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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
Saturday, September 26 2009 @ 09:02 PM EDT

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.

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

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.

__________________

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.


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

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?


  


The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against | 485 comments | Create New Account
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Corrections
Authored by: LocoYokel on Saturday, September 26 2009 @ 09:05 PM EDT
Please title error -> correction

with details in body

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News Picks
Authored by: LocoYokel on Saturday, September 26 2009 @ 09:06 PM EDT
Any discussion on the news picks here.

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Off Topic
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.

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I liked the arguments that Software Patents are no different than other patents
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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But they make no arguments!
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.

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The need for really clear lines
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

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One Idea
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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Time and scale
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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My real life case
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.

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Ag
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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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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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From Gottschalk to State Street. Some questions.
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

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doesn't look wise to stress open source
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"

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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.

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"natural right"
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 | # ]

  • "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
The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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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Blatant example of what's wrong
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

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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.

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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 | # ]

The Arguments Against Certain Patents
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

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Patents and economics.
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.

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Leeching
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

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  • Leeching - Authored by: proceng on Sunday, September 27 2009 @ 02:20 PM EDT
The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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.

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Tried argument by attorneys ...
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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The public loses nothing?
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.

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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.

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How can a person "own" a thought?
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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These are not the real arguments.
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.

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Overly broad and non obvious:
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.

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The mostly missed point
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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The Arguments For Patents
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.

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What makes software patents different: The fairy tale of the patent library of Babel
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.

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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.

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The difference between the summary and reality...
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...

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working models... bring them back
Authored by: Anonymous on Sunday, September 27 2009 @ 07:31 AM EDT
that will stop patenting ideas...

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It's This Simple
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.

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No reason to exlcude art works
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?

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Patenting ideas
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.

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Patents are for the common good
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.

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Business process patent - France
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.

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Classic strawman.
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.

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Current IP laws (all of them) are highly inefficient: The case of positive externalities
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.

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For over 200 years there were no SW or business methods patents...
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.

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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?


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Looking for the "mathematical programming language"
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

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How many patents go into a salable thing?
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

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How to fix the patent situation?
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

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The economics of the FOSS development model
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.

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Software/Business Methods Patents are Inherently Different and More Dangerous than Others
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

  1. No additional physical resources: no nuts, bolts, screws, etc.
  2. No manual acts of assembly: no need to screw pieces together, etc, and
  3. 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)

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Fell at the first hurdle as far as I can see...
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.

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Patents and Licensing
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.

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The balance between disclosure and profit loss no longer exists
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

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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
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.

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    Why Software is Maths - A Summary of the Argument
    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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    The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
    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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    CadTrak
    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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    Maths and Application of Maths - Where to Draw the Line
    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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    The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
    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 | # ]

    Some premises worth questioning
    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.

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    • Ex-Cell-O Corp. - Authored by: Anonymous on Monday, September 28 2009 @ 06:37 AM EDT
    The actual invention vs. the costs to explore laws of nature around it
    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

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    Splitting Hairs
    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 | # ]

    Local lawyer sued
    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".

    [ Reply to This | # ]

    VAERS IE/Netscape article
    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 | # ]

    They hit one square on the head...
    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.

    [ Reply to This | # ]

    The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
    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 | # ]

    PJ, you need to make sure your terminology is correct.
    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 | # ]

    When did patent trolls become "authors and inventors"?
    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 | # ]

    No natural right to own thoughts.
    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 | # ]

    Every idea has precisely one inventor?
    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 | # ]

    How can the proprietary model be protected?
    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 | # ]

    Why protection? Why not revenue?
    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 | # ]

    And the winner is ... Rob Winter!
    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 | # ]

    The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against
    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:

    1. 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.
    2. 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.
    3. 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 | # ]

    Point by point...
    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 | # ]

    The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Ag
    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.

    [ Reply to This | # ]

    Is it possible to respectfully say that I believe the author is in denial?
    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.

    [ Reply to This | # ]

    How to put a Lawyer in a Programmer's shoes...
    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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