competing product when something is patented in
software since there is sometimes only one way to achieve a given result. The
entire purpose of patents is to SPUR innovation. By overly broad patents
issuing in software due to the patent office's misunderstanding of patents, it
is actually stifling innovation.
The plain and simple reason why so
many IP attourneys believe software patents to be a good thing is because they
are in a postion to make a substantial amount of money from patent litigation
which is EXTREMELY costly. Asking a patent attorney if patents on software are
a good thing is like asking a shark if eating fish is okay. :) It's conflict of
interests of the highest order.
Please look my petition at here for more arguements against
software patents.
Gregory Casamento
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| Authored by: swmcd on Sunday, September 27 2009 @ 09:28 PM EDT |
I'd be interested to hear if Henry and Amundsen have an opinion on the CadTrak
patent (use of the XOR instruction to place temporary images on a video
display). Was it
- "improvidently granted"?
- improperly upheld?
- properly granted and upheld?
and were the licensing fees collected by CadTrak
- appropriate compensation for their contribution to the art?
- collateral damage, but accepted as an unavoidable cost of having a patent
system?
- unacceptable damage, indicating a need for some kind of patent reform?
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| Authored by: PolR on Sunday, September 27 2009 @ 09:54 PM EDT |
| This is the follow up post on the other one
arguing why software is maths. The main issue in this comment is where do
the maths stop? Under what circumstances an invention that makes use of software
should be patentable?
The argument will look at a few court cases and
discuss where they fit with the fact that software is maths and more importantly
what kind of math software is. You need to understand my other comment to make
sense of what I will write here.
But before I go to the meat of the matter,
I need to recap a point on how computers actually work. Unless you have an
accurate understanding of the technology, there is no way the rest of the
discussion will make sense.
Computers execute instructions by means of an instruction cycle.
This instruction cycle is an algorithm that reads the bytes of an instruction
and do whatever task is demanded by the instruction. Computers re NOT programmed
by changing the circuitry. Computer do not change the behavior of the
instruction cycle algorithm based on the instructions. They read the bytes of
the instructions as data and process that data according to an algorithm that is
etched in the circuitry. This may sound elementary to computer professional, but
it is a fact that is worth mentioning because it should have legal
consequences.
In the other comment I have described the reduction to normal
form algorithm in lambda-calculus:
Every computation is done with a
single algorithm called "reduction to the Church-Rosser normal form". In Peano
arithmetic we use recursion to define a new method of computing an answer every
time we define a new arithmetic concept. With lambda-calculus this is not
necessary. You achieve the same result by crafting a specially designed text and
apply the reduction to normal form algorithm to it.
This could cause some
interesting situations when someone sue you because you infringe their software
patent. The answer is you didn't implement the claimed methods. You implemented
the reduction to normal form algorithm which is old and applied it to
unpatentable data.
We have a similar situation here. The computer
circuitry is physically capable of only one algorithm: the instruction cycle.
But if you craft the data wisely, the instruction cycle will execute algorithm
you want for you.
Compare this to a CD-Audio. The device can play any music
you want provided you feed it with the right CD. Or it is like a mechanical
piano. It will play any tune you want provided you supply the right piano roll.
Compare this with virtual machines and emulator. A Python or a Java byte
code interpreter is a program that runs over the raw hardware. It can execute
only one algorithm: interpreting the byte codes. But you can craft the byte
codes to run the algorithm you want. Likewise the emulator of an ARM processor
will run the program you want.
The point I am making is code is data. The
difference is in the meaning of the bytes, not how they are handled in hardware.
And as we have shown, the meaning of the bytes is a computation that is
mathematical.
Benson, Flook and Diehr
That being does let's look
at a few cases. I will begin with three that got the technology right: Benson,
Flook and Diehr. This is the "trilogy" of Supreme court cases that addresses the
patentability of software. I am very impressed by these judges. They managed to
understand the gist of the technology issues accurately despite not being
briefed on mathematics and theory of computation. I have no doubt that had they
received such a brief, their ruling would have been even better.
Benson says
in substance a patent on a mathematical algorithm remains a patent on maths even
when it is drafted as a hardware patent. From a technology point of view this is
correct. I state no opinion on the legal point of view.
From the times of
the ancient Greeks, mathematics was done with physical aids to perform
computations. The Greeks used compass and ruler. The Roman used abacuses. The
Arabs introduced algebraic methods done with pencil and paper. More recently we
used sliding rulers. The digital computers are the successors of these devices.
A computation cannot remain disembodied. It has to be performed through physical
means. If you patent the process to use the physical mean, you patent the
computation. There is no difference.
Flook observes that you can patent an
algorithm without preempting all means to use the algorithm. From a technology
point of view, this is correct. Imagine you have a patent on how to compute a
logarithm using an abacus. You are not preempting the use of a sliding ruler to
compute the same logarithm. You still have patented the computation of a
logarithm.
This fact has strong consequences for FOSS. Our development model
is based on sharing the code. Since software is maths, this is sharing the
maths. This is sharing the means to perform the computation. A software patent
that preclude us from using the code is barring us from sharing the mathematical
knowledge. It doesn't matter if the patent allow us to use some formula or
algorithm in context other than sharing the code. We still can't share the
code.
Diehr states that the mere presence of an algorithm doesn't preclude
patenting an invention that would otherwise be patentable. From a technology
point of view this is making sense. In the Diehr case the patent was on a
process to cure rubber. It used a computer to compute the time required to cure
the rubber and used the answer to perform the actual cure. Calculating the time
is maths. Using the answer to perform the actual cure is not.
What I see is
that performing a computation is always maths. This is well established computer
science theory. But there is no way we can argue that the use of the answer must
be maths. It all depends on how it is used.
There is something lacking in
case law. This is the explicit understanding that computations is maths but
using answers might not be. The point is implicit in the three cases above, but
since the judges didn't explicitly state it, we can't be sure this will be how
the law actually work. I believe growing this understanding should provide ample
guidelines to design a legal test that will both sort out when a computer
implemented invention is patentable and be coherent with the fact that software
is maths.
Bernhardt, Lowry and Alappat
Now let's look at three
cases that misunderstand the technology. They are influential precedent setting
cases so it is important to explain where they have the technology wrong. I
think we computer professionals must speak out when we encounter cases like
this. Otherwise the judges will never understand their mistake and will keep
foist bad precedents upon us.
There is one further rationale used
by both the board and the examiner, namely, that the provision of new signals to
be stored by the computer does not make it a new machine, i. e. it is
structurally the same, no matter how new, useful and unobvious the result. This
rationale really goes more to novelty than to statutory subject matter but it
appears to be at the heart of the present controversy. To this question we say
that if a machine is programmed in a certain new and unobvious way, it is
physically different from the machine without that program; its memory elements
are differently arranged. The fact that these physical changes are invisible to
the eye should not tempt us to conclude that the machine has not been changed.
If a new machine has not been invented, certainly a "new and useful improvement"
of the unprogrammed machine has been, and Congress has said in 35 U.S.C. § 101
that such improvements are statutory subject matter for a patent.
The above quote is from in
re Berhardt. This mistake has been expanded on Lowry and Alappat among other
cases. In Lowry the court argued the physical changes made by data structures
similarly make new machines. In Alappat the court plainly stated that an
algorithm running on a generic computer would be patentable because of the new
machines resulting from such physical changes.
First it ignore that fact
that when you do a computation you always need a physical support. This doesn't
change the fact that the computation is maths. Even if the physical changes were
making new machines, it wouldn't change the fact that computation is maths. You
should still be required to apply Benson and Flook.
Second if these changes
were making a new machine, on what basis the unprogrammed computer could be
called a machine? If you program it is no longer the same machine. What kind of
work the unprogrammed computer is capable of doing to deserve to be called a
machine?
A subsidiary question is if programming the computer makes the new
machine, on what basis the unprogrammed computer is patentable? Such computer is
useless until it is programmed. It is doubtful that it still fits the definition
of a machine. These are two essential requirement for patentability. I think
this kind of result is not tenable. It is indicative that these cases don't
understand how a computer actually works.
But the most important objection
is that the physical changes are the result of the normal operation of the
computer. They are not the kind of changes that makes a new machine according to
any sensible definition of a machine.
Remember the beginning of this comment
when I discussed the instruction cycle? There is only one algorithm that is
physically running in computer because the hardware is physically incapable of
doing anything else. This algorithm is the instruction cycle. The software is
data interpreted by this algorithm. By design the instruction cycle requires
data. This is how it works. You can find confirmation in the technical manuals
that describe the CPU.
Feeing a piano roll in a mechanical piano doesn't
make a new machine. Inserting a CD-Audio in a CD-player doesn't make a new
machine. The CPU instruction cycle is no different.
Lowry expand on this
mistake by stating that data structures are physical changes worthy of a patent.
Modern computers can alter their memory billions of time per second. Should we
run a contest on how many patent infringement per second one is capable of? Joke
apart, machines do their work by altering their physical states. If each altered
state is gets a patent, you are patenting states occurring in the normal
operation of the machine.
To further hammer this nail, let's list some of
the circumstances where one can install software in a computer, causing changes
in memory and legally transforming his computer into a different machines.
Please take note of how the technical difference between data and code is
blurred. Take note of the potential for infringement liabilities that comes with
the mere use of your computer.
- You click on the icon corresponding to
the application.
- You click on a menu item.
- You visit a web
site and Javascript is embedded in the page.
- You visit a web site and a
Java applet is downloaded.
- Your operating system downloads a security
patch.
- You use the add/remove application menu option of your Ubuntu
system to get application from the web
- You open a PDF file. The PDF
document is a series of instructions written for execution by a virtual
machine.
- You open a text docment that contains macros.
-
You open a
spreadsheet that contains formulas. Solving formulas in a spreadsheet counts as
an algorithm isn't it?
- You use a program that generates and execute
code on the fly by means of metaprogramming.
It is hard to argue
that these activities are not the normal operation of a computer.
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| Authored by: Anonymous on Monday, September 28 2009 @ 12:50 AM EDT |
Yet advances in these subject areas require inventions and
investment just as much as new mechanical devices. And providing incentives and
protections for inventions and investments in the software and business method
arenas is becoming more important to the United States with the shift toward a
knowledge-based economy. New ideas and new companies expand the economy. If a
new company’s flagship product is sure to be copied by domestic or foreign
competition, the incentives to develop—and to invest in—the new product in the
first place are significantly reduced.
That is not to say that no
incentives would exist, as there may be a sufficient marketing “first-mover”
advantage, but the overall incentives would be reduced. If investors are not
comfortable about the non-IP advantages being sufficient to permit a reasonable
return on a risky investment, they simply will not invest. Time and again one of
the first questions potential investors ask us is whether there will be good
patent protection available when an invention is readily copiable by
competitors.
Even when the invention does not cost a fortune to develop,
marketing costs may still be in the millions or tens of millions of dollars. No
investor wants to back a small company that is going to have a larger competitor
steal its thunder with a copycat product or service, without
recourse.
People make these assertions all the time. Where is
the proof? I contend that these assertions are false.
Letter
shapes cannot be patented or copyrighted, but our font menus are overflowing
with fonts. My bartenders invent drinks all the time. No patents on them
either. Penicillin was never patented (there is a lot of misinformation about
this one). Salk never applied for a patent on his polio vaccine. Where
is the hard evidence that patents increase innovation?
On the other hand,
the telephone never took off until after the patent expired. Compression
patents have caused nothing but trouble. Video encoding patents destroy
interoperability. Encryption was never widely employed to protect electronic
communications until the patents expired (ya, government rules stifled this one
too). Where is the hard evidence that patents increase innovation? [ Reply to This | # ]
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| Authored by: jthill on Monday, September 28 2009 @ 03:01 AM EDT |
Even when the invention does not cost a fortune to develop,
marketing costs may still be in the millions or tens of millions of dollars. No
investor wants to back a small company that is going to have a larger competitor
steal its thunder with a copycat product or service, without
recourse.
Absolutely: any idea on which one could found a
business in the absence of copycat distributors should be patentable.
But the
bar is different for software.
Let's take the milk-carton-folding trick: a
business making milk cartons is a viable business. If I need milk cartons or
even just one milk carton, I'm not going to consider making one myself no matter
that I know how to fold it.
The xor trick for drawing cursors on bitmap
displays is roughly as clever as the milk-carton-folding trick, but it should
never have been patentable because no one could make an honest business selling
code to do that: anybody who needs code to do that could just write it
themselves in far less time than it would take to purchase it, at any
price.
By that criterion, RSA crypto was justifiably patentable: most of the
people who need a crypto routine are going to look for a distributor, precisely
because building commercial-grade crypto code is easily more expensive than
buying it. In the absence of copycat distributors, selling that code is a
viable business.
patents in these areas which have been
subjected to the exhaustive gamut of litigation, or to an otherwise intense
prior art study
What fraction of patent-case settlements are
for licensing fees cheaper than the cost of litigation, please?
I'm going to
presume I don't need to dwell on the import of that question. [ Reply to This | # ]
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- Ex-Cell-O Corp. - Authored by: Anonymous on Monday, September 28 2009 @ 06:37 AM EDT
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| Authored by: hagge on Monday, September 28 2009 @ 05:44 AM EDT |
I think there is a big problem: promoters of patents often misrepresent the
costs to explore the laws of nature around some invention and simply add them as
part of the costs of the invention itself. For example this part of the text:
"For example, the process of modulating an electrical signal on a wire to
communicate either telegraph or voice signals by wire. The apparatus was also
new, but it was recognized that protecting the apparatus alone was
inadequate."
Is this really correct? Well, the fact, that an electrical signal can be
modulated on a wire is a law of nature!!!! Not an invention! By working on the
telegraph, these people only discovered this law. OK, they had to try hard to
make their machine work, but this is only because they did not fully understand
this law of nature back then. So as a matter of fact they really only did a
comparably small invention, namely the *apparatus* that explicitly did a
specific way of modulation of an electrical signal, they did not
"invent" modulation itself. This is impossible.
Therefore granting a patent on the whole process was (in my opinion) completely
inadequate, only a patent on the special apparatus would have been justified.
The same holds true for example on pharmaceutical products. They always say how
much money they have to spend for their "inventions". But is this
true? In fact they only spend money to discover some laws of nature. They
discover how some chemical products react with human based chemical products.
This is nature, not invention.
Deciding the level of an invention on the costs required to build it is also not
OK. There are many mathematicians who work for years and years to prove some
theorem. This also costs quite a lot of money, but their work is not patentable,
as it is mathematics. But they do innovative work nonetheless, they help to
improve mankind. Therefore mathematics is already a good example against
patents: here innovation goes on without any patents at all.
Therefore if research for pharmaceutical products is cost intensive, then this
is bad luck for this kind of industry, but it is not per se an indicator of the
height of the resulting invention (if the result can be considered as an
invention at all).
Hagge[ Reply to This | # ]
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| Authored by: Anonymous on Monday, September 28 2009 @ 07:34 AM EDT |
As to the question of software patents, we might just be splitting hairs.
Anyone who is familiar with the history of patents will see a trend: a new
industry innovates like crazy until it becomes mature. And then the incumbents
seek patent protection.
There is an excellent book that documents this
trend, Against
Intellectual Monopoly, by Michele Boldrin and David K. Levine. This book is
available under the Creative Commons license, and I found it be a very
interesting read, indeed. (Some may wince at their discussion of copyrights,
but their patent discussion is salient here).
It is evident that man,
being an insecure creature will always seek more security once he gets a little.
The same can be said of patents. We've noticed that the demands of incumbents
have increased gradually and steadily since the dawn of patents in this country.
And now we see the pain of software patents.
All of the arguments
posted here regarding software patents appear to be splitting hairs. Some of
the posts question the entire patent system itself, just as the above linked
book. I haven't yet seen a study which shows a patent system to be a net
positive on society. Our esteemed guests have not shown any empirical evidence
to support their statement that patents generate a positive benefit for
society.
To further my point, here is a quote from the booked linked to
above:
"These strategic advantages are well documented: Fudenberg and
Tirole’s text on game theory is one example,9 while Ruyard Kipling is a less
obvious one:
I knew—I knew what was coming, when we bid on the
Byfleet’s keel—
They piddled and piffled with iron: I’d given my orders for
steel!
Steel and the first expansions. It paid, I tell you, it
paid,
When we came with our nine-knot freighters and collared
the long-run
trade!
And they asked me how I did it, and I gave ’em the
Scripture
text,
“You keep your light so shining a little in front o’
the
next!”
They copied all they could follow, but they couldn’t copy
my
mind,
And I left ’em sweating and stealing a year and a half
behind.10"
(pg. 154, Against Intellectual Monopoly)
As many have noted, patent
documents fail utterly to describe their inventions in a manner sufficient for
one practiced in the arts to duplicate. This little poem, from a book by
Rudyard Kipling, shows that the first mover advantage can be sustained for
lengthy periods, even with full disclosure.
Why? Because even with
blueprints in hand, it takes time for someone else to walk the path of the
inventor. And patent disclosures are not even close to blueprints. Our guests
point out that unless an idea is patented, it will be easily duplicated by large
corporations who can avoid the R&D costs. The reverse is also true. Without
patents, corporations would have to constantly innovate in order to keep ahead
of small ventures and individuals who would copy and improve on their ideas.
James Bessen and Robert Hunt, conducted a study many years ago and found that
software patents tended to substitute for R&D at the organizational level.
They noted a trend over 20 years of a precipitous decrease in R&D funding
and published their findings here.
If something is truly an
innovation, it cannot be easily duplicated anyway. Copying is life. Everywhere
we look, we see imitation, duplication and improvement. Copying is what makes
innovation useful to the extent that we can actually use the idea and improve
upon it.
It was PJ who lead me to this letter by Jefferson on patents.
That letter, so inspiring, is the ultimate statement on
the embarrassing monopolies of patents. And that letter, along with all the
other documentation I've read leads me to the conclusion that it is not enough
to ban software patents, because they will always come back to try again.
Patents must be taken out by the roots and abolished completely so as to free
innovation, copying and improvement of ideas as so ably demonstrated by free
software.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, September 28 2009 @ 07:38 AM EDT |
April 1, 2012
Drambuie, UT: Local attorney Sam Spade was issued a subpoena this morning as he
was entering the court house to litigate his first case in months. The mega law
firm of Dark, Dank, and Deep (DD&D) sued Mr. Spade for allegedly using one
or more of the law patents that the firm owns.
"DD&D was issued these patents after a considerable investment and we
have every right to be compensated", states the firm's representative.
"Just because Mr. Spade's trial is in a small town doesn't mean that he is
not responsible for his obligations."
"It was a simple mistake", said Mr. Spade. "I didn't think that
the law case that I would using in my argument before the court was
patented". He further stated that researching patented law cases puts him
on "a thin edge" because if he knowingly used a patented case, he
could be sued for triple damages.
There has been a sharp drop in court cases in the last few years since the
landmark "Bilski" ruling from the Supreme Court. There, the court
ruled that each court case is a "unique and individual invention" and
therefore patentable under the country's current patent laws. This has forced
lawyers to obtain a license for patented cases in order to use them in current
litigation.
"Most of the landmark cases have already been granted a patent",
Professor Potter of the Harvard Law School states. "What's left is
currently clogging up the USPTO and will probably be going through the patent
approval process for years to come".
The court houses have been eerily quiet in recent years, with judges taking rare
long vacations as law firms are having to negotiate the terms for patented cases
before being able to bring new cases to trial.
But other parts of the legal system have not slowed. "There's still
injustice happening just like always", states Sheriff Opie. "The
current problem is that we've run out of space". The city is having to rent
storage buildings for use as temporary jails until the prisoner's cases can be
heard.
Another effect of the landmark Supreme Court ruling has been the sharp decrease
in students attending law school. With the legal system virtually ground to a
halt, firms are not hiring. Professor Potter reports that the law class
attendance is a sixteenth of what it was in past years. "Most new students
are signing up for our auto mechanics classes", he said. "Now that
most vehicles are battery powered, the job is cleaner than the law profession
ever was".
Law firms across the nation are consolidating as the expense of litigation has
skyrocketed, and now consists mainly of the "Big Three". Small
practices have had to close as they find that the licensing terms have been
excessive and new firms are not able to obtain clients and raise capital before
having to pay the fees. "This was the first case I've had this year",
Mr. Spade reports. "I may have to burn my shingle to stay warm this
winter".
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| Authored by: Anonymous on Monday, September 28 2009 @ 11:28 AM EDT |
The website is using the font tag, which most html coders now
days know is depreciated. I.e. the coders are stuck in the
past.[ Reply to This | # ]
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| Authored by: Marc Mengel on Monday, September 28 2009 @ 11:57 AM EDT |
This includes both the kinds of things (i.e., 'eligible subject
matter')
and defining when an idea represents a large enough advance to
warrant
a patent (i.e., the requirements of 'novelty' and 'nonobviousness'.)
After all, protecting trivial, inevitable advances would thwart progress.
(emphasis mine)
There is one issue most of us have with
software patents in a nutshell.
If the patents being issueed really were for
nonobvious advances in the field,
I think folks wouldn't mind them so much.
Instead, you are forever in danger
of writing something which it turns out
violates some patent you never knew
existed, because what is getting patented is
often blatantly obvious, and excessively broad.
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| Authored by: PolR on Monday, September 28 2009 @ 01:34 PM EDT |
Our guests described to premise of the patent system this way.
A
patent may not subtract from that which was already available in the public
domain before the invention was made; it only enriches the public. That is, in
return for the right to exclude others for a period of time, the inventor
discloses to the public something nobody had previously known.
The
problem is patents don't work like this in practice. Case in point: the Alappat
patent.
This is a hardware patent on circuitry to perform anti-aliasing
on an oscilloscope. But because of the legal doctrine of equivalents, the
patents also covers the same rasterizing algorithm when run as software on a
generic computer. The inventor didn't develop the software. He developed the
hardware. The patent application describes the hardware and not the software.
But because of how the law is written, the patent covers the software.
In
this situation software has been removed from public domain without disclosure
of how to code it. The programmer must reverse engineer the algorithm from the
hardware and develop code on his own. [ Reply to This | # ]
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| Authored by: OrlandoNative on Monday, September 28 2009 @ 01:51 PM EDT |
You stated in the article that patents "block the development model"
of *open source*.
This is incorrect. Patents don't block the development model, or even the
distribution model, of a large segment of the "open source" universe.
What they *do* create problems for are *GPL LICENSED* open source programs; and
any *other* such licenses that don't allow for anything other than "royalty
free" distribution and use.
Though the problem here is basically semantics, it's still important. By
definition, code is "open source" if you can get the source code. It
doesn't matter if such access is free, paid for, or whatever - if a
"proprietary" piece of software can be obtained in source form, it's
*still* "open source".
[ Reply to This | # ]
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| Authored by: Eeyore on Monday, September 28 2009 @ 02:28 PM EDT |
Congress was given the power to provide for limited times, to
authors and inventors, the exclusive rights to their contributions to
“science” (the word used for natural philosophy, which is the basis for the
copyright system) and the “useful arts” (the term embracing all manner of
commercially beneficial invention.) Instead of limiting freedom of commerce and
raising prices, these exclusive rights promised, among other things, to
encourage inventors to disclose their ideas and to offer the public free use of
such new inventions after a reasonable period of time.
I
have one question: When did patent trolls become authors or inventors?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, September 28 2009 @ 03:40 PM EDT |
this country was founded, there was
considerable antipathy to
monopolies. Such attitudes traced
back to when the British crown granted
exclusive rights to
its favorites. For example, a monopoly—or patent—on salt.
Patents on inventions were a different animal. They were an
extension of a
person’s natural right to “own” his or her
creative thoughts. The only kind of
patents our founding
fathers blessed, therefore, was a monopoly over new
intellectual work product.
This couldn't be more wrong. There
is no natural right to
own thought - other than in a world of orwellian mind
control, thoughts and ideas are free for anyone to think of
no matter whether
someone has thought that thought before.
The sale and distribution of creative
material (not thoughts
or ideas though) can be controlled by its author for a
limited period through copyright, but creative works most
certainly cannot be
copyrighted.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, September 28 2009 @ 03:51 PM EDT |
"A patent may not subtract from that which was already available in
the public domain before the invention was made; it only enriches the public.
That is, in return for the right to exclude others for a period of time, the
inventor discloses to the public something nobody had previously
known"
This actually makes patents seem reasonably good,
since the genius inventor bestows his knowledge on the ignorant masses who would
otherwise be left for 20 years without any inkling that such technology was
possible, let alone how to create it. How many patents are really like this,
where only one person has a reasonable chance of inventing it within the next 20
years?
If anyone else invents the same thing within the exclusivity
period, then the public loses the invention (since person 2's invention
is the exclusive property of person 1)
So look at the history of
patents, e.g. the telegraph (two inventors racing each other to the patent
office, the winner being the one who paid the most bribes) and ask: is the loss
of the 2nd inventor's invention really worth it?
Why are we rushing to
reward the first inventor when their idea will be independently discovered
anyway within a few years at most? [ Reply to This | # ]
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| Authored by: DMF on Monday, September 28 2009 @ 04:50 PM EDT |
| Since protection of the proprietary software model may be a determining
principle, it would be helpful to show that the model is and long has been
protected effectively by other means. Indeed, software empires have been built
without the exercise of patents. Even with the availability of software
patents, developers of proprietary software rarely use specific patents to
protect their code. Where portfolios exist, they are almost without exception
employed for defensive purposes.
Here's the question: If there were
no patent protection of software, how would the proprietary software model be
protected?
What I'm looking for are mechanisms and histories of how
that has been accomplished. Two examples of mechanism are trade secret and
contract. Is there something that patents protect that these (and other)
mechanisms don't?
[ Reply to This | # ]
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| Authored by: DMF on Monday, September 28 2009 @ 05:04 PM EDT |
| A principle of the patent system is that inventions benefit both society and the
inventor when they can be made publicly available for widespread use while the
inventor receives compensation when someone uses his invention. In other words,
win-win.
In my experience this almost never happens with software and
'business method' patents. Can anyone provide examples where a holder of such a
patent says, essentially, "Here is my invention. This is how it works. If
you'd like to use it, I'll license it to you."? Rather, in most cases the
patent holder finds the "use" of his patent only after the fact. Or if the
patent becomes known it is used merely to prohibit others from using the
invention - contrary to the stated purposes of patents.
So, is there really
a significant business in attracting licensees prior to infringement?
[ Reply to This | # ]
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| Authored by: halfhuman on Tuesday, September 29 2009 @ 11:11 AM EDT |
He gets my vote for the best post, with his Borgesian infinite patent of
software, brought low by a wily diagonalisation in the manner of Cantor.
Bottom line: all software, indeed all maths, are finite symbol strings, even if
in principle there are indefinitely many of them. Rob says they're texts. But
nature is an order of infinity higher. Rob says the space of texts is far easier
to cover with patents than the space of nature.
He is right (of course!). His implication is also right: indefinitely many
patents on the space of nature will still leave plenty of it uncovered---but not
so for texts.
Our access to the space of nature is not hindered by patents. By contrast, even
just a few patents severely damage our access to the space of texts.[ Reply to This | # ]
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| Authored by: pdundas on Tuesday, September 29 2009 @ 01:03 PM EDT |
| So Patents reward the useful disclosure of non-obvious inventions with a
limited-duration monopoly on their exploitation.
Software patents fail on
most or all counts:
- The monopoly is effectively infinite - the rate of
development in software means that an invention is almost certainly long dead
years before the patent expires.
- The Patent does not effectively disclose
the invention in a manner useful to practitioners:
- They are generally
vaguely or obscurely written and rarely provide enough information to implement
them. Nothing useful is disclosed.
- It is difficult to tell whether a given
implementation might infringe the claims.
- Practitioners cannot read patents
on the offchance that a minority might be clear and useful, for fear of
triple-damages for wilful infringement of a useless one owned by a patent
troll.
- What is patented is obvious. A test of whether the obviousness
bar is at the right level is the number of independent inventions of the
"patented idea". The number of independent inventions of software patents seems
unduly high. Especially over the virtual eternity of the life of a software
patent.
Business method patents are not so much a recognition of
property rights as a distortion of the free market. They amount to a means of
preventing competition.
And patents on naturally ocurring gene sequences are
simply obscene.
How long before the patent lobby pushes this insane "IP" law
through in some world trade treaty organisation, in the guise of harmonisation
of law, and proceeds to tax the developing world whenever they have the temerity
to set up a business that infringes one of their bogus "anti-competition
patents" or trespass in "their" market?
Colonisation for the 21st century?
"I claim this land, er, market for Queen Victoria, er, my
shareholders!" [ Reply to This | # ]
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| Authored by: TemporalBeing on Tuesday, September 29 2009 @ 05:03 PM EDT |
From the beginning, a central question has been “What kinds of
things should be eligible for protection?” Philosophically, the approach in this
country has been that the tent should be large: as it was put by the U.S.
Supreme Court in one of the first biotech patent cases, Chakrabarty, “Congress
intended statutory subject matter to ‘include anything under the sun that is
made by man’.” However, the Court has also noted certain exceptions, on policy
grounds, for inventions of a sort that nobody should be able to appropriate
personally: laws of nature, scientific principles, and abstract
ideas.
no problem with the tent being as large as possible;
however, all software falls under 'abstract ideas' - ones that happen to be able
to be
expressed using mathematics that can be processed by a generic computer
in such a way to produce a typically intangible (abstract) result.
If it
produces a tangible result (e.g. directing a laser to etch wood, etc.) then it
almost certainly is directly tied to a specific piece
of hardware that must
also be part of the invention to produce the work (e.g. the laser, laser
controls, etc.).
If there is hardware required to make the invention
work, then it must also be disclosed as a requirement in the patent; else, it
should
not qualify. If no special hardware is required, then it should not
qualify since it is then simply an abstract idea that can be
on any
system.
A patent may not subtract from that which was already
available in the public domain before the invention was made; it only enriches
the public.
most software patents today subtract from the
"public domain", the problem is proving it as required. Most software in the
same technical area
as a patent probably infringes the
patent.
Many patents (and by extension the inventions which
they protect) are clearly valuable based on the amount of money that entities
are willing to spend to license or purchase patents.
this
method of assigning a monetary value for describing the public value of a patent
is flawed - it also leaves out entire areas of works where
there is no money
being exchanged, but there is still value. This is, for example, the case with
F/OSS.
As cast in the Constitution, Congress was given the
power to provide for limited times, to authors and inventors, the exclusive
rights to their contributions to “science” (the word used for natural
philosophy, which is the basis for the copyright system) and the “useful arts”
(the term embracing all manner of commercially beneficial invention.) Instead of
limiting freedom of commerce and raising prices, these exclusive rights
promised, among other things, to encourage inventors to disclose their ideas and
to offer the public free use of such new inventions after a reasonable period of
time.
key here is "limited"; the Congress of the last 50 or so
sessions has been slowly extending such limits every time a corporation
complains it
is going to lose its bread and butter due to the limits expiring,
to which Congress then retroactively applies a new set of limits. This
needs to
stop. Now, this has mostly happened with Copyrights (now life+95 years -
effectively 2x lifespan of the author); but also
applies to a milder case to
patents - with patent renewals near the end of the terms,
etc.
That still leaves the question of what should potentially
be patentable. This includes both the kinds of things (i.e., “eligible subject
matter”) and defining when an idea represents a large enough advance to warrant
a patent (i.e., the requirements of “novelty” and “nonobviousness”.) After all,
protecting trivial, inevitable advances would thwart
progress.
I think the question of 'what' has been rather easily
laid out: (i) anything tangible (e.g. physical, concrete) is patentable; (ii)
all else
only gets the benefits of Copyright, and (iii) specific terms used in
specific markets for specific uses may be Trademarked. It's really
simple and
then leaves the question only for patents on the other aspects of what is
patentable. It only becomes muddy when we try to
mix the tangible and
intangible where they clearly don't belong.
In addition to
machines, tangible objects, and new chemical compositions, advances in
manufacturing methods and the like—or “processes”—were considered important and
justified protection. The question then naturally arose: Do we mean all
processes, just manufacturing processes, or what?"
...
If we
continue to apply the 'tangible' approach, then this becomes easily solved. You
won't be able to patent a 'business method', but you will
be able to patent how
you use a series of robotic machines along a conveyor to make a tangible
product. In fact, there is no need to
have to make an extension for 'processes'
as they are already covered; and again, it only gets muddied as we try to mix
the tangible
and intangible.
In the 1800’s, a number of
important inventions of the industrial revolution were perceived by their
inventors to be definable, at least in part, as processes. For example, the
process of modulating an electrical signal on a wire to communicate either
telegraph or voice signals by wire. The apparatus was also new, but it was
recognized that protecting the apparatus alone was inadequate. Others would
conceive of new and different apparatus to practice the same
techniques.
and the problem is? This exactly shows what a
patent is suppose to cover and what it is not. It should not cover the technique
but the apparatus.
The whole point of a patent is to encourage development,
create new techniques, and encourage people to be able to either use the
existing
inventions for the technique or create a new invention to perform the
technique themselves. If their new invention is too similar to the
existing
invention, then they infringe. If it performs a same technique to achieve the
same result, but the inventions are not similar
then it does
not.
Neither wanted to be confined to his initial
apparatus.
of course they didn't; they wanted the money that
would come if it wasn't. It's greed, and this is what the gov't needs to limit.
By limiting
the inventor to the original invention, the market is free to make
other inventions of the same nature. The courts may have to decide
when two
inventions are similar enough to be the same, and thus one infringes the other;
but that should be the case for explicit things.
For example, with
electrical signalling - Morse invented the telegraph, should he then
automatically get royalties for using eletrical
signally for electrically
induced brakes? No. He should be limited to that the art of the original
invention, and not all possible
art for the extension of science that he
discovered.
In the second case, AT&T v. Excel, AT&T was
challenging a patent on a method of modifying cell phone billing records to
facilitate the billing of roaming calls. The Court basically reinforced that its
ruling in State Street really did apply to method claims and also made clear
that there was no basis for excluding an invention because it was implemented in
software. Both the programmed computer and the method it implemented were
eligible for consideration (and could receive protection if novel and
unobvious.) Suddenly, a new mindset was in order. Methods of doing business and
software-implemented inventions could receive patent
protection.
to which the courts are now responding with Bilski
saying 'oops, we made a mistake'
The Federal Circuit—with all
12 judges sitting as a single panel—affirmed the PTO rejection but created a new
test which requires each method claim to either tie the method to a “particular”
machine or to transform an article or thing to a different physical
condition/state or composition.
this new test is good; and the
normal use of the machine should not qualify. Many defending software patents as
proper claim that since the
computer manipulates bits (hard drive, RAM,
processor, etc.) to perform the work that it is then a machine; however, the
computer itself
is under patents, and this is the normal use of the computer -
not a new and novel use. If the software with a computer plus special
hardware
yielded a physical output from the computer, then that is okay (e.g. a rubber
processing machine that uses a computer+software
as part of the invention for
the production of rubber; but changing the machine to process steel instead
should be considered a 100%
different system as part of the entire invention
has changed, even if it is the same software. Therefore, the software though
shared
between the two should not be covered in and off itself by a patent;
copyright yes, but not a patent.
Let’s acknowledge upfront that
there are imperfections in the operations of the PTO. Much has been written
about some patents improvidently granted due to lax examination in the PTO.
Further, the fact that certain patent claims on software-implemented inventions
generally thought dubious have survived litigation suggests some general
imperfections in our civil litigation system. So as not to “throw the baby out
with the bath water,” however, we believe these actions do not demonstrate that
an overall anti-patent position is beneficial to the
country.
agreed; nothing is perfect though we must strive for
perfection. Patents serve a purpose, but we must also remember their limits,
what they
are good for, and what they are poor at; and use them appropriately.
Though against software patents simply argue that patents are very
poor at
being able to describe software in such a way as to apply a patent to it, and
therefore software should not be patentable. Software
also has the protection
of copyright, which does an excellent job (or at the very least a far far better
job) at protecting the software.
On inspection, one will
actually find that the allowance rate for patent applications for
software-implemented inventions is lower than average, and that applications for
business method inventions are examined under a higher, two-tier level of
scrutiny reserved for them alone. For those applications that do survive
examination and have claims that are still broad enough to justify litigation,
few go all the way to trial and still fewer survive the withering litigation
process and result in significant damage awards.
so what? there
are still thousands upon thousands of bad software patents being granted every
year. Just look at the cache of patents held by
Microsoft, IBM, and others -
most likely, a good majority of the software available infringes those patents.
Just b/c there are fewer
software patents granted than patents granted in other
fields has nothing to do with it.
I can see, however, what the
litigation and upholding litigation+PTO challenges says; but not litigation
alone.
As practitioners, we represent parties with highly
varied interests: one moment seeking to protect an invention and the next
defending a client against a dubious charge of infringing a dubious patent. Our
biases result from years of anecdotal experience. Approached with an open mind,
the same economic behaviors appear to apply to the fields of business and
software as in other fields. Sometimes, patents help create order and
opportunity—especially for smaller businesses and universities—while at other
times they are obstacles (perhaps even unfair obstacles) that competitors find
obnoxious.
I won't speak per business methods as I have no
experience there; but as per software the problem is that all software is
abstract in nature;
and most software overlaps in reusing algorithms, shared
code, etc. to a great degree. Software benefits from sharing more than
restricting;
code is better, more reliable when it is used and reviewed by more
people/projects/products. By nature, software does not do well with
patents.
Even though stallman doesn't like the concept of 'Copyright', it is copyright
law that nonetheless has propelled the multi-billion
dollar F/OSS market into
existence, and even the software market as a whole. The software market was
worth billions (if not trillions)
long before patents were allowed in software.
So there is little reason to see how patents are going to help make billions
more.
In those few cases that do go to trial, we ask
non-technically trained judges and juries to listen to witnesses and make a
decision based on the evidence presented. Then these decisions are reviewed by a
technical community which may have little knowledge of patent law and may not
fully understand what constitutes prior art and what attacks have already
failed. While different results might have been obtained from a technically
trained judge or jury, such as striking one or more patent claims that a lay
judge or jury accepted as valid, there is little empirical data on which to base
this assumption.
such data is easy to find - present the same
case to two different court rooms. In one, the jury is the same random pick; in
the other, the jury
is full of people from the field that the patent is in. Do
this enough times, and you'll have your imperical data. Same applies for
judges.
It's basic science put to practice to collect the
data.
Yet advances in these subject areas require inventions
and investment just as much as new mechanical devices. And providing incentives
and protections for inventions and investments in the software and business
method arenas is becoming more important to the United States with the shift
toward a knowledge-based economy. New ideas and new companies expand the
economy. If a new company’s flagship product is sure to be copied by domestic or
foreign competition, the incentives to develop—and to invest in—the new product
in the first place are significantly reduced.
not all
advancements are propelled by patents; copyrights do a great job at propelling
advancements too.
more important to the United States with the
shift toward a knowledge-based economy.
and such is the
disadvantage of a knowledge based economy. Also, it is important to remember
(which many seem to forget) that a knowledge
based enonomy will not be a
sustainable economy. It is necessary to have knowledge yes, but it is equally
important (if not more so)
to have the basis of the economy be something that
cannot be so easily taken away. If we allow the economy to be mostly built
upon
a knowledge infrastructure, then it will be no better than a house built
on sand, and it WILL tumble.
Even when the invention does not
cost a fortune to develop, marketing costs may still be in the millions or tens
of millions of dollars. No investor wants to back a small company that is going
to have a larger competitor steal its thunder with a copycat product or service,
without recourse.
protecting the money for marketing an
invention is not the purpose of a patent. The purpose of a patent is protect the
invention, and to force
others to have to use the invention or pay royalties on
inventions that are similar enough so as to benefit the inventor. The cost
of
marketing should have zero play in the game. If you are not, you should be
making this clear to such investors - they should market it, and
invest to
market the invention; the question should not be about 'copiable' but about "is
it strong enough to withstand review in litigation
and challenge", nothing
more. If the answer is no, then no amount of marketing is going to save the
investors - that's the risk of doing
business; patents don't protect
business.
“Patents stifle competition, thereby impeding new
businesses and raising prices for products and services.”
I'll
agree here as it applies to most fields; but this only begs the question: what
if the turn over of the whole market in which the patent
exists is faster than
the patents life? For example, software even before patents could be applied
typically would turn over every 2-3 years;
where patents have a 14yr life. How
does that benefit the market?
The obvious answer is that it doesn't. It
hinders the market as it will slow down the market since the market must either
pay up, or wait
the 14 years for the patent to expire - and even then, assuming
that the patent holder doesn't renew the patent.
In a market like
curing rubber, the turn over is a lot slower than 14 years; so this is not a big
deal.
And, I would argue that what the patent holder charges for using
the patent _is_ relevant. A patent holder may charge enough to ensure
that no
one would pay up, thus excluding any other inventions; where as your assumption
is that the patent holder will adjust the
licensing cost to the market demands.
While this may not hurt many other industries, it can cripple the software
industry if, for example,
a company like Microsoft were to price a patent
beyond what any competitor would pay, or even its prime competitor (F/OSS, in
this case);
thus holding back the market as a whole to achieve their own ends
that have nothing to do with the patent. (And if you think companies
wouldn't
do that - Microsoft has been very well known for doing very similar things
across the board; their particular goal is to have
their software and only
their software on all computers; damn the competition.)
Many
times, however, we have seen software developers change their mindset when it is
they who have the great idea that took hundreds or thousands of person hours to
develop into a new breakthrough product. Laissez-faire thinkers become
pragmatists, either out of self-interest or in response to investor pressure,
and ask us how they can protect their ideas and get investors to back
them.
That does not preclude telling them how in the correct
method that such products/ideas/etc. should be protected. Investors may not like
it, but
that doesn't matter. Patents are not about the investors, but the
invention. If the invention doesn't qualify for patent protection then
it
doesn't qualify. If it does, okay. Primary to the discussion is the central
concept of what patents are or are not good for protecting.
Man will
change their mind at the sight of money; but that shouldn't change the law; and
it certainly doesn't change whether or not patents
are good at protecting what
they desire to protect.
Over time, however, the PTO has built
up its resources for searching for software prior art, has adopted a peer review
program that allows the industry to cite prior art products and the like that
might not be found in a literature search, and has hired and trained computer
scientists as patent examiners.
interestingly, all this has
only happened in the last 5 years or less. There is still a great, great
repository of software works that are,
and never will be, part of the library;
but yet constitute prior art. The library you mention is only a fraction of the
size of the
software written in any given year; how then is it suppose to
catalog what is or is not prior art for the entire industry? it
can't.
Unlike other fields, great amounts of software are developed at
a far faster rate than any other field can change. New concepts are
applied on
the fly without consulting a book, or others; but as people approach the
problem. Writing software is much closers to
very fast paced scientific
research than any engineering field. (And software engineering is still very
very very poorly defined
despite great attempts to do so. What is defined is
ignored by 90+% of the software industry, and most businesses ignore it
simply
out of cost.)
For example, the insurance industry has
long been a copycat industry. With little or no IP protection available to
support proprietary rights, an innovator quickly sees others copying its new
policy features. That could now change. An innovator might secure a new
beachhead for a product and force a competitor to take a license or to tilt its
products in a different direction. The lessons of theory and history suggest
that the public will benefit because the variety of product offerings available
to it will increase. Instead of competing solely on price, financial performance
and client service, insurance companies may have to learn to be more creative
and distinguishable in their offerings. Time will tell.
agreed
time will tell; but I doubt it will have the outcome you are expecting. It'll
likely more show a failing in the ability of competitors to
compete. You'll
have a split market and customers paying more for it as one company will be the
only one (or one of few) to offer some service
and customers will be hard
pressed to get the insurance package they want and that fits them best since no
one offers the whole deal, just
bits and pieces based on who patented what.
It'll seem like market collusion, but be brought on by patents instead. There's
a reason
why we try to prohibit market collusion. I don't think I need to say
more.
But overly broad claims are a consequence of the “new”
and “nonobvious” hurdles being incorrectly cleared, and the fix for overly broad
patents should not be the elimination of patents. Instead, the focus should be
on improvements to prior art searching capabilities, and training for patent
examiners and patent agents.
I'll agree if you can fix the
overly broad issue we may have a difference scenario. However, your fix doesn't
resolve it. The fix to resolving
an overly broad issue to is refine how things
are defined, THEN we can worry about the searching capabilities. (Refinement of
scope
naturally does go along with the training
aspect.)
“Abstract ideas should not be patentable, and
therefore patents are for physical things, not software or business
methods."
The law is clear, and courts have consistently ruled that abstract
ideas are not patentable. The issue here, then, is the interpretation of the
term “abstract.” This has been a difficult question for the courts but, in many
cases, courts have held that an abstract idea—such as a mathematical algorithm
in and of itself—is no longer considered abstract when it is tied to a specific,
practical application such as a structure or process. Critics of software
patents often have a different view of the meaning of “abstract.” In some cases,
people view software as abstract because it can be represented by logic charts.
But logic charts can be used to represent mechanical devices, and software is
ultimately implemented in a physical manner. In other cases, software is
described as abstract because various terminology can have flexible meanings.
This is a problem of clarity rather than a fundamental
problem.
I'll agree here; but also note: the definition of
abstract can be pretty clear: it is anything that is NOT concrete - e.g.
tangible. I'm more
than happy to allow software to be _part_ of an invention
that requires a special purpose computer to perform a physical task;
however,
assigning software to a general purpose computer, the sole purpose of
which is to run software, does not consistute the requirement.
Software
being run on a general purpose computer should not qualify; to qualify, it must
be specific to a very specific kind of computer
and hardware. Otherwise, you
run into the absurd - since no two computers carry the same exact
software+hardware configuration, every
computer would therefore be separately
infringing. The model for software patents should there ever be one must be such
that it produces
a realistic result that is predictable. You can't have the
absurd - having the customer have to figure out whether their specific
computer
infringes whenever new software (or a different webpage!) is loaded
onto the computer. Should a software patent mechanism survive,
it must be
determinable solely by the software creator, only achievable when tied to a
special purpose computer, which requires specific
non-general harware to
perform a specific tangible result.
Business methods and
systems to implement them, as well as software-implemented inventions, are
inherently no more abstract than is the theory behind FM radio or data
compression or a continuously variable transmission. All rest on ideas and
concepts that had to come into someone’s head at some time, and all require some
concreteness to bring them into the stream of commerce.
Again,
a perfect example for why software should not be patentable. While you can
patent the radio mechanism that produces the radio signal, you
cannot patent
the radio signal itself. This is more akin to software and a computer
respectively than you seem to realize having given
several examples of this
very nature in your argument FOR software patents - ones the explicitly show the
opposite of your intent.
[ Reply to This | # ]
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| Authored by: Jose on Wednesday, September 30 2009 @ 12:02 AM EDT |
>> If one assumes that but for the applicant’s contribution, the inventive
advancement that a patent represents would have not come about, or at a minimum
would have been significantly delayed, then the patent does not represent a
taking from the public, but rather a contribution of something new.
One, many patents being awarded don't fall into this category, so this is a
horrible assumption to make across the board without a real test for it. As
evidence, many people create infringing products without knowledge of the patent
or other invention. This suggests the patents are being awarded to inventions
that would come into existence regardless (perhaps as Necessity calls).
Two, who says that the person that applied for the patent and got it didn't
leverage much (even the entire idea) by way of insight and discussion into this
problem, eg, via the Internet, and which they obtained without any restrictions?
I think it's naive to assume any single person contributes all that much --
certainly not when we are talking about as many inventors as there are people
that contribute ideas and solutions to software development. And is it fair to
give this person protection (for 20 years!) and nothing to the others? It's
costly and inefficient to go out and write a patent and then to pay the fees.
The skilled opportunists isn't making the big contributions, but they are being
awarded the massive monopolies. Copyrights are automatic so that everyone is
protected. Why aren't patents automatic? Since they aren't, this suggests to me
there very likely is a fairness and infringement on liberties problem here.
Three, even if the invention is not easy to come by (I think this is rare),
chances are large that it would happen in significantly less than 20 years, at
least if there was a need for the invention at some point. In this case, the
person keeps being able to block hundreds or even potentially many many
thousands of other inventors even though after say 10 years many would be on top
of this adding many extensions. Each person blocked times the remaining 10 years
means that for the sake of 20 man years of monopoly, thousands to perhaps over a
million man years get sacrificed. Remember that the monopoly takes from the
whole world of inventors to give to a single inventor. Where is the equity?
Truly, look at number 2 above and tell me if that sounds fair. Nothing in the
patent application or selection process tests against that. With so much FOSS
and discussion forums, there is a minefield of nuggets out there from which the
vast majority will be barred.
I am also curious about what is the obviousness test. I get the impression that
if a college student in a top university doesn't see the same solution
immediately (as expressed in very general terms in the patent claim), but would
perhaps take a few days to come up with it, that then this would pass as being
non-obvious. Of course, in many cases it's much worse than this. So how exactly
are we to believe other than that a typical patent has a decent chance of giving
society as little as hours or days or weeks of anticipation yet ultimately
taking perhaps countless of inventor man years from society (as we work towards
the end of 20 years of full exclusion)?
When it comes to software, this problem of potentially taking much more than
what is given would mostly be solved if we were dealing with something like
copyrights, as these come with a much more narrow scope. In fact, software
already get copyright protections. Does the USPTO know this!??!
A couple last notes:
I thought a patent was suppose to be an incentive to allow a profit to be made
from a very large upfront investment. Of course, this model fails to account for
the evidence of how many are willing to work on FOSS without caring about
patents at all but do so because it is stimulating/gratifying in many ways;
helps their contract business, employment possibilities, and/or existing job;
and/or is done in exchange for the many-fold increase in other FOSS they receive
in return.
Further, in all other areas of traditional patent applicability, you can expect
that manufacturing and distributing will use up lots of time and costly
resources. With software these require somewhere near $0 and 0 seconds to be
accomplished. Another way to express this is to say that 10 years is a
"lifetime" when it comes to software; thus, giving software patents
the benefit of the doubt (which I don't), I'd expect the protection period to be
closer to something like 5 years if we were to guess a single conservative
number.
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| Authored by: Jose on Wednesday, September 30 2009 @ 01:44 AM EDT |
>> Hence, it is no surprise that a recent study found great importance for
small companies in patents for software-implemented inventions. R.J. Mann, “Do
Patents Facilitate Financing in the Software Industry?,” Texas Law Review,
March, 2005.
I expect that this doesn't compare a no patent system with a patent system, but
that it instead compares a company without patents to one that has them, each
subject to the effects of a patent system.
An analogy would be comparing the potential for an individual to have sway
within a lawless society based upon whether or not the individual has automatic
machine guns with abundant ammunition. Clearly, having these is a tremendous
advantage that will allow you to go much further and be much more competitive,
but that doesn't mean we wouldn't be better instead with a system where law and
order ruled the day and such weapons were not useful except recreationally or as
a last resort (or were otherwise severely restricted). If such a lawless society
were a given, I too would put my money behind the man with the big machine
guns.
>> Very few of the resulting patents end up in litigation, and about 96%
of filed patent infringement lawsuits never make it to trial, being dismissed or
settled far short of that point.
Reconsider this data in the context of the analogy of the machine guns in the
lawless land:
Most people will avoid a violent confrontation and instead will
"settle" once they see the other's weapons.
>> In those few cases that do go to trial, we ask non-technically trained
judges and juries to listen to witnesses and make a decision based on the
evidence presented. Then these decisions are reviewed by a technical community
which may have little knowledge of patent law and may not fully understand what
constitutes prior art and what attacks have already failed. While different
results might have been obtained from a technically trained judge or jury, such
as striking one or more patent claims that a lay judge or jury accepted as
valid, there is little empirical data on which to base this assumption.
Expect bad results, no matter how knowledgeable you are, from following bad
laws.
>> In the authors’ experience, when there is clear and unmistakable prior
art that shows the invention to have been known by the public prior to the
inventor having conceived it, there is usually a withdrawal or settlement of the
case.
There are many flaws with awarding a 20 year patent to the first person and
nothing to the would-be second place, third place, etc, finisher, in each and
every single case where a patent is awarded and awarded in doubt as to how long
it would have taken society to repeat the invention independently.
And this is assuming the patent was awarded to the first and not to someone that
copied most of the ideas or got significant inspiration from others or online
discussions. This is particularly important when analyzing the issue of equity
and fairness in light of all the hints and clues that are accessible in an
Internet world, in particular, in a world with so much FOSS being created
constantly.
Prior art has a standard that must be met and does not imply "the first to
come up with something". For example, it doesn't account for cases where
many routinely come up with the invention privately and leave it at that (or
simply solve the problem for the clients as a matter of routine without
publishing a paper).
And speaking of the Internet, this is a game changer. Nothing like it has ever
existed in the history of mankind. Collaboration has been revolutionized.
Speaking of software, nothing like it has ever existed. Marginal costs to
manufacture and distribute and experiment are near $0 and the time taken
approaches 0 seconds, costs that for any other patentable material could easily
go into the millions USD and time that would go into months rather easily.
>> There will always be results with which experts will disagree, if for
no other reason than they have a different concept of what constitutes
obviousness.
It's a broken law that awards so much privilege to so few for meeting such a low
bar.
Does an invention that takes a smart college student one week to deduce count as
obvious?
If this counts as nonobvious, then why are we allocating 20 years of prohibition
time, during which neither of these college students nor any of their more
experienced peers can expect to safely participate in the further development of
such inventions? So for not filing (or not filing quick enough) for an exclusive
monopoly to cover a week's worth of thought, you risk having to wait 20 years to
get back to work on that problem?
To justify such a law, I would expect that the number of inventors affected
negatively, in practice, to be very very small, perhaps because few are able or
willing to play the game. This is not the case for software, where the bar is so
low that perhaps even millions can participate at least in quasi-regular
fashion. The Internet shrunk the size of the planet and made borders disappear.
The cheap PC (laboratory and manufacturing plant) made the costs to play the
game marginally nil. The key material of patentability, the software recipes,
get turned over in seconds sometimes.
>> Because of the positive incentive aspects of the patent system, within
the universe of mechanical, pharmaceutical, chemical and electrical inventions,
patents are generally (though not universally) accepted as a beneficial policy
or, at worst, a necessary evil. Why then, do software-implemented and business
method patents stir so much debate as compared to more “traditional” patents?
I have been addressing this, but let me ask this:
How many individuals do you know that produce and distribute their own
mechanical or pharmaceutical, or chemical... inventions to thousands or even to
millions of others on a weekly if not daily basis?
How much would it cost to play the game for any of these different types of
inventions (in terms of time and/or USD)?
See, these details are not insignificant at all! These show just how different
software is from the vast majority if not from all other fields where patents
are being granted.
This difference is of greater contrast today than it was just years ago (when
FOSS and the Internet were smaller), and it is expected to keep growing as FOSS
grows in popularity and a greater portion of the world gets online and is able
to contribute.
>> Yet advances in these subject areas require inventions and investment
just as much as new mechanical devices.
Need I ask the questions again?
How many individuals do you know that produce and distribute their own
mechanical or pharmaceutical, or chemical... inventions to thousands or even to
millions of others on a weekly if not daily basis?
How much would it cost to play the game for any of these different types of
inventions (in terms of time and/or USD)?
>> And providing incentives and protections for inventions and investments
in the software and business method arenas is becoming more important to the
United States with the shift toward a knowledge-based economy.
Yet... yet many more each day find the incentive to participate in FOSS without
taking out patents and, further, creating under very liberal copyright
licenses.
There are existing incentives (obviously) that are very strong but without the
drawbacks of patents. Of course, you can always find people that prefer patents.
What you have to ask is if the majority gain or lose from a patent system. Do
software patents "promote the progress of science and useful arts?" I
clearly think they don't, and, with due respect to the author, who did make a
presentation that touched many important issues, I don't think the author nearly
considered many of the important points that I think fairly clearly point to
software patents being something best abandoned (made unconstitutional, etc).
>> New ideas and new companies expand the economy. If a new company’s
flagship product is sure to be copied by domestic or foreign competition, the
incentives to develop—and to invest in—the new product in the first place are
significantly reduced.
There is a much lower risk of loss when it's so inexpensive to manufacture and
distribute. More importantly, because of FOSS, today there is a lowered need to
actively seek out such "risk-taking" companies or investors.
Put another way, there are already many quality inventors inventing without
taking out patents, or..
.. who are taking out patents only because their employers pressure them to do
so, since in a world of software patents, not having them is a serious
liability. [Refer back again to the machine gun analogy.]
>> That is not to say that no incentives would exist, as there may be a
sufficient marketing “first-mover” advantage, but the overall incentives would
be reduced.
Did Microsoft need patents to build their monopolies? The same can be asked of
many other vendors that rely on trade secrets. Closed source is a very powerful
weapon.
More incentives is good so long as these incentives don't interfere with the
inventions of the majority that are already taking place. We need incentives
that will not misappropriate resources or take more from society than they
give.
The large incumbent players like patents because it gives them a very
significant advantage over new entrants. If a new entrant has 20 patents, an
incumbent has 200 or 2000 or more.
The patent "troll" companies like patents because it's free money.
The average business and user simply ends up paying more for this patent
system.
The average FOSS contributor doesn't seek patents and is negatively affected by
them. [One can't opt out of the system, even if one does not read patents.] In
fact, the most popular FOSS licenses have clauses that add measures of
protection from patents.
And as the patent system grows, it will be more and more difficult to enter the
market to develop software without spending lots of money to write or buy
patents first. That high entry barrier is what the incumbents like.
Patents are leading to fewer able to compete effectively.
>> If investors are not comfortable about the non-IP advantages being
sufficient to permit a reasonable return on a risky investment, they simply will
not invest. Time and again one of the first questions potential investors ask us
is whether there will be good patent protection available when an invention is
readily copyable by competitors.
See the machine gun analogy at the top.
>> No investor wants to back a small company that is going to have a
larger competitor steal its thunder with a copycat product or service, without
recourse.
Many individual investors daily are most clearly proving that statement
incorrect by voting to invest in FOSS.
The software market is not the usual market, so going by the usual metrics won't
do. You'll run up against many contradictions or predictions that don't agree
with reality.
See the machine gun example. When others have patents, you expect patents, but
that doesn't mean investments would die if there were no patents for anyone. It
might mean that a few of the participants (namely, the incumbents and the
"trolls") would not acquire as large of a ROI, but that is normal in
any market that is highly competitive as has become the software market with the
proliferation of FOSS.
Competition is not bad for most in society. It is good for consumers and for the
larger number of added competitors.
Please, stop trying to push patents as a way to remove competition.
Coincidently, iirc, even buyouts for hundreds of millions of dollars have been
executed for access to the copyrights, brand, and business relationships.. but
no or few patents.
I think Xen and MySQL AB are examples. And it's almost **shocking** (if we judge
by the traditional metrics) when you consider the revenues, the earnings, the
open source nature, the existing competition, and the small or modest
marketshare of these two companies right before buyout.
Fact is that copyright pays.
Liberal copyright terms enables the vast FOSS.
Trade secrets enable monopolies.
Clearly a new set of metrics is needed to analyze this market, and clearly there
are many ways to motivate inventors or to make a buck without resorting to
patents. Worse, if we resort to patents, we move from a lawful society to a
lawless one.
Because software patents are unconstitutional.
PS: It's clear (to me anyway) that to judge if we are promoting the progress of
science and the useful arts we must analyze these monopoly grants within the
context of the existing society. The Internet and software are game-changers.
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| Authored by: ScaredDeveloper on Thursday, October 01 2009 @ 02:28 AM EDT |
Software is like a very detailed contract between the programmer and the
computer. It spells out the exact steps to be taken, and what to do at any
given decision point. It must be constructed with perfect language, otherwise
it doesn't work.
Now, imagine a world where every type of contract could be patented. There are
now over 200,000 patents on every imaginable type of contract that you could
ever write for any conceivable purpose, and multitudes of variations of these.
How exactly can you write a simple contract that won't "infringe" on
anyone's patented contracts?
You might argue "prior art" when you try to make an employment
contract for a client, but what if Microsoft has a patent on it, and they sue
you for infringement? That could cost you millions (well, you could represent
yourself, but that might take up all of your time for several years).
In my opinion, the specific language used in a contract might be reasonably
copyrighted, but preventing anyone from writing a new contract (using their own
specific language) that accomplishes the same goal as some other contract that
someone else wrote (and patented) is absurd. And so are Software Patents.[ Reply to This | # ]
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