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Answering Gene Quinn, Patent Attorney - Updated
Friday, November 14 2008 @ 09:04 PM EST

Well. I got a very nice note from Gene Quinn. He's reading Groklaw. I'm reading what he is writing, because it's fascinating, and it's an opportunity to speak directly with a patent attorney who is a true believer.

His most recent article is one I think we should answer, since his fundamental question is this: why should software *not* be patentable?

From a conceptual standpoint why not allow for software to be patented. What is the harm? I know many of you reading this have now gone into an apoplectic rage, but conceptually why should software be treated any differently? Isnít the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none....

Software is not a mathematical equation, nor is it a mathematical language. How anyone who writes software or professes to understand software could argue to the contrary is beyond me. Do people who write software actually think they are sitting down and writing mathematical equations and stringing them together? It is absurd to have such a narrow view of software. When you write software you are trying to enable a device, such as a computer, to provide certain functionality given a certain stimulus. So you are writing instructions for a computer or other device and explaining how the computer or device needs to process information. You do not explain how to process information with mathematical equations.

If you would read his article in full and then answer him here, in members-only space, I'll collect the best comments and try to tie it all together, if it works out well. It's an opportunity to reach not only Quinn but all the other patent attorneys who do read what he writes.

Game on?

Update 2: I'm reading your comments, and I don't think I can improve on them. So I'll let you all speak directly, by making this article public now.

In continuing his theme, he argues thus:

You explain how to process information by defining instructions that are followed. Does it help to understand basic mathematical priciples, of course. But that does not mean that software code is a mathematical language. You don't tell the computer that 1 + 1 = 2, you explain to the computer how to process information so that 1 + 1 will consistently and predicably equal 2.

Software dictates a process, first in source code and then in object code that can be read by a machine. Every programmer writes code to direct the process and path that must be followed. You just write it for a machine to be able to understand. So if software is not patentable then there really is no reason for any process to be patentable, because every process is just a series of instructions that are followed. Why a series of instructions that are followed by a machine should not be patentable but a series of instructions that are followed by humans is patentable is beyond me. This is a distinction without a difference. If anything, a process that is followed by humans should not be patentable because you are taking away rights from a person and preventing them from doing something they had the right to do right up until the time a patent was granted.

Software is a tool and tools have always been patentable! The fact that software is a tool used by a computer ought to not render the tool unpatentable.

Update: Not to throw another log on a fire or anything, but here's a comment he left on the article answering Groklaw, which I earlier put in News Picks:

Why would you ever ask computer scientists and programmers what is or is not patentable since they have no knowledge of the law?

The fact that computer scientists and programmers mistakenly believe software to be mathematical merely demonstrates that they have learned absolut[e]ly nothing about software and what it is and does.

The simple truth is that software is not a mathematical language. You write code to direct action. The source code is compiled into object code that can be understood by a computer. This object code explains to the machine what the machine needs to do.

Calling software a mathematical language is like calling the English language a letter language. After all, every word is made of letters, so all any language is is just letters. This is absurd. You put letters together to form words, then sentences, then paragraphs. So a book is not just a combination of letters. We use letters to form the words that lead to concepts and make it possible to convey meaning in the form of communicating what is in the mind of the author to the minds of the readers.

If you want to cling to software b[e]ing a mathematical language then you need to come to terms with the fact then that your position means that software cannot be copyrighted and certainly not capable of being protected by trade secret. After all 1+1=2 is not something that is secret, and it is not original in any way. So if you want to go down this path then come to terms with the fact that what computer scientist and programmers do is not original or creative in any way, shape or form.

I love the idea that the folks who write software have no clue what software is. But leave that aside, and just calmly answer his arguments. This isn't a flame war. Groklaw doesn't do flame wars. But it's worth answering him and all who think like this, I believe. People can improve, if they are educated by new information.

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