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USPTO Roundtables on Software Patents: CA and NYC, video available
Wednesday, April 10 2013 @ 04:42 PM EDT

The USPTO has now made available video and slides from the speakers at the two roundtable discussions on improving software patents held so far, the first in Silicon Valley on February 15, and the second in New York City on February 27. Sadly, it's .wmv and mostly all PowerPoints, like it's still the '90s and everyone uses Windows.

Those days are so over. Time to modernize, I'd suggest. Nowadays, most people use Apple or Android, on mobiles, to boot.

There's a new deadline for sending them comments, April 15. Groklaw already sent ours in, but if you have further thoughts, there's still time. And the comments already received are available now too.

Ours are there, and there's one from Michael Risch [PDF] on Mark Lemley's ideas regarding functional claiming, which I thought you'd find interesting, in that he acknowledges that running new software on a computer does not make the hardware a new machine, that that's a legal fiction that began with In re Allapat:

The rise of functional claiming – at least widespread acceptance of it – can be traced to In re Alappat, and its legal fiction that old hardware becomes new again if it is configured with different functionality. We live with this fiction because it allows for patenting of machines rather than methods, but functional claiming is the necessary by-product. The easiest way to solve the functional claiming problem is to reverse the rule of Alappat, and recognize reality: machines do not become new simply because new software is loaded onto them. Algorithms are not structure. Trying to fit algorithms into the framework of structure is problematic in that sense alone, because, as discussed below, we have little way of knowing when an algorithm is sufficiently defined as to be “structural,” nor do we know what its equivalents are.
I don't agree that software should be patentable at all, and so I don't agree with the rest, but this is progress. We have not been laboring in this vineyard without results.

Video of the Silicon Valley roundtable is available in three parts: Part I; Part II; Part III. Speakers were Chien, Colleen (Assistant Professor) & Karkhanis, Aashish (SCU Law '13), Santa Clara University [PDF]; Ellis, John [PPT]; Gutierrez, Horacio, Microsoft [PPT]; Hewitt, Carl [PPT]; Molino, Tim, BSA [PPT]; Patel, Aseet, Banner & Witcoff, Ltd. [PPT]; and Russell, Jeremy [PPT].

Microsoft *and* BSA? They didn't think that was putting somebody's finger on the scale just a teensy, tiny bit?

Looking at the PowerPoint from Mr. Patel, a patent attorney, here's his definition of software, on slide 3:

What is a Software Patent?

"Software is all about the implementation of a function across machines."

Um. No. There is no "across machines" in the definition. No wonder the USPTO gets things wrong all the time, if patent lawyers tell them things like this. Software is instructions telling a computer what to do, algorithms and data.* There is no machine in there. There could be "across machines" functionality, I suppose, in a sense if I use an application to upload something to your server, for example, but that's not the basic definition of software. And even there, there is no machine in the software itself. Lawyers like to "create" a machine to make it sound patentable, as in the infamous "on a computer" language. But there is no machine within software.

In New York city, here's the roundtable video, Part I; Part II; and Part III. The speakers were Chin, Andrew, The University of North Carolina at Chapel Hill [PPT]; Magarshak, Gregory, Qbix [PPT]; Mauro, Charles L. [PPT]; Weiner, Steven, SRI International [PDF].

I don't use Microsoft products, so I won't watch the video. Here's why. I can't agree to the EULA terms Microsoft sets, or its privacy policy.

Here's what happens when you "activate" the software:


a. More on how activation works. The software will notify you whether the installed copy of the software is properly licensed. During activation, the software will send information about the software and your computer to Microsoft. This information includes the version, language, and product key of the software, the Internet protocol address of the computer, and information derived from the hardware configuration of the computer. For more information about activation, see If the licensed computer is connected to the Internet, the software will automatically connect to Microsoft for activation. You can also activate the software manually by Internet or telephone. In either case, Internet and telephone service charges may apply.

b. Re-activation. Some changes to your computer components or the software may require re-activation of the software.

c. Activation failure. During online activation, if the licensing or activation functions of the software are found to be counterfeit, improperly licensed, or include unauthorized changes, activation will fail and the software will attempt to repair itself by replacing any tampered Microsoft software with genuine Microsoft software. The software will notify you if the installed copy of the software is improperly licensed or includes unauthorized changes. In addition, you may receive reminders to obtain a properly licensed copy of the software. You may not be able to obtain certain updates or upgrades from Microsoft if your copy of the software is found to be improperly licensed.


The following software features use Internet protocols, which send to Microsoft (or its suppliers or service providers) computer information, such as your Internet protocol address, the type of operating system, browser and name and version of the software you are using, and the language code of the computer where you installed the software. Microsoft uses this information to make the Internet-based features available to you, in accordance with the Windows 8 Privacy Statement, at Some Internet-based features may be delivered at a later date via Microsoft’s Windows Update service--if, for example, you acquire an application that relies on one of those services.

a. Windows Update. If you use the Windows Update service in the software, updates or downloads to the Windows Update service will be required for proper functioning of the service, from time to time, and will be downloaded and installed without further notice to you.

b. Windows Digital Rights Management technology. Some content owners use Windows digital rights management technology (WDRM) to protect their copyrights and other intellectual property, including by disabling the software’s ability to play protected content if WDRM fails. You agree that Microsoft may include a revocation list with the licenses.

c. Windows Media Player. When you use Windows Media Player, it checks with Microsoft for compatible online music services in your region and new versions of the player. You may only use Windows Media Player as described at

As you see, one is presumed a pirate until proven otherwise. Well, I'm not, but I refuse to use software from a company that assumes I need to be searched at the door. And it creeps me out that Microsoft checks what "region" I am in. I could go on.

And as for "privacy", get a load of their use of web beacons, including third parties' web beacons:

  • We collect additional information about your interaction with Microsoft sites and services without identifying you as an individual. For example, we receive certain standard information that your browser sends to every website you visit, such as your IP address, browser type and language, access times and referring Web site addresses. We also use Web site analytics tools on our sites to retrieve information from your browser, including the site you came from, the search engine(s) and the keywords you used to find our site, the pages you view within our site, your browser add-ons, and your browser's width and height.

  • We use technologies, such as cookies and web beacons (described below), to collect information about the pages you view, the links you click and other actions you take on our sites and services.

  • We also deliver advertisements (see the Display of Advertising section below) and provide Web site analytics tools on non-Microsoft sites and services, and we collect information about page views on these third party sites as well....

  • In order to offer you a more consistent and personalized experience in your interactions with Microsoft, information collected through one Microsoft service may be combined with information obtained through other Microsoft services. We may also supplement the information we collect with information obtained from other companies. For example, we may use services from other companies that enable us to derive a general geographic area based on your IP address in order to customize certain services to your geographic area....

Use of Web Beacons

Microsoft Web pages may contain electronic images known as Web beacons - sometimes called single-pixel gifs - that may be used to assist in delivering cookies on our sites and allow us to count users who have visited those pages and to deliver co-branded services. We may include Web beacons in promotional e-mail messages or our newsletters in order to determine whether messages have been opened and acted upon.

Microsoft may also employ Web beacons from third parties in order to help us compile aggregated statistics regarding the effectiveness of our promotional campaigns or other operations of our sites. We prohibit Web beacons on our sites from being used by third parties to collect or access your personal information.

Finally, we may work with other companies that advertise on Microsoft sites to place Web beacons on their sites in order to allow us to develop statistics on how often clicking on an advertisement on a Microsoft site results in a purchase or other action on the advertiser's site.

When I see Microsoft comparing itself favorably with Google on privacy issues in its loathsome Scroogled campaign, my lip curls. Anyway, that's why I won't be watching the round tables.

Note that the issue isn't that I don't know how to watch it. I could download Flip4Mac and watch with Quicktime. I know that. But I am not willing to say yes to such degrading terms, and I'm not crazy about Flip4Mac's terms either. I could use my GNU/Linux computer, but with mplayer or the equivalent, you have to accept proprietary plugins with Microsoft code, and God only knows what that code does in the dark. I'm not allowed to look, so I'm simply not interested. Anyway, my goal is not to use Microsoft software at all. I don't admire the company's business practices, and it lost my trust. Why would I use software from someone I don't trust?

* Of course, there's a footnote. This, from PoIR:

Software is instructions when the chosen universal algorithm is an instruction cycle. This is the case most of the time, but not always.

In a language of the functional programming type, the universal algorithm may be some variant of beta-reduction. The software is a data structure that is modified in memory as the computation progresses. This is not instructions.

Software is data given to a universal algorithm. It is instructions only when the universal algorithm is designed to take instructions as its input. Not all universal algorithms work this way.

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