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SFLC files Bilski brief: Software should not be patentable and don't forget the 1st Amendment
Friday, October 02 2009 @ 11:59 PM EDT

The Software Freedom Law Center has now filed its brief in Bilski. You can read it online here, as well as download it as a PDF or as Postscript. It raises three major points: 1) software is just algorithms for computers in human readable terms, and algorithms are not patentable; 2) excluding software from patentable subject matter encourages innovation in software; and 3) the First Amendment prohibits permitting the patenting of abstract ideas. I think you'll find that last point the most interesting.

First, here's why they argue that software standing alone isn't patentable subject matter:
Software standing alone cannot be patentable subject matter under 35 U.S.C. § 101, because, as this Court has repeatedly recognized in an unbroken series of cases extending over more than 130 years, “An idea of itself is not patentable.”...

Thus, software standing alone, without the presence of a special purpose machine or the act of transforming a particular article into a different state or thing is merely information, a representation of an algorithm or algorithms, and not a “process” within the meaning of this Act....

The holding of Benson is properly applicable to all software, because a computer program, no matter what its function, is neither more nor less than the representation of one or more algorithms. Further, just as claiming fifty — or even a thousand — laws of nature is no more patentable than claiming a single law of nature, no form of software, regardless of how many algorithms or formulas it comprises, is patentable: It will always be merely and solely made up of algorithms for computers to execute, written down in a form comprehensible to human beings for them to study and expand upon.

Amen. Where does the US Constitution come into this? Because patents block all use, with no fair use exception as with copyrights, so if you allow patents on abstract ideas, then patents block the expression:
This Court held in Eldred v. Ashcroft, 537 U.S. 186 (2003), that the First Amendment precludes the extension of statutory monopolies to abstract ideas. Eldred, 537 U.S. at 219. As you there said, the near-simultaneous adoption of the Patent and Copyright Clause and the First Amendment indicates that these laws are fundamentally compatible. This compatibility, however, depends on a construction of the patent and copyright laws that preserves First Amendment principles, including the freedom to communicate any “idea, theory, and fact.” Id....

The presence of a limiting principle is even more necessary with respect to patent law than with respect to copyright, because, as you observed in Eldred, “the grant of a patent... prevent[s] full use by others of the inventor’s knowledge.” 537 U.S. at 217 (emphasis added) (internal citation omitted). Patents can and do limit the application of knowledge to produce a new machine or to transform an article into a different state or thing, but they cannot constitutionally limit the communication of knowledge or ideas. Eldred teaches that, without this limitation, determining the scope of patent eligibility in each individual case would raise First Amendment questions of great difficulty. Patent law also recognizes no analogue to fair use, previously described by this Court as the second bulkwark of constitutional harmony between copyright and free expression. 537 U.S. at 219-220. The absence of any provision for fair use substantially increases the constitutional difficulty when patents are sought and granted for expressions of abstract ideas.

Therefore, patents on software standing alone, which could be infringed by the dissemination of computer program source code as well as by the execution of such code by a special-purpose tool or in the course of an industrial process with a material result, disturb the “definitional balance” between the First Amendment and the Patent Act. Eldred, 537 U.S. at 219. In its unprocessed source code form, software is merely the expression of abstract ideas in human language — a description of a sequence of steps that will produce a particular result (i.e. an “algorithm”). The source code of a program which performs the steps described in a software patent is distinguishable from the literal patent only in that it expresses the same steps in a different language. Therefore, since anyone may copy or publish the actual patent without infringing, it must also be permissible to communicate its claims in source code form.

The sharing of source code is also essential to “scholarship and comment,” two categories of speech recognized in Eldred and Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 560 (1985), as particular First Amendment concerns. Computer science textbooks, for example, rely heavily on source code and pseudo-code to communicate concepts and describe useful algorithms.... Likewise, computer science students are often required to express their answers to test questions in a real or hypothetical programming language. And without the use of source code, it is difficult for developers to comment on whether an idea can be implemented, to comment on an algorithm’s performance, or to suggest improvements.

Moreover, First Amendment concerns cannot be avoided by exempting source code and limiting patent protection to software which has been converted to executable form, or which has actually been executed. Recent rulings, such as the Federal Circuit’s decision in Metabolite Labs, Inc. v. Laborator Corp. of Am. Holdings, 370 F.3d 1354 (Fed. Cir. 2004), cert. dismissed, 548 U.S. 124 (2006), demonstrate that secondary liability would still restrict the communication of ideas expressed in source code. In Metabolite, a medical testing laboratory was successfully sued for inducement to patent infringement for telling doctors what steps to take to correlate the presence of amino acids in body fluids with a vitamin deficiency. 370 F.3d at 1358. Once communicating the content of a patent to doctors is held inducement to patent infringement, constitutionally-protected communication among programmers will inevitably be chilled.

This result would be a restriction on the expression of abstract ideas. The court below correctly interpreted the Act to avoid this dubious outcome, by requiring more than an abstract expression of an idea: either a machine specially adapted to the implementation of that idea, or a transformation of the physical environment mediated or controlled by software. Any other construction of the statute would raise serious constitutional questions.

You don't want to miss footnote 2. They respond directly to Lee Hollaar's brief, his slur against FOSS developers.

Here's the press release, followed by the brief:

Software Freedom Law Center Files Brief with Supreme Court Arguing Software Cannot Be Patented

Today the Software Freedom Law Center (SFLC), provider of pro-bono legal services to non-profit developers and distributors of free and open source software, filed a brief with the United States Supreme Court arguing that software standing alone cannot constitutionally be patented.

In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those "tied to a particular machine or apparatus," or which "transform[s] a particular article into a different state or thing," a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs.

"Software patenting has been a scourge in the global technology industries, let loose by a misinterpretation of US patent law by lower court judges biased in favor of patentability," said Professor Eben Moglen of Columbia Law School, founding executive director of SFLC. "Over the last twenty years, everyone from Microsoft to academic computer scientists to hobbyist developers have been hassled, interfered with and forced to pay legal fees and royalties sometimes reaching into the hundreds of millions of dollars on the basis of patents that should never have been issued in the first place. This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas."

SFLC's brief supports the position that software is unpatentable by showing that software is merely a set of detailed instructions in a language that humans can understand and computers can execute, no more subject to patent monopolization than a mathematical equation or the precise description of a law of physics. Mathematical expressions and facts of nature cannot be patented, as the Supreme Court has repeatedly held since the mid-nineteenth century. SFLC's brief also shows that software patents hinder innovation in software, and thus run counter to the Constitutional authorization of patents "to promote the progress of science and useful arts." "Everyone would have been better off if software had never been patented," Professor Moglen says. "Now the Court can correct the mistakes of the lower courts, talented programmers everywhere will breathe easier as they invent our future, and we will all have better technology at lower prices. That's the value of keeping ideas free, as in free speech."

And here's the brief:

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

No. 08-964

____________________________

In The

Supreme Court of the United States

_______________________

BERNARD L. BILSKI and RAND A. WARSAW

Petitioners,

v.

DAVID J. KAPPOS, Under Secretary of
Commerce for Intellectual Property and
Director, Patent and Trademark Office
Respondent.

_______________________

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

_______________________

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

_______________________

Eben Moglen
Counsel of record
Daniel Ravicher
Michael A. Spiegel
Mishi Choudhary
Aaron Williamson
Software Freedom Law Center
[address, phone]

October 1, 2009

_________________________________________________________

Question Presented

Was the Court of Appeals correct in holding that software standing alone is not patentable subject matter?

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . 2

I. Software Is Algorithms For Comput-
ers In Human Readable Terms, And Is
Therefore Not Patentable, As This Court
Has Repeatedly Held . . . . . . . . . . . 3

II. Excluding Software From Patentable
Subject Matter Maximizes Innovation
In Software . . . . . . . . . . . . . . . . . 7

III. The First Amendment Prohibits Con-
struing The Patent Act To Permit The
Patenting Of Abstract Ideas . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . 15

i

TABLE OF AUTHORITIES

Cases

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

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

Eldred v. Ashcroft, 537 U.S. 186 (2003) . . . . . . . passim

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

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

Harper & Row, Publishers v. Nation
Enters.
, 471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . 13, 14

Le Roy v. Tatham, 55 U.S. (14 How.) 156 (1853) . . . . . 5

Metabolite Labs, Inc. v. Labratory Corp. of Am.
Holdings
, 370 F.3d 1354 (Fed. Cir. 2004) . . . . . 13, 14

Microsoft v. AT&T, 550 U.S. 437 (2007) . . . . . . . . . . . 2, 3

O'Reilly v. Morse, 56 U.S. (15 How.) 62 (1854) . . . . . . . 4

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

Rubber-Tip Pencil v. Howard,
87 U.S. 20 (Wall.) 498 (1874) . . . . . . . . . . . . . . . . . . . . . . 2

ii

Constitutions, Statutes, and Rules U.S. Const., art. I, § 8, cl. 8 . . . . . . . . . . . . . . . . . . . . passim

U.S. Const., amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

J. Bessen and M. Meurer, Do Patents Perform Like
Property?
, Academy of Management Perspectives, pp.
8-20 (Aug. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Brian W. Kernighan and Dennis M. Ritchie, The C
Programming Language
(Prentice Hall 1978) . . . . . 13

"To Promote the Progress of . . . Useful Arts," Report
of the President's Commission on the Patent System
(1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

Interest of the Amicus Curiae

Much of the world’s most important and most commercially significant software is distributed under copyright licensing terms that give recipients freedom to copy, modify and redistribute the software (“free software”).1 One could not send or receive e-mail, surf the World Wide Web, perform a Google search or take advantage of many of the other benefits offered by the Internet without free software. Indeed, this brief was written entirely with free software word processors, namely OpenOffice, GNU Emacs and LATEX, each of which are not just competitive with or superior to non-free software programs, but which also provide their users with the freedom to improve the program to fit their needs and reflect their desires.

The Software Freedom Law Center (“SFLC”) is a not-for-profit legal services organization that provides legal representation and other law-related services to protect and advance free software. SFLC provides pro bono legal services to non-profit free software developers and also helps the general public better understand the legal aspects of free software. SFLC has an interest in this matter because the decision of this Court will have a significant effect on the rights of the free software developers and users SFLC represents. More specifically, SFLC has an interest in ensuring

1

that limits are maintained on the reach of patent law so that Free and Open Source software development is not unreasonably and unnecessarily impeded.

Summary of Argument

In Microsoft v. AT&T, this Court recognized that “[a]bstract software code [uninstalled in a machine] is an idea without physical embodiment.” 550 U.S. 437, 449(2007). The court below correctly decided that, on the basis of this Court’s prior holdings, such abstract ideas without physical embodiment cannot be the subject of a statutory patent monopoly.

Software standing alone cannot be patentable subject matter under 35 U.S.C. § 101, because, as this Court has repeatedly recognized in an unbroken series of cases extending over more than 130 years, “An idea of itself is not patentable.” Rubber-Tip Pencil v. Howard, 87 U.S. (20 Wall.) 498, 507 (1874). The court below correctly held, therefore, that the Patent Act should be interpreted so that computer software can contribute to the claims of a patent only to the extent that this software is combined with a special-purpose machine or is used in a “process” that transforms matter, like the rubber undergoing vulcanization in Diamond v. Diehr, 450 U.S. 175 (1981). The Federal Circuit’s conclusion on this point is the only outcome consistent with the prior teachings of this Court. It also represents the outcome best calculated to produce maximum innovation in the production of computer software under contemporary technical conditions. Any other holding would not only breach the line previously established by the decisions of this Court between patentable art and processes on the

2

one hand and abstract ideas or facts of nature on the other — in doing so it would also raise grave constitutional issues under the analysis set forth by this Court in Eldred v. Ashcroft, 537 U.S. 186 (2003).

I. Software Is Algorithms For Computers In Human
Readable Terms, And Is Therefore Not Patentable, As This Court
Has Repeatedly Held

The Court of Appeals for the Federal Circuit held below that the presence of a particular machine or apparatus or the transformation of a particular article into a different state or thing turns the abstract ideas expressed by a computer program code into a “process” within the meaning of the Act. This conclusion correctly follows from this Court’s prior holdings.

This Court has repeatedly held that subject matter which would have the practical effect of preempting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection. Further, in Microsoft v. AT&T you also stated that abstract software code is an idea without physical embodiment and is merely information — a detailed set of instructions. A computer program, no matter what its function, is nothing more or less than the representation of an algorithm. It is not conceptually different from a list of steps written down with pencil and paper for execution by a human being. In no uncertain terms, this Court in Gottschalk v. Benson, 409 U.S. 63 (1972), held that software, which contains and upon command executes algorithms that solve mathematical problems through the use of a computer, was not patentable under § 101.

3

Thus, software standing alone, without the presence of a special purpose machine or the act of transforming a particular article into a different state or thing is merely information, a representation of an algorithm or algorithms, and not a “process” within the meaning of this Act.

Confronted with the rise of new technologies, this Court has addressed the issue of patentable subject matter several times. Benson, 409 U.S. 63; Parker v. Flook, 437 U.S. 584 (1978); Diamond v. Chakrabarty, 447 U.S. 303 (1980); Diamond v. Diehr, 450 U.S. 175 (1981).

Since before the Civil War, this Court has consistently made it clear that subject matter which would have the practical effect of preempting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection. O’Reilly v. Morse, 56 U.S. (15 How.) 62, 113 (1854); Benson, 409 U.S. at 71. These cases effectively establish a clear boundary of ineligibility for patent protection to safeguard the fundamental constitutional requirement that laws of nature, abstract ideas, mathematical propositions and algorithms be left unrestrained by patents.

This Court stated in Flook that to be eligible for patent protection, “[a] process itself, not merely the mathematical algorithm, must be new and useful.” 437 U.S. at 591, observing also that it is “incorrect [to] assume[] that if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of § 101... .” 437 U.S. at 593. Such an assumption, the Court said, is based on an impermissibly narrow interpretation of prior cases, including specifically Benson, and is “untenable” because “[i]t would make the determination of patentable subject matter depend simply on

4

the draftsman’s art and would ill serve the principles underlying the prohibition against patents for ‘ideas’ or phenomena of nature.” Id.

In alignment with Benson and Flook, this Court’s decision in Diamond v. Diehr held that structures or processes must, when considered as a whole, perform functions intended to be covered by patent law in order to be eligible for patent protection. 450 U.S. at 192.

Diehr followed and upheld the core holdings of both Benson and Flook. Id. at 191–193 (“[o]ur reasoning in Flook is in no way inconsistent with our reasoning here”).

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

This substantive standard ensures that skilled patent draftsmanship is not capable of overcoming one of the core doctrines of patent law recognized by this Court for more than 150 years that “[a] principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.” Le Roy v. Tatham, 55 U.S. (14 How.) 156, 175 (1853); Funk Bros., 333 U.S. 127, 130 (1948); Benson, 409 U.S. at 67 (“[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts

5

are not patentable, as they are the basic tools of scientific and technological work”). Despite the arguments made by Petitioners and their amici to the contrary, this Court has clearly and unambiguously limited the scope of patentable subject matter to exclude software from its ambit in the most definite terms.

In Benson, this Court held invalid a software patent directed to a specific application of a generic formulation because “the mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.” 409 U.S. at 71–72.

The holding of Benson is properly applicable to all software, because a computer program, no matter what its function, is neither more nor less than the representation of one or more algorithms. Further, just as claiming fifty — or even a thousand — laws of nature is no more patentable than claiming a single law of nature, no form of software, regardless of how many algorithms or formulas it comprises, is patentable: It will always be merely and solely made up of algorithms for computers to execute, written down in a form comprehensible to human beings for them to study and expand upon.

This Court’s decision in Diehr is not to the contrary. It followed the teaching of Benson, and determined that the invention there claimed was not substantially the software, but rather the totality of an “industrial process for the molding of rubber products,” which is undeniably included within the realm of patentable subject matter. 450 U.S. at 191–93. Had the applicant sought to claim the software used in that process by

6

itself, however, this Court would have most assuredly found it to be unpatentable subject matter just as it had in Benson.

In Diehr, this Court observed:

When a claim recites a mathematical formula (or scientific principle or phenomenon of nature), an inquiry must be made into whether the claim is seeking patent protection for that formula in the abstract. A mathematical formula as such is not accorded the protection of patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.
450 U.S. at 191 (internal citation omitted). This result — which makes software describing a portion of the solution to a practical problem unpatentable on its own, outside the real-world context of the problem and its solution — is not only in accord with the rest of this Court’s patent jurisprudence, it is also the best way to protect innovation in software and the only way that fully comports with both Article I, Section 8 and the First Amendment.

II. Excluding Software From Patentable Subject Matter Maximizes Innovation In Software

If mathematics were patentable, there would be less mathematical innovation. Only those who were rich enough to pay royalties, or who benefited from subsidization by government, or who were willing to sign

7

over the value of their ideas to someone richer and more powerful than themselves, would be permitted access to the world of abstract mathematical ideas. Theorems build upon theorems, and so the contributions of those who could not pay rent — and all the further improvements based upon those contributions — would be lost.

For more than a quarter century, beginning with a few stalwart thinkers and exponentially increasing in size and influence, a movement to build computer software by sharing — treating software programming languages like mathematical notation, for the expression of abstract ideas to be studied, improved, and shared again — has revolutionized the production of software around the world. The “free software movement,” believes, like this Court, that computer software expresses abstract ideas, and therefore concludes that the ideas themselves will grow best if left most free to be learned and improved by all. It has attracted hundreds of thousands, soon millions of programmers around the world to the making of new and innovative software through the social process that for centuries has been the heart of Western science: “share and share alike.”

Free software, often referred to by commercial entities as “open source software,” to prevent confusion between the social freedom of its making and the price at which they sell copies, has become the single most influential body of software around the world. Free software operating systems now power everything from cellphones to home appliances to supercomputer clusters. There is no major or minor computer hardware architecture, no class of consumer electronics, no form of network hardware connecting humanity’s telephone calls, video streams, or anything else transpiring in

8

the network of networks we call “the Internet” that doesn’t include free software. The most important innovations in human society during the last decade, the World Wide Web and the Wikipedia, were based on and are now dominated by free software and the idea of free knowledge sharing it represents.2

This explosion of technical innovation has occurred for two primary reasons. First, the principle rule of free software, the required sharing of computer program source code, has allowed young people around the world to learn and apply their skills by studying and improving real software doing real jobs in their own and others’ daily lives. This process has enabled the incremental improvement of the art by everyone, rather than by the necessarily small number of programmers working for any one firm with proprietary control of source code. Second, by creating a “protected commons” for the free exchange of ideas embodied in program source code, the free software copyright licensing structure has enabled cooperative interactions among competing firms: each firm has been assured of permanent continuing access to the improvements in program code made by all other firms, which were required to make the source code of those im-

9

provements freely available to all users. Thus firms were able to increase their levels of investment in cooperative production, and were able to exchange ideas with academic researchers, secure in the knowledge that those investments would not be appropriated by others claiming exclusive rights.

The principle that innovation is made possible by the free exchange of ideas is not recent, and is not limited to software. Indeed, our constitutional system of free expression since Thomas Jefferson is based on the recognition that control of ideas by power has never produced more ideas than their free and unrestricted circulation. The history of western science since the 17th century is one long testament to this truth, and it is that very history which gave rise to the patent system, whose exclusion of “abstract ideas,” “facts of nature,” and “algorithms” is as much as recognition of the principle as is the basic constitutional policy of offering temporary legal benefits in return for prompt and complete disclosure of technological discoveries to the public.

This Court has recognized the growth and innovation in the software industry in the absence of patent protection. In Benson, this Court noted that “the creation of programs has undergone substantial and satisfactory growth in the absence of patent protection and that copyright protection for programs is presently available.” 409 U.S. at 72 (quoting “To Promote the Progress of . . . Useful Arts,” Report of the President’s Commission on the Patent System (1966)). A few years later, in Diehr, the Court observed that “[n]otwithstanding fervent argument that patent protection is essential for the growth of the software industry, commentators have noted that ‘this industry is growing by leaps and bounds without it.’ ” 450

10

U.S. at 217 (internal citations omitted). Recent empirical data also suggests that software patents actually stifle innovation instead of promoting it. See J. Bessen and M. Meurer, Do Patents Perform Like Property?, Academy of Management Perspectives, pp. 8–20 (Aug. 2008) (“The direct comparison of estimated net incentives suggests that for public firms in most industries today, patents may actually discourage investment in innovation.”)

III. The First Amendment Prohibits Construing
The Patent Act To Permit The Patenting
Of Abstract Ideas

This Court held in Eldred v. Ashcroft, 537 U.S. 186 (2003), that the First Amendment precludes the extension of statutory monopolies to abstract ideas. Eldred, 537 U.S. at 219. As you there said, the near-simultaneous adoption of the Patent and Copyright Clause and the First Amendment indicates that these laws are fundamentally compatible. This compatibility, however, depends on a construction of the patent and copyright laws that preserves First Amendment principles, including the freedom to communicate any “idea, theory, and fact.” Id.

Eldred identified two mechanisms in copyright law that are necessary to accommodate this principle. First, the idea/expression dichotomy limits copyright’s monopoly to an author’s expression, leaving ideas “instantly available for public exploitation.” Id. Second, the fair use doctrine allows the public to use even copyrighted expression for some purposes, “such as criticism, comment, news reporting, teaching..., scholarship, or research.” Id. at 220.

11

Patent statutes, which depend on the same constitutional grant of authority as copyright statutes are similarly limited by the First Amendment. See Eldred, 537 U.S. at 201 (“Because the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.”). The presence of an unwavering exemption for abstract ideas reconciles patent law with the First Amendment in a fashion similar to the idea/expression dichotomy’s crucial role in reconciling copyright and freedom of speech. The presence of a limiting principle is even more necessary with respect to patent law than with respect to copyright, because, as you observed in Eldred, “the grant of a patent... prevent[s] full use by others of the inventor’s knowledge.” 537 U.S. at 217 (emphasis added) (internal citation omitted). Patents can and do limit the application of knowledge to produce a new machine or to transform an article into a different state or thing, but they cannot constitutionally limit the communication of knowledge or ideas. Eldred teaches that, without this limitation, determining the scope of patent eligibility in each individual case would raise First Amendment questions of great difficulty. Patent law also recognizes no analogue to fair use, previously described by this Court as the second bulkwark of constitutional harmony between copyright and free expression. 537 U.S. at 219-220. The absence of any provision for fair use substantially increases the constitutional difficulty when patents are sought and granted for expressions of abstract ideas.

Therefore, patents on software standing alone, which could be infringed by the dissemination of computer program source code as well as by the execution of such code by a special-purpose tool or in the course

12

of an industrial process with a material result, disturb the “definitional balance” between the First Amendment and the Patent Act. Eldred, 537 U.S. at 219. In its unprocessed source code form, software is merely the expression of abstract ideas in human language — a description of a sequence of steps that will produce a particular result (i.e. an “algorithm”). The source code of a program which performs the steps described in a software patent is distinguishable from the literal patent only in that it expresses the same steps in a different language. Therefore, since anyone may copy or publish the actual patent without infringing, it must also be permissible to communicate its claims in source code form.

The sharing of source code is also essential to “scholarship and comment,” two categories of speech recognized in Eldred and Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 560 (1985), as particular First Amendment concerns. Computer science textbooks, for example, rely heavily on source code and pseudo-code to communicate concepts and describe useful algorithms. See, e.g., Brian W. Kernighan and Dennis M. Ritchie, The C Programming Language (Prentice Hall 1978). Likewise, computer science students are often required to express their answers to test questions in a real or hypothetical programming language. And without the use of source code, it is difficult for developers to comment on whether an idea can be implemented, to comment on an algorithm’s performance, or to suggest improvements.

Moreover, First Amendment concerns cannot be avoided by exempting source code and limiting patent protection to software which has been converted to executable form, or which has actually been executed. Recent rulings, such as the Federal Circuit’s decision

13

in Metabolite Labs, Inc. v. Laborator Corp. of Am. Holdings, 370 F.3d 1354 (Fed. Cir. 2004), cert. dismissed, 548 U.S. 124 (2006), demonstrate that secondary liability would still restrict the communication of ideas expressed in source code. In Metabolite, a medical testing laboratory was successfully sued for inducement to patent infringement for telling doctors what steps to take to correlate the presence of amino acids in body fluids with a vitamin deficiency. 370 F.3d at 1358. Once communicating the content of a patent to doctors is held inducement to patent infringement, constitutionally-protected communication among programmers will inevitably be chilled.

This result would be a restriction on the expression of abstract ideas. The court below correctly interpreted the Act to avoid this dubious outcome, by requiring more than an abstract expression of an idea: either a machine specially adapted to the implementation of that idea, or a transformation of the physical environment mediated or controlled by software. Any other construction of the statute would raise serious constitutional questions.

14

Conclusion

For the foregoing reasons, the decision below should be affirmed.

Respectfully submitted.

Eben Moglen
Michael A. Spiegel
Mishi Choudhary
Aaron Williamson
Software Freedom Law Center
[address, phone]

October 1, 2009


1 Pursuant to Sup. Ct. R. 37.6, amicus notes that no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae and its counsel made a monetary contribution to its preparation or submission. Petitioners and Respondents have consented to the filing of this brief through blanket consent letters filed with the Clerk’s Office.

2 The brief submitted by Lee A. Hollar and IEEE is therefore entirely wrong in claiming that the free software movement’s hostility to software patenting results from a similarity between “underdeveloped economies” and free software programmers. Brief of Lee A. Hollar and IEEE-USA at 21 n.31. Far from being involved in “cloning” the software of others, free software or “open source” programmers have been responsible for the most important technical innovations in the field over the last twenty years. The objection of the free software community to software patents stems not from their desire to misappropriate the work of others, but rather from the belief that the free exchange of information is a cornerstone of free societies.

  


SFLC files Bilski brief: Software should not be patentable and don't forget the 1st Amendment | 320 comments | Create New Account
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My sincere hearty thank you to the SFLC
Authored by: SpaceLifeForm on Saturday, October 03 2009 @ 12:34 AM EDT
I pray this amicus solves many problems.

---

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

[ Reply to This | # ]

If algorithms are not patentable...
Authored by: luca.b on Saturday, October 03 2009 @ 03:21 AM EDT
How did Fraunhofer get the MP3 patent? Does anyone know?
I'm genuinely interested

---
Violence is the last refuge of the incompetent. - Salvor Hardin

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Will this amicus brief be seen as irrelevant?
Authored by: Anonymous on Saturday, October 03 2009 @ 03:39 AM EDT
It does not even try to tie the matter back to the case at hand, nor does it
explain how business methods and software are comparable in terms of patents.

IANAL, so maybe there's some legal thing I don't understand here, but it seems
to me that either the justices themselves or their clerks will put this one in
the circular inbox, figuratively if not literally.

[ Reply to This | # ]

1st ammendment. An Ace or a Millstone?
Authored by: complex_number on Saturday, October 03 2009 @ 03:39 AM EDT
Firstly, IANAL & I'm not a US Citizen but I worked for a US Company for over
20years.

As an outside observer I see the issue of the 1st Ammendment in this case as
either an ACE that will trump everything else OR somewhere at the back of my
mind, I get the feeling that this is a big risk and something of a last grasp
move.

Using the US Constitution is probably a bold move and one aimed to stop this
patent march in its tracks but I just wonder how the Judges will take this. Is
this a sideswipe at their authourity? Is this a move that could backfire and end
up making the situation far worse.

I don't know but as with everything in the SCO Universe and Software Patents,
there seems to be twists and turns that continue to surprise us in these twin
never ending sagas.

I hope the the briefs submitted by the SFLC & RedHat contribute in a
positive way to make Software patents dead & buried forever.


---

Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42"

[ Reply to This | # ]

an "ad absurdum" (sp?)
Authored by: Anonymous on Saturday, October 03 2009 @ 04:22 AM EDT
Here is a little reductio ad absurdum (a contradiction that should disprove a
proposition).

Step one:

Legalize patents on business processes (and computer programs and other
expressions of algorithms).

Step two:

Patent a special process of making business decisions by reference to the
Constitution of the US. (Note that this step does not
require attempting to patent the Constitution or any algorithm claimed to be
expressed within the Constitution. A patent
claim against any special process, expressed externally, which merely refers to
the Constitution should be sufficient.)

Step three:

Bring threats of suit against anyone who communicates the Constitution.

QED

This is so absurd that any pro-IP lawyer worth his/her salt will immediately
jump in and claim that any court, and even the
patent office should be able to see that it would not be allowed by any law
"X" or court ruling "Y" which might claim or be
construed to allow patenting algorithms, so I offer the following, as well:

We have recently seen attempts to produce and sell voting technology.

A patent (properly or improperly) issued against a method or program which
claimed to protect the anonymous nature of the
vote while preserving the accuracy of the count would effective prevent anyone
without a large enough fortune and a strong
enough will from the means necessary to determine whether the system actually
met its claims.

(We are dangerously close to that status with only the protection of copyrights
and trade secrets. But that's something of a
separate subject.)

The entire function of the US Constitution, in establishing forms and procedures
which allow branches of the government,
including the fourth branch, the people themselves, to check each other, the
entire structure of checks and balances, lies in
its focus on methods and procedures.

And I've lost my train of thought here.

Anyway, I agree with others here. A hearty thanks to the SFLC for this brief.

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A form of software patent that might be allowed.
Authored by: reiisi on Saturday, October 03 2009 @ 05:43 AM EDT
(I've said this before, and I'm only echoing others, anyway.)

There have been a number of attempts to approach the patentability of software
that would
avoid the effective patenting of ideas and algorithms.

One is tying the program to a specific machine, so that the patent is on the
combination of
machine and software, not on the software alone. Such an approach might be
legal, but won't
really gain the control that generally seems to be sought unless such broad
construction is
allowed that any commercially available computer would fall under the claims, in
which case
we're back to square one.

So, allowing patents tying the patent to a machine would require the machine to
be very
narrowly specified, and it's hard to see many cases where the specific machine
being tied to
would actually constitute something unique, original, or new enough to be
patentable. (I think
there may be a few in, for instance, real-time signal processing, but I expect
patens on such
combinations are already being allowed, because parts of the algorithms are
expressed in
analog circuits, combinations of digital gates, etc.

This is where we get pointed in the right direction -- if someone wants to
patent software, it
must be software expressed in concrete form, analog or digital circuitry.

Field programable logic arrays are an example of where such expression
approaches software.
The source code for logic arrays is, in fact, source code.

If we follow this idea, it would seem reasonable to allow patenting an instance
of an abstract
device expressed as programable logic arrays or even ROM plus a specific CPU in
a specific
circuit configuration.

Pressing the idea a bit further, if we want to patent a normal program, we
should be required to
patent a specific source code in a specific language, with a specific run-time
environment.

But, of course, we see problems.

How does law provide a way of restricting the run-time environment (OS and
libraries in the
most commonly considered cases) so that the patent would be meaningful and not
overly
broad?

We might consider mechanical transformations of the source code, including to
other
languages, except how does law deal with an AI transformation, or even a
non-artificially
intelligent transformation, say, from C to Haskell, where the translation
actually involves
modifying the underlying algorithm?

This is cutting edge computer science. Thus is a bit beyond the edge, actually.
We would
require the law to prescribe computer science that we are struggling to define,
much less
implement, in order to properly say, "This much transformation is covered
and no more."

Without some sort of limits on transformation, we, as computer scientists, can't
see any way to
prevent any arbitrary software patent on any other arbitrary software patent.

That's one of the core technical issues with software patents that needs to be
taken up, I
suppose. When you dig very far into abstract math, there are huge families of
models in which
one model can be mathematically (therefore, mechanically) transformed into
another model.
Without some way to limit that interpretation of the patent, one patent in that
family would
cover every possible invention in that family, no matter how separate the
physical
implementation seems. A patent for a computer machine to trade in certain stocks
and
securities could read on a machine to incubate plankton.

So, without fairly strict limits on the claims, we would find ourselves in a
real Alice-in-
Wonderland world. Let's back well away from that world.

So, what restrictions are possible? A C program could be patented, but that
patent would not
apply to a FORTH version of essentially the same program? Pascal or Ada? How
about a C++
version?

How about a patent on an ANSI C source written to the 1999 standard? Would it
apply to a re-
write for a pre-ANSI compiler?

How about bug fixes? Do we arbitrarily set a count of bug fixes beyond which the
patent no
longer applies?

Sure, the lawyers working in this field say they think they can answer these
problems. I'm not
inclined to give much credence to such claims unless the lawyer can demonstrate
the ability to
work correctly in the fields of abstract mathematics I've referred to above.

I suppose this kind of extreme expression will undermine my own credibility, but
I think, if we
start asking our lawyers to judge software patents correctly, we are basically
going to be asking
them to play god.

Backing away from the absurdities again, it seems very clear that patents are
not appropriate
for software.

Copyrights are what are appropriate for software.

(And, if we consider the ability of our human brains to emulate CPUs, it only
makes sense that
copyrights are what are appropriate.)

[ Reply to This | # ]

Rebuttal of Hollar's slur is understated
Authored by: Anonymous on Saturday, October 03 2009 @ 06:22 AM EDT

free software or “open source” programmers have been responsible for the most important technical innovations in the field over the last twenty years.

Strike "over the last twenty years". Free and open-source software have been responsible for the most important technical innovations in the field ever since software has existed. The internet, TCP/IP, email, ... the further you go back, the harder it is to find any important innovations that were proprietary.

It's surprising that a supposedly educated man like Hollar could write such drivel, and it's absolutely astonishing that an organization like IEEE, which has itself contributed to some open software standards, should allow such nonsense to be published in its name. There must be some powerful financial interests at play here.

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First Amendment?
Authored by: dio gratia on Saturday, October 03 2009 @ 06:35 AM EDT

I must confess to being aware of the issue of Idea-Expression merger in a patent previously:

Answering Gene Quinn, Patent Attorney..
Authored by: dio gratia on Saturday, November 15 2008 @ 02:36 AM EST

Software in and of itself is protected by copyright as an expression of an idea. Thomas Jefferson referred to the subjects of patents as being "ideas" themselves. The two abstractions, idea and expression tend to be treated separately. Can they merge with software patents?

Dr. David Touretzky of Carnegie Mellon University, his students and associates have demonstrated the ability to generate executable software from just about any expression of the DeCSS encryption code method used for protecting DVD Movie content. One could conjecture that no matter how obtuse a description of a software 'invention' were present in a patent, as long as the patent document was static, a mechanism could be created to convert the description into executable software, or to execute it directly. This is the equivalent of writing expert software to parse the detailed description of the preferred embodiment and exercise the invention described therein. You can think of the detailed description as a particularly arcane markup language and the expert software capable of traversing it as it's interpreter. The interpreter depends on the patent description for instruction (i.e. the software). The interpreter is not of itself capable of performing the patented invention without the software and is not protected by the patent anymore than a CPU executing microcode to operate a programs instruction would be.

Likewise a person is capable of traversing a process described in the detailed description and perhaps with one or more aides de memoire capable of performing the process in the same abstract as would a computer, albeit somewhat slower. By allowing just the process embodied in the patent to be patented you would be in effect trying to limit the ability for someone to, by cognitive action, execute (use) the invention. Jefferson recognized the absurdity of trying to limit ideas once known. Can it be illegal or subject to patent rights to execute a process by cognitive action? Can you not think about something or only think about it if licensed?

While Dr. Touretzky and his associates did the Gallery of CSS Descramblers to show the futility of trying to separate idea and expression, the courts have a working mechanism to separate idea and expression in patents by limiting the invention protected by patent to being physically embodied. Perhaps it would be unwise to tinker with this particular legal mechanism. The underlying problem appears to be anything that a computer can do by executing software can be done by a person, and the contents and actions of one's mind are not subject to natural or privileged property rights held by others. Trying to limit the expansion of patents to include software in a manner that would preclude the interpreter would depend on a definition of computer and/or software that would likely have difficulty surviving further technological advances. Precluding cognitive process isn't in the realm of possible and likely to remain so during the lifetime of the present legal framework.

Patent documents are not protected from dissemination, the disclosure of the "idea" as Jefferson put it being the price of exclusive rights, where as a trade off for exclusive rights the patent holder puts the idea irrevocably into society's keen, what Lawerence Lessig refers to as the Creative Commons. Anyone can lookup and read a patent. Almost all currently held patents are available on line, from Google if nowhere else. A software patent without an accompanying narrow definition of software and/or computer leaves manufacture (duplication, copying) of the patented article out of the patent holders hand, a loss of an exclusive patent right.

I am absolutely dumbfounded that someone would look for first amendment implications in case law, but then, I'm not a legal practitioner. It's a big gun to wield. Regardless of any ideological conflict perceived or actual at some point the value of 'intellectual property' in software dominated industries is bound to lessen, software development hast to become a commodity when everything has software:
Hierarchies of domain-specific languages
Authored by: dio gratia on Tuesday, November 04 2008 @ 08:02 PM EST

The use of DSL's allow abstraction of otherwise complex sequences of actions. Normally we expect abstraction for the user role, but historically not for the implementer and architect roles. We have a 60 year history of organically growing programs despite the best efforts of modeling tool providers. The idea is as Charles Simonyi says to produce Intentional Software™, where someone operating as an architect defines the domain of the programming task. The implementer operates in this domain specific language to produce a program (software system) through the use of domain specific abstractions. DSLs hold the promise of simplifying programming allowing closure between user and implementer roles, which alleviates the growing shortage of programmer talent world wide. Check out Microsoft's Oslo , which uses DSLs.

Take an example of a program that muddies the user and implementation roles in a fashion similar to software generation tools and uses domain specific language - LightBot . You can program a robot represented by a sprite to traverse 3D game boards for the purpose of toggling the color of targeted locations. You program the robot to move and toggle squares using finite program memory space including two subroutine spaces. The instructions you can use include forward, turn left, turn right, hop (to go forward and move vertically), toggle (shown by a short illumination), You program the robot by dragging and dropping icons representing instructions into either a finite program array, or two identical and finite subroutine program arrays. Anyone can do it.

The use of DSLs and tools to allow anyone to program in particular task domains has the potential of to affect the ability to copyright software. Abstraction narrows the distance between idea and expression reducing scope of copyright protection. In LightBot there are multiple ways of assembling instructions to generating programs capable of solving each target tasks although the number of different possible instruction combinations to do so is limited. Sequences of instructions can be shown to not be proper subject matter for copyright. For example there are only two ways to move the LightBot robot backward that preserve program space - a necessary requirement for task completion. Either right turn, right turn, forward or left turn, left turn, forward. Imagine modeling tools might use standard libraries and system calls incorporated in domain specific language. It could reduce subject matter eligible for copyright if someone were to release as open source domain specific language standard libraries that proved to be both useful and widely adopted. Note the corollary opportunity for tool vendor lock-in.

The value in programming might become contributory to something larger and not an end to itself, the amount of work to implement program functionality is lessened. The value added in producing software would come more from the architects role - having the knowledge and skill to define the domain, a reduction in production costs.

IANAL. These are opinions.

The basic problem is that software authorship has changed little in 60 years, software companies remeniscent of sects and monasteries, where programmers emulate monks copying books by hand, authoring software as one would a narrative. The demand for software grows so fast as computers spread throughout common everyday use such that open source software is attractive as a labor cost and time to market saving in developing products with fairly short market life times. Automation in generating software might become so prevalent as to push software development toward more and more idea-expression merger affecting both of today's prevalent ideologies equally. Instead of dominating our technological development software may be destined to be seen as a commodity. There may well be plenty of room for creativity in architectural definition of products instead of implementing them, but perhaps software won't be seen as having value as a scarcity item.

You could also note that the development of tools to lessen the value of all software isn't something you'd expect a company based on scarcity economics to seriously pursue without enclosing (embracing) the results. Perhaps software can't reach it's full potential for enabling our technological future without open source?

All this raises the question. Is 'intellectual property' protection inhibiting innovation?

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This is terrible and changes everything!
Authored by: Ian Al on Saturday, October 03 2009 @ 07:26 AM EDT
Quite apart from appearing to call the court a bunch of 130 year-old, Alzheimic gits, the SFLC has added a layer of complexity on top of all my complex arguments. And, it itches like hell and must be scratched.

Anyway, lets make a start with a castigation of PJ for selective reporting. She says,

1) software is just algorithms for computers in human readable terms, and algorithms are not patentable.
What they said was
Software standing alone cannot be patentable subject matter.
PJ has implied a conclusion that they did not come to, vis. software is algorithms, algorithms are not patentable, ergo software is not patentable. I point that out because countless Groklawian contributors have asserted the same thing and they might miss that it is not the SFLC's position. That's not the terrible thing, though.

The terrible thing they point out is that Microsoft were let off for distribution of software 'standing alone' on a CD because it was just algorithms waiting to be installed in a computer to construct the patented machine. Well, that's not the terrible thing. They go on to point out,

Moreover, First Amendment concerns cannot be avoided by exempting source code and limiting patent protection to software which has been converted to executable form, or which has actually been executed. Recent rulings, such as the Federal Circuit’s decision in Metabolite Labs, Inc. v. Laborator Corp, demonstrate that secondary liability would still restrict the communication of ideas expressed in source code. In Metabolite, a medical testing laboratory was successfully sued for inducement to patent infringement for telling doctors what steps to take to correlate the presence of amino acids in body fluids with a vitamin deficiency. Once communicating the content of a patent to doctors is held inducement to patent infringement, constitutionally-protected communication among programmers will inevitably be chilled.
What I said in the RedHat-brief article was
I suspect they won't declare software unpatentable because the argument is based on the Constitutional requirement of fostering innovation and they will be unhappy to declare all software patents for all time as not fostering innovation. They may well feel that, when technology advances, future software might deserve that protection even if today's software does not. They might not feel qualified to look into the future like that.
However, the SFLC has shown real harm to First Amendment rights from a district decision that would endure for as long as there were software patents.

I have to change my prediction. Now, I think the Supremes will address the harm, already done by the courts, of finding patent violation in the exchange of ideas. I think they will reaffirm that ideas are not patentable subject matter. They will say that a patent in a machine can only be violated by making, selling or using a violating machine. In the same way, a patent in the transformation of one material to another material can only be violated by enacting the exact same patented transformation, and no other.

Oops, a loophole. The above would allow a software manufacturer to sell or distribute software that, when installed in a computer, became an infringement of the patent. They, either have to make Microsoft (v AT&T) guilty of inducement to patent infringement in that case, or they have to leave only the installers and users of software liable for actual infringement. If the software developers can't tell if they are, or are not, violating patents how can granny? How does granny's infringement damage the patent-holder? Would it not be unconscionable for the law to penalise granny in these circumstances when granny's actions do not militate against innovation, cannot be wilful and granny is not skilled in the arts concerned? Is that in the public interest?

Let's not fanny around: software is not patentable subject matter!

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

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Patents restrict performance, not discussion
Authored by: Anonymous on Saturday, October 03 2009 @ 09:49 AM EDT
Unfortunately, I don't think the first amendment argument applies. A patent is a
published document that is by design public and intended to encourage discussion
of the art. A patent does not restrict discussion, only performance.

"Once communicating the content of a patent to doctors is held inducement
to patent infringement, constitutionally-protected communication among
programmers will inevitably be chilled."

This is absolute nonsense. I'm not saying it hasn't or won't happen, but it is
the antithesis of what a patent should do. The public in general and
professionals who practice the art must be free to discuss patents, both so that
they may "further science and the useful arts" and so that they may
understand the restrictions the patent imposes upon them. Such restrictions are
or would be in violation of both the first amendment and the patent clause
itself.

It may be inappropriate to encourage doctors to practice a patented process to
diagnose a problem, however, it cannot be prohibited that they be informed of
the patent or its underlying principles.

Saying "you can diagnose X by doing Y" may be inappropriate if you
know and do not say the process is patented. However, saying "Q has a
patent for diagnosing X by doing Y" must not be. Nor may it be prohibited
to say "I think it is terrible that Q has a patent for diagnosing X by
doing Y and I don't think the patent should have been issued because its an
obvious application of facts and however much effort was involved in collecting
the facts they are just facts and as they are not trade secrets...."
Nevertheless, if its a valid patent it may be prohibited for anyone else to
diagnose X by doing Y.

Software patents are unique in that a program in human readable form can both
describe the patent subject matter and can be compiled and executed to perform
the patent. Distribution of the source code for purposes of understanding the
patent cannot be prohibited. This is certainly a first amendment right as well
as an intended result of the patent's publication. However, running that
software on a computer to actually perform the function of the patent is going
beyond speech to doing. This is the same difference as between committing a
murder and writing, reading, or discussing murder mystery novels.

Even running the program should be allowed if it is for purposes of studying the
process rather than to use the patented process.

The argument that a program is an expression of one or more (unpatentable)
algorithms has greater merit and will I hope prevail.

IANAL

[ Reply to This | # ]

SFLC files Bilski brief: Software should not be patentable and don't forget the 1st Amendment
Authored by: Anonymous on Saturday, October 03 2009 @ 11:32 AM EDT
I think is is good that someone is finally bringing up
First Ammendment issues with software patents to the
Supreme Court.

IIRC, it was the Supreme Court that ruled that political
contributions were an excersize in free speech and could
not be banned.

IIRC, it was the Supreme Court that ruled that it was OK
to burn the US Flag as a means of protest because it was
an expression of free speach.

I think that if the Supreme Court sees how damaging
software patents are to First Ammendment rights, they have
no choice in declaring them as being unconstitutional.

Software is already protected by the Constitution with
copyright.

The only reason software patents are being fought for
is to preserve some outdated business models that have
outlived their usefulness.

Software developement was once an expensive proposition
and required a large financial investment on the part of
businesses that was not possible by the majority of
private citizens.

With the commoditization of the personal computer and
proliforation of free and open source software and its
developement tools, it became possible for anyone, with
minimal expense, to engage in software development whenever
and wherever they chose.

As such, the creation of software has become a form of
free expression by private citizens protected by the First
Ammendment of the Constitution the same as art or music.

Art is created to be seen. Music is created to be heard.
Software is created to run. Saying that software can be
written, but not run is analogous to saying that art can
be created, but not seen, that music can be composed, but
not heard, that songs can be written, but not sung.

And as stated before, software is already protected
under the Constitution by copyright.

[ Reply to This | # ]

So, If I claim a process, I'm not claiming software.
Authored by: Anonymous on Saturday, October 03 2009 @ 11:53 AM EDT
"Thus, software standing alone, without the presence of a special purpose
machine or the act of transforming a particular article into a different state
or thing is merely information, a representation of an algorithm or algorithms,
and not a “process” within the meaning of this Act...."

Fair enough. If I claim a process, by definition, I'm not claiming software.
Problem solved.

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Kudos to SFLC - This argument sounds powerful to me
Authored by: PolR on Saturday, October 03 2009 @ 12:19 PM EDT
What strikes me about this brief:

1- The argue about software in the abstract. They don't say much about the running of the code on an actual computer beyond approving of the trilogy Benson, Flook and Diehr.

They don't say it expressly, but this is tying nicely into Bilski. This is a case about patenting a process made of mental steps. The SFLC points out that software in the abstract is made of mental steps. The Supreme will have a hard time explaining why a ruling on Bilski doesn't extend to software in the abstract. The natural way to go is to put mental steps and software in the same bag. It looks like if one of the goals of the SFLC is to make sure the Supremes don't add footnotes that say their ruling doesn't apply to software. Just that will be a victory of great practical importance.

2- They argue software is maths based on the Supreme court precedents using the judges' own words.

Can you get more convincing than that? The Supremes can't back off without undoing their own precedents.

3- They raise the First Amendment.

Here I say wow. They remind the judges that abstract ideas are not patentable for constitutional reasons. I always wondered why they made that exclusion since it is not in the statutes. Now I know. Without it patent law would be contrary to the First Amendment. Whatever the Supremes say in Bilski will be constrained by First Amendment. This leaves very little room to patent the Bilski process. If Bilski doesn't get his patent, software will fall in the same bag. Raising Eldred is brilliant. This is case where to most of the current crowd of Supremes personally ruled on. They will be sensitive to the point and unlikely to back off. If they make an explicit mention of the constitutional issues in the ruling, this will be an outstanding victory. There will be a constitutional hill to climb to get patents on software.

As an aside, the First Amendment argument should take care of the expectations of some that Congress will amend the law to patent software. Even Congress will find it hard to overcome a constitutional ban on software patents.

IANAL but this sounds to me like outstanding lawyering. It seems like this brief is targeted at getting the court to reaffirm the trilogy Benson, Flook and Diehr. It is like they want the Supremes to say something along the line of the partially dissenting opinion of judges Archer and Nies in the Alappat case. If the SFLC succeeds, software patents are dead and some anti FOSS strategy in Redmond will go in the toilet.

[ Reply to This | # ]

The Constitution vs. the Corporate Court
Authored by: Anonymous on Saturday, October 03 2009 @ 12:53 PM EDT
Ok, I know that cynicism is supposed to be denigrated here, but I can't help but feel that politics is stepping in to trump both common sense and law. Right now, the SC is poised to allow corporations more rights, allowing them unfettered political contributions, overturning a 100 year-old ruling. While I can't find links at the moment, the legal bloggers I read were struck by the tortured logic that the conservative justices were employing, in order to reach this decision. (Remember, these are the self-avowed 'strict constructionists').

I'm sorry, but no matter how well constructed the argument, and how much it makes sense to experts in the field, I foresee a decision from the Court that will fail on its merits, but will make the corporate paymasters very happy. Look forward to a tortured explanation of how software patents balance the rights of corporations and people, ending with the finding that all men are created equal...but some are more equal than others. Corporations are just like you and me, except richer. I Expect the trend to continue.

[ Reply to This | # ]

SFLC files Bilski brief: Software should not be patentable and don't forget the 1st Amendment
Authored by: iraskygazer on Saturday, October 03 2009 @ 03:11 PM EDT
Eben Moglen is absolutely correct in all of his statements. But so many
decisions, made at the SC level, have supported corporate entities over older
laws that it is unlikely the SC will change from the direction in which it has
been moving. That said, I personally hope that the SC doesn't come up with an
excuse to hold the status quo and support the greed of large corporate entities
but would rather make a decision based on the common sense which Eben has
expressed in his brief.

[ Reply to This | # ]

Slightly OT: A very accessible write-up by Arstechnica on the present state of patent case law
Authored by: clemenstimpler on Saturday, October 03 2009 @ 08:52 PM EDT
I have just stumbled over a very concise write-up [arstechnica.com] of the legal situation the Supreme Court is facing right now. If you want to know what Benson, Diehr and Flook, not to forget Allapat are all about, this is the place to go.

[ Reply to This | # ]

Abstraction & Machines
Authored by: tce on Sunday, October 04 2009 @ 02:16 AM EDT
So, in the good old days, the IDEA was rendered in, say, steel, and the steel
could do ONE THING, and the STEEL MACHINE that could do ONE THING was
patentable.

As time passed, the machines got more complex (and full of patents) and more
general purpose.

Finally, The GENERAL PURPOSE MACHINE could be told the IDEA and it would do what
it was told - take DATA, and an IDEA, and answer back more DATA.

And, so, over time the patent-ability of the RENDERING of a specific IDEA, where
the utility of the IDEA is due to its rendering by GENERAL PURPOSE MACHINEs (vs
say, steel) has been reduced to Nill because IDEAs cannot be patented, only
MACHINES.

Software, that is,.... an expression of one or a bunch of algorithms in some
informal or formal algorithmic language, such as math, or APL, or Smalltalk, or
that portable assembly code, C.... is two things:

1 A Requirement - which is knowledge
2 A transformation of the requirement into a some set of algorithms to meeting
the requirements, which is more knowledge.

Both of which are IDEAS.

Make something out of steel and get a patent.

Express an IDEA, so that a person could think about the data and the IDEA and
answer more data, or a GENERAL PURPOSE MACHINE could simulate a person thinking
about the IDEA, and don't get a patent.

Duh.

[ Reply to This | # ]

A contrary view - at the risk of putting my head in the lion's den
Authored by: Anonymous on Sunday, October 04 2009 @ 06:38 AM EDT
Having carefully read the article and many of the responses on the blog, I
realize "software cannot be patented" is dominant here. A contrary
opinion here - is a bit of a risky proposition. Nevertheless, here is my free
expression...

As a hard working software developer (by no means a corporate giant), I have 6
patents and patents-pending to my name. I feel they precisely serve the purpose
for which patents were invented - giving me a better chance to stand up to the
corporate giants and protect my work; improving my chances of making some profit
to justify all those years of effort.

The FOSS movement is coupled to both an ideology and a business model - making
money out of maintaining and servicing the software rather than the software
itself.

But that is not the only business model. And trying to deny other business
models really DOES do harm to freedom and liberty, in the most basic sense.

This "amicus brief" tries to impose the FOSS ideology on the rest of
us. That really does harm to my freedom. I want to be able to choose whether to
go FOSS or not, based on my own conscience as well as my own business
interests.

I'm not against FOSS, having taken that approach myself in several cases. (!!) I
am just saying I want to choose it freely when appropriate, rather than have it
thrust down my throat.

[ Reply to This | # ]

Block expression? -nonesense
Authored by: Anonymous on Sunday, October 04 2009 @ 09:51 AM EDT
"Amen. Where does the US Constitution come into this? Because patents block
all use, with no fair use exception as with copyrights, so if you allow patents
on abstract ideas, then patents block the expression:"

You are free to copy and discuss patents all you want. You just can't make,
use, sell or import the claimed invention.

[ Reply to This | # ]

Player Piano gets patents, Piano Rolls get Copyright - Yes?
Authored by: tce on Sunday, October 04 2009 @ 06:37 PM EDT
2nd try at the Genera Machine is a machine, the instructions for the machine are
NOT a machine.


Consider sheet music:
- A result of hours, weeks, or months of hard work, based on some
"requirements", some "skill in the art" and some
"invention"
- Copyright Yes
- Patent? No

Consider sheet music translated into some other notation for human reading
- Copyright Yes
- Patent? No

Consider the Piano, and it mechanism for coupling the vertical travel of a key
to the appropriate travel of the hammer, which might strike a string, if the
string is installed.

Now...

The Player Piano has added mechanisms (patented, I am sure) that include the
mechanical ability to automatically read a Piano Roll, and based on the contents
of the roll operate its mechanical parts to produce a pattern of hammer strikes
that can make sounds if the strings are installed.

The player piano patents do not reference a single specific piano roll.

And now..

The Piano Roll
- A translation of sheet music
- With some added precision timing information
- Constrained to what a player piano can do
- A translation of some sheet music into a machine and potentially human
readable form.

- Copyright? I assume so.
- Patented? Each individual Piano Roll? I Don't think so.


How is some clever bit of software(music) played on a computer (player piano),
for some output, eg. data in punch cards, ink on paper, etc, (movement of
hammers) a machine?


Both software and music are ideas.
Ideas that can be rendered manually (human thinking, humming etc) or translated
to a machine-understandable form, and then fed to a general purpose machine,
such as a computer or a player piano.

Packaging the software and the machine together in a little box does not change
their fundamental separation and distinct nature.


Music composers get copyright, not patents.
Software composers get copyright, and due to some confusion, patents.

The decisions to attempt to patent software(music) is greed based, not logic
based.

The decision to stop patenting ideas, e.g. business processes and algorithms /
software is to ignore the greed, follow the law, and do the right thing for
furthering the arts.

-tce


[ Reply to This | # ]

Arguments that SFLC could have done better
Authored by: leopardi on Sunday, October 04 2009 @ 08:28 PM EDT

The S FLC brief argues that (1) the Supreme Court has essentially held that mathematical algorithms cannot be patented, and that (2) if mathematics were to be patented, this would be bad for innovation:

... This Court has repeatedly held that subject matter which would have the practical effect of preempting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection.

...

II. Excluding Software From Patentable Subject Matter Maximizes Innovation In Software

If mathematics were patentable, there would be less mathematical innovation. Only those who were rich enough to pay royalties, or who benefited from subsidization by government, or who were willing to sign over the value of their ideas to someone richer and more powerful than themselves, would be permitted access to the world of abstract mathematical ideas. Theorems build upon theorems, and so the contributions of those who could not pay rent— and all the further improvements based upon those contributions—would be lost. ...

The second point of the SFLC could have been made stronger by reference to (e.g.) the 1991 Report of the Committee on Algorithms and the Law of the Mathematical Programming Society.

It seems clear from the previous discussion that the nature of work on algorithms is quite different from that in other fields where the principles of patents apply more readily. This in itself is a strong argument against patenting algorithms. In addition, we believe that the patenting of algorithms would have an extremely damaging effect on our research and on our teaching, particularly at the graduate level, far outweighing any imaginable commercial benefit. Here is a partial list of reasons for this view:

  • Patents provide a protection which is not warranted given the nature of our work.
  • Patents are filed secretly and would likely slow down the flow of information and the development of results in the field.
  • Patents necessarily impose a long-term monopoly over inventions. This would likely restrict rather than enhance the availability of algorithms and software for optimization.
  • Patents introduce tremendous uncertainty and add a large cost and risk factor to our work. This is unwarranted since our work does not generate large amounts of capital.
  • Patents would not provide any additional source of public information about algorithms.
  • Patents would largely be concentrated within large institutions as universities and industrial labs would likely become the owners of patents on algorithms produced by their researchers.
  • Once granted, even a patent with obviously invalid claims would be difficult to overturn by persons in our profession due to high legal costs.
  • If patents on algorithms were to become commonplace, it is likely that nearly all algorithms, new or old, would be patented to provide a defense against future lawsuits and as a potential revenue stream for future royalties. Such a situation would have a very negative effect on our profession.

The first point of the SFLC brief could have been stronger as well. It may not be entirely clear that the Supreme Court has ruled that mathematical algorithms as such are unpatentable. The FSF brief argues that algorithms with insuffient "post-solution processing" are unpatentable:

A. THIS COURT HAS RULED THAT INFORMATION PROCESSING ALGORITHMS WITH “INSIGNIFICANT POST-SOLUTION ACTIVITY” ARE BARRED FROM PATENT-ELIGIBILITY.

There is little controversy that information processing algorithms in their pure, ethereal forms, with no physical component or manifestation of any sort, are excluded from patentability. [ Novel mathematics, for example, is outside the scope of patent-eligibility. “Whether the [mathematical] algorithm was in fact known or unknown at the time of the claimed invention … it is treated as though it were a familiar part of the prior art.” Parker v Flook, 437 U.S. 584, 591-92 (1978) (internal citation omitted). ] However, what is under debate is how much of a physical manifestation an information processing algorithm must have before it is patentable.

In a trio of opinions issued over the span of nine years, this Court clearly rejected the patentability of an information processing algorithm with “insignificant post-solution activity” appended. First, in Gottschalk v. Benson, 409 U.S. 63 (1972), the Court quoted approvingly the 1966 President’s Commission on the Patent System: ...

Second, in Parker v. Flook, 437 U.S. 584 (1978), this Court made a more general statement, reiterating the position that loading an algorithm onto a standard computer is merely an attempt to circumvent recognized limitations: ...

Third, in Diamond v. Diehr, 450 U.S. 175 (1981), the Court directly reiterated its two previous holdings, while also acknowledging that bona fide, patent-eligible inventions may include a software component: ...

To me, the crux of the matter seems to lie in the part of judgement of the Federal Circuit in re Applat 33 F.3d at 1543 n.19, 31 USPQ2d at 1556 n.19, 1994 which essentially states that the Supreme Court has been confused, inconsistent or at best unclear in its understanding of mathematics and how it relates to patentable subject matter:

19 The Supreme Court has not been clear, however, as to whether such subject matter is excluded from the scope of Section 101 because it represents laws of nature, natural phenomena, or abstract ideas. See Diehr, 450 U.S. at 186 (viewed mathematical algorithm as a law of nature); Benson, 409 U.S. at 71-72 (treated mathematical algorithm as an 'idea'). The Supreme Court also has not been clear as to exactly what kind of mathematical subject matter may not be patented. The Supreme Court has used, among others, the terms 'mathematical algorithm, 'mathematical formula,' and 'mathematical equation' to describe types of mathematical subject matter not entitled to patent protection standing alone. The Supreme Court has not set forth, however, any consistent or clear explanation of what it intended by such terms or how these terms are related, if at all.

20 The Supreme Court's use of such varying language as 'algorithm,' 'formula,' and 'equation' merely illustrates the understandable struggle that the Court was having in articulating a rule for mathematical subject matter, given the esoteric nature of such subject matter and the various definitions that are attributed to such terms as 'algorithm,' 'formula,' and 'equation,' and not an attempt to create a broad fourth category of excluded subject matter.

The Man ual of Patent Examining Procedure, 2106.02 Mathematical Algorithms [R-5] - 2100 Patentability says this ruling "recognized the confusion".

In practical terms, claims define nonstatutory processes if they:
  • consist solely of mathematical operations without some claimed practical application (i.e., executing a "mathematical algorithm"); or
  • simply manipulate abstract ideas, e.g., a bid (Schrader, 22 F.3d at 293-94, 30 USPQ2d at 1458-59) or a bubble hierarchy (Warmerdam, 33 F.3d at 1360, 31 USPQ2d at 1759), without some claimed practical application.

Professor Lee A. Hollaar (whose Bilski brief has been previously discussed on Groklaw) holds in his treatise that the Appalat decision affirmed the Patent Office's practice on software related inventions, including the idea that a programmed general purpose computer is a specialized machine.

Alappat allowed the Federal Circuit to restate and clarify its past decisions on whether software-related inventions are patentable. In particular, it is clear that a programmed general purpose computer must be regarded as a specialized piece of hardware both for determining whether a claim is drawn to statutory subject matter and when determining whether the invention is novel and nonobvious. It is also clear that the 'mathematical algorithm' exception to statutory subject matter first discussed by the Supreme Court in Benson is limited to abstract mathematical concepts, not mathematics applied to a practical application. Machines, even though they carry out mathematical operations, are patentable.

This really did not differ substantially from the Patent Office's practice. The time was long past when the Office rejected an application just because it was a software-related invention. There were over 10,000 patents that could be considered software-related at the time of Alappat. But the Office position had swung back and forth on the patentability of software-related inventions. Alappat restricts the Patent Office from treating software-related inventions more strictly under Section 101 than other inventions.

Would it have been wise for the SFLC to have called attention to the Applat ruling and its consequences, and asked the Supreme Court for further clarification of its rulings on mathematical algorithms, in light of the First Amendment? Hasn't the Supreme Court ruled on the idea that a general purpose computer when programmed with a mathematical algorithm is a special purpose machine for the purposes of patentability, even if the machine does nothing other than execute the algorithm faster than can be done by hand? Hasn't the Supreme Court ruled on what is a "practical application" in relation to the claims of a patent, in particular, whether an idea for a practical application is patentable if the only novel part of the idea is the execution of a mathematical algorithm on a general purpose computer? Should the SFLC have reminded the Supreme Court more strongly about such rulings and what their bearing should have been on Appalat, let alone Bilski?

[ Reply to This | # ]

SFLC files Bilski brief: Software should not be patentable and don't forget the 1st Amendment
Authored by: Anonymous on Monday, October 05 2009 @ 10:14 AM EDT
On reading this brief I noticed that it's presenting weak and contradictory
arguments.

Patents stifle innovation, then go on to say that MPEG is patented so we had to
come up with Ogg-thera format.

So now, you have a patented format, and a free format developed because of a
patent !.

How then is that stoping innovation, im sure MPEG is not the best possible
method for encoding, but it was innovative in some way that allowed it to be
patented.

FAT, a patented file system, ok what did FOSS do, they developed their own file
storage formats, again where in this story did patents stifle innovation ?

It did not.


SFLC say that MS has not benifited from patents, and that they only had one to
start with (you only one good one).
And now they have 10,000 patents, and we can all see that Microsoft is doing so
badly.

And that NO OTHER software is able to do ANYTHING because of patents.

Ok, fair enough, except as is pointed out by SFLC they are able to even to this
day create product and applications that are not patent encumbered.

They JUST DONT WANT TOO, and the courts will see this for what it is.

A chance for a "FREE RIDE", what you're saying is you want to free
right, to take anything you think is good or usefull and use it yourself.

You dont think the courts cant work this out ?

There are billions and trillions of dollars tied up in patents of all types,
patents ARE an enforced and LEGAL form of monopoly they are designed and in
place to forter innovation, NOT IMMATATION.

If something is patented, there is incentive to invent a better way, more
efficient, quicker, cheaper method.

And if you do you might reap the rewards of your genius.

If on the other hand your happy to spend your life copying otherpeoples idea's
you're always going to playing catchup.

This whole patent argument from the FOSS community, is indicitive of their
attitude of "what's mine is mine and whats yours is mine".

If you dont have the protection of patents you are forced to hide your
innovations, that means stoping your ability to view not only the source code
but the executable code as well.

Some electronics and embedded systems that do not have patent protection, where
the designers what to protect their method, will grind the numbering off all the
IC's in the circuit and pot the entire assebly in Epoxy resin.

This stops you from even looking at the circuit laying, let alone accessing the
code in the embedded microcontroller.

Most moden microcontrollers with onboard memory (for there software application
) have a FUSE BIT that you blow that stops you being able to access the program
memory.

Stop patent protection on software, and the result will be the forcing
underground and CLOSED and SEALSED applications.

You wont be able to disassemble code or formats as they will be on the fly
encrypted.

You push this to it's conclusion and you will not win any freedoms, and you will
be back to having to do it yourself.

You will lose your "free ride" you seek so much, the result will be
you will have to do it by yourself with your own brains.

And thats exactly the way it should be, and how it has always been.

Oh, yes, there are thousands of patents on "algorithms" and on pure
math principles.

A parabola is a common math function, yet a parabolic dish radio antenna is
certainly patentable.

What about mandlebot set, just an equation, yet radio antenna's based on that
equation are patented and living inside your cell phone. (therefore quite a few
of them).

Freznell lens is an equation and it's patented.

"North Seeking Gyroscope" it's obvious when you see how it work, it's
just a spinning wheel and a pendulum.

It's patented, it's purly a simply application of common math and physics.
(Albert Einstein, was an expect witness from the patent office for a court case
involving Sperry and someone else about this patent).

North seeking Gyro, is also a computer, and performs an algorithm.

To say it's "Not physical" therefore not patentable, or it's just
math.

Then how do you explain how a Radio modulation technique (Like FM Frequency
Modulation) can be patented ?

Or NTSC, or PAL, or SECAM and so on, they are not physical by your weak
definition.

(even put your finger in a power point, then tell me electricity is "not
physical").
RMS is a physist, im sure he understands the term "ELECTRON MASS".

Does because something is very small, does not mean it's NOT physical.

******

I notice you are avoiding the drug industry mostly in this argument, the
development and testing and approval of drugs is a hugely expensive affair.

Without a mechanism for protection of that investment, the source of money
people will risk on the development will dry up.

The innovation will dry up.

Sure there are companies to disregard drug patents, but those drugs they are
cloning were invented because of patents NOT in spite of them.

Inventions dont just "appear from nowhere" rubber trees do not grow
steel belted radials. Someone had to take the latex from the tree and develop a
detailed method of transformation from latex to the steel belted radial tyre.

That process, of making bitumus rubber is patented, it's an algorithm.

1. Cut tree,
2. Drain Latex
3. Collect latex
4. boil
and so on all the way up to pressing the type.

It's a business method, it's an algrothm and it's patented.

Good luck with this line of defense, I dont really think either way it's going
to legalise stealing as you wish or benifit your FLOSS movement in any way.

[ Reply to This | # ]

What is SOFTWARE ?
Authored by: Anonymous on Monday, October 05 2009 @ 11:43 PM EDT
Really all software is, is this simpledefinition. "Software is the continuous on-the-fly re-configuration of hardware". software is usually an instruction of data, but the hardware does not know this, it received a "state" command, and the computer will re-configure itself to that new state. A real hardware configuration. That "state" may mean the next byte from memory may be placed into a register (for example). Then the computer receives another state instruction, and re-configures itself. (that might load the contents of that register into another peice of hardware like the ALU. The computer (hardware/configuration data) IS NOT MATH, the computer has no concept of numbers or math. Sure the configuration information mabey be numbers or letters (such as the HEX listing), but the 0's and 1's in each bit of data, is an entity unto itself. It's not a number it's a "state" of a state machine. It's not math because without a detailed description of the state machine, and the corresponding numbers and codes that set you're machine to a SPECIFIC state, (every cycle). If software is "math" as you claim you would be able to tell me what this complete code segment does right ? 0010b8 T 4242 0010ba T 0c42 0004 0010ba Y L121: 0010be T 6c 32 what does this code do ?????? without detailed knowledge of the systems configuration, a detailed knowledge of it's "states". There is NO WAY you can derive what this code does. Hint: it's the output from GCC for a single line of C code. But if you dont know the specific system configuration you have no idea what are numbers and what are states. NOTHING THAT IS DONE IN SOFTWARE CANNOT BE IMPLEMENTED IN HARDWARE. Thats pretty much because it's all hardware, software just being the instruction to reconfigure a state machine on the fly. It's can be done with relays, lights, gears and motors, steam, analogue electronics, Operational amplifiers, ROM's, RAM's, PLD, FPGA's, combinational logic, sequential logic, boolean ven diagrams, DSP's, or with a Analogue to Digital converter and with a constantly reconfigurable state machine. Just because they are called "computers" does not mean they naturally or natevily "compute". Ever remember people saying, "computers are stupid, you have to tell them EXACTLY what to do before they can do anything". So software is simply "STATE" instructions for constantly on the fly configurable state machine hardware. In fact "computers" are notoriously bad for doing math, that is why we need 80-bit wide math co-processors so computers can have half decent floating point math performance. I't so hard for general purpose computers to do math, it's easier to design dedicated hardware for the purpose. (again just another dump state machine). No math here, move along.

[ Reply to This | # ]

What is SOFTWARE ?
Authored by: Anonymous on Monday, October 05 2009 @ 11:45 PM EDT
Really all software is, is this simpledefinition.

"Software is the continuous on-the-fly re-configuration of hardware".

software is usually an instruction of data, but the hardware does not know this,
it received a "state" command, and the computer will re-configure
itself to that new state. A real hardware configuration.

That "state" may mean the next byte from memory may be placed into a
register (for example).

Then the computer receives another state instruction, and re-configures itself.
(that might load the contents of that register into another peice of hardware
like the ALU.

The computer (hardware/configuration data) IS NOT MATH, the computer has no
concept of numbers or math.

Sure the configuration information mabey be numbers or letters (such as the HEX
listing), but the 0's and 1's in each bit of data, is an entity unto itself.

It's not a number it's a "state" of a state machine.

It's not math because without a detailed description of the state machine, and
the corresponding numbers and codes that set you're machine to a SPECIFIC state,
(every cycle).

If software is "math" as you claim you would be able to tell me what
this complete code segment does right ?

<b>
0010b8 T 4242
0010ba T 0c42 0004
0010ba Y L121:
0010be T 6c 32
</b>

what does this code do ??????

without detailed knowledge of the systems configuration, a detailed knowledge of
it's "states". There is NO WAY you can derive what this code does.

Hint: it's the output from GCC for a single line of C code.

But if you dont know the specific system configuration you have no idea what are
numbers and what are states.


NOTHING THAT IS DONE IN SOFTWARE CANNOT BE IMPLEMENTED IN HARDWARE.

Thats pretty much because it's all hardware, software just being the instruction
to reconfigure a state machine on the fly.

It's can be done with relays, lights, gears and motors, steam, analogue
electronics, Operational amplifiers, ROM's, RAM's, PLD, FPGA's, combinational
logic, sequential logic, boolean ven diagrams, DSP's, or with a Analogue to
Digital converter and with a constantly reconfigurable state machine.

Just because they are called "computers" does not mean they naturally
or natevily "compute".

Ever remember people saying, "computers are stupid, you have to tell them
EXACTLY what to do before they can do anything".

So software is simply "STATE" instructions for constantly on the fly
configurable state machine hardware.

In fact "computers" are notoriously bad for doing math, that is why we
need 80-bit wide math co-processors so computers can have half decent floating
point math performance. I't so hard for general purpose computers to do math,
it's easier to design dedicated hardware for the purpose. (again just another
dump state machine).

No math here, move along.

[ Reply to This | # ]

But if he gets a patent on fiber optic cable, then we innovation will end because we can't copy
Authored by: Anonymous on Tuesday, October 06 2009 @ 07:09 AM EDT
the results of his hard work


Single optical fiber connector utilizing spherical alignment elements
US Pat. 4087155 - Filed Mar 23, 1977 - International Telephone & Telegraph
Corporation
Copending application of nary metallic-core electrical cable upon superficial
ex
- Charles K. Kao entitled, "Precision Surface Optical ternal inspection.
...

Single optical fiber connector
US Pat. 4174882 - Filed Dec 22, 1977 - International Telephone and Telegraph
Corporation
Copending application of Charles K. Kao entitled, "Precision Surface
Optical
Fiber", Serial No. (Kao 17), filed concurrently herewith, assigned to the
...

Single optical fiber connector utilizing elastomeric alignment device
US Pat. 4056305 - Filed Apr 26, 1976 - International Telephone and Telegraph
Corporation
Copending application of Charles K. Kao entitled, The present invention relates
generally to a connector "Precision Optical Fiber Connector," Ser. No.
...

Single optical fiber connector
US Pat. 4158476 - Filed Dec 16, 1977 - International Telephone and Telegraph
Corporation
Copending application of be used in practical signal transmission and
processing
Charles K. Kao entitled, "Precision Surface Optical systems, ...

Single optical fiber connector
US Pat. 4201444 - Filed Feb 13, 1978 - International Telephone and Telegraph
Corporation
Copending application of Charles K. Kao entitled, "Precision Optical Fiber
Connector", Ser. No., filed Sept. 15, 1975 now Patent No. ...

Single optical fiber connector
US Pat. 4088390 - Filed May 3, 1976 - International Telephone and Telegraph
Corporation
Copending application of nary metallic-core electrical cable upon superficial
ex
- Charles K. Kao entitled, "Precision Surface Optical ternal inspection.
...

Interlocking precision optical fiber connector or support
US Pat. 4217029 - Filed Mar 31, 1978 - International Telephone and Telegraph
Corporation
8//80 OR *»217»029 United States Patent Kao Hi] ... INTERLOCKING PRECISION
OPTICAL FIBER CONNECTOR OR SUPPORT [75] Inventor: Charles K. Kao, Roanoke, Va.
...

Method of fabricating high strength optical preforms
US Pat. 4199337 - Filed Oct 6, 1978 - International Telephone and Telegraph
Corporation
For example, Kao et al. have determined that the radial thickness of the outer
... filed Oct. 6, 1978 by Charles K. Kao and Mokhtar S. Maklad, ...

Praseodymium laser system
US Pat. 5309452 - Filed Jan 31, 1992 - Rutgers University
... Communications for 35 Local Area Networks with Frequency-Division-
Multiplexing" (Charles C. Ih and Charles K. Kao), incorporated by
reference
herein. 4. ...

Water resistant high strength fibers
US Pat. 4183621 - Filed Dec 29, 1977 - International Telephone and Telegraph
Corporation
... [54] WATER RESISTANT HIGH STRENGTH FIBERS [75] Inventors: Charles K. Kao;
Mokhtar S. Maklad, both of Roanoke, Va. [73] Assignee: International Telephone
...

Stay up to date on these results using the patents RSS feed on Charles K. Kao.

12345678910

Congrats on the Nobel Prize Chuck

[ Reply to This | # ]

But if they get patents on CCD's all inovation in digital cameras will end because we can't copy
Authored by: Anonymous on Tuesday, October 06 2009 @ 07:16 AM EDT
the results of their hard work.

BURIED CHANNEL CHARGE COUPLED
US Pat. 3852799 - Filed Apr 27, 1973 - Bell Telephone Laboratories Incorporated
A basic type of buried channel charge coupled de- The two-phase buried ... of
WS
phase surface channel charge coupled devices and are Boyle and GE Smith, ...

CHARGE COUPLED DEVICES EMPLOYING
US Pat. 3789267 - Filed Jun 28, 1971
This invention relates to charge coupled devices An obvious problem inherent in
the ... In the Boyle-Smith application there is described pri- Still more ...

CHARGE COUPLED AMPLIFIER
US Pat. 3806772 - Filed Feb 7, 1972 - Fairchild Camera and Instrument
Corporation
This next charge As described by Boyle and Smith, a charge coupled ...
amplifier
inputs and the As discussed by Boyle and Smith, charge coupled de- . ...

CHARGE COUPLED MEMORY DEVICE
US Pat. 3891977 - Filed Jul 15, 1974
25 registers, whereby the serial bits of data are recircu- As discussed by
Boyle
and Smith, charge-coupled de- lated through ...

Charge coupled amplifier
US Pat. 3999082 - Filed Feb 4, 1974 - Fairchild Camera and Instrument
Corporation
30 output energy, in this case the output charge of each As discussed by Boyle
and Smith, charge coupled amplifier, is successively added to achieve far ...

Coherent sampled readout circuit and signal processor for a charge coupled ...
US Pat. RE30087 - Filed Dec 18, 1975 - Westinghouse Electric Corp.
If the charge cou- This invention relates to charge coupled device pied circuit
is ... As disclosed in the Boyle-Smith signals are applied to the aforesaid ...

Black and white reference and end-of-scan indicator for charge coupled devices
US Pat. 4675549 - Filed Apr 3, 1985 - Fairchild Camera and Instrument
Corporation
Prior Art 20 Charge-coupled semiconductor devices were first invented by WS
Boyle and GE Smith. See "Charge- Coupled Semiconductor Devices," Bell
System ...

CHARGE-COUPLED DEVICE WITH OVERFLOW PROTECTION
US Pat. 3896485 - Filed Dec 3, 1973 - Fairchild Camera and Instrument
Corporation
DESCRIPTION OF THE PRIOR ART WS Boyle and GE Smith describe the basic concept
of
charge coupled semiconductor devices (hereinafter referred to as
"CCD") in ...

CHARGE COUPLED AREA IMAGING DEVICE
US Pat. 3896474 - Filed Sep 10, 1973
This anti-blooming This invention relates to charge coupled area imaging
structure disclosed by ... As discussed by Boyle and Smith, CCD's are po-
element. ...

BURIED CHANNEL CHARGE COUPLED DEVICES
US Pat. 3792322 - Filed Apr 19, 1973
16, 1970 by WS Boyle and GE Smith; 20 bulk is the convenience of creating ...
The storage medium, charge coupled devices is the inscrutable presence of ...

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charge coupled.



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Willi, George, say cheese! Congrats on the Nobel Boys.

[ Reply to This | # ]

I like this argument
Authored by: Rhialto on Thursday, October 08 2009 @ 09:23 AM EDT
I like this argument a lot: "Therefore, since anyone may copy or publish
the actual patent without infringing, it must also be permissible to communicate
its claims in source code form."

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I have not "authored" this, I have written it.

[ Reply to This | # ]

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