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| Authored by: Anonymous on Wednesday, June 13 2012 @ 11:26 AM EDT |
For patiently explaining his position many different ways.
I finally see where he's coming from.
I've never been a fan of the "[all] software is [just] math"
argument: I thought it was doomed to failure. When you
start a conversation with a lawyer with that phrase, you
inevitably get into an argument about the definition of
math. That's not at all helpful. It doesn't matter whether
one is a mathematician and the lawyer isn't; the only
definition of "math" that matters is the one that the
lawmakers had in mind when they said "math isn't
patentable."
By way of illustration, imagine a sign on the courthouse
door that says "no animals allowed inside, local ordinance
1234". A biologist therefore concludes he cannot legally
enter the courthouse. Humans are members of kingdom
Animalia, therefore animals. This definition is absolutely
correct, and clearly superior to the everyday definition for
basically all purposes (except brevity in sign-making). Now
assume that he does something to get this question
considered on appeal - maybe he sues the town council [in a
different courthouse] asking for an injunction to let him
enter the building. (Let's not get distracted by details
like standing.) He will lose, because the only definition
of "animal" that matters is the one the town council had in
mind, the one that excludes humans.
But if you start with a phrase like "software is abstract
because it manipulates symbols, not atoms", then it's much
easier for lawyers to fit that into a defintion of
"abstract" or "math" that they already understand because
it's been explained by the courts. I think we even got Mr
Risch conceding that his idea of "usefulness" boils down to
physicality, and therefore pure software isn't patentable.
Now we just have to get lawyers like Mr Risch to concede
that adding the words "on a computer" to a patent doesn't
change the subject matter of the patent. I don't know why
he has trouble with this; I think the Supreme Court has
stated somethign quite similar (regarding medical testing)
quite recently.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Wednesday, June 13 2012 @ 01:05 PM EDT |
Thanks also for your patience. I was one of several who
often forgot that you were in the midst of a subject-matter
argument and was unable to ignore the obviousness problems
of your examples.
I did feel like I was doing a lot of work trying to explain
your position for you. It would help if you started with a
thesis statement, gave a summary of the argument -- you
know, things they teach to 1Ls.
I think (but I'm still not sure) that you're saying that
arguing against patents on subject matter grounds is a waste
of time, because there exists at least one reasonable ground
on which one can argue that software qualifies. I'm not
sure you ever found that ground in any specific way - you
kept shifting between machines, processes, etc. But you
convinced me that a reasonable person might think that
software is creative, maybe even inventive, that it's
useful, and that therefore it's worthy of consideration, at
least, as patentable subject matter, and that there's
nothing (except good policy) to prevent software from being
both patentable and copyrightable simultaneously. This
position is rather messy at the edges (e.g. does this mean
math should be patentable?), but most legal positions are.
What was most frustrating to me is that you didn't bother to
argue why this was a *good* or *right* position, i.e., why
it was more convincing than, say, the idea that copyright is
all the protection that software needs. My best guess is
that you're starting from the assumption that the supreme
court will always allow software patents, and so you don't
really care whether their arguments are good or right.
That's rather disappointing for someone in your position.
My sense is that the Supremes have gradually become aware of
the scope of the disaster caused by software patents, and
that they could be convinced to do something about it.
Actually I think you feel the same - your thesis is that the
best avenue for reform is litigation. So why stop at asking
them to enforce rules for things like obviousness which are
already rather clear, and which you admit the patent office
will continue to ignore? Why is that a *good* position?
Waiting for the Supremes to act is already a very bitter
pill to swallow. We're in a crisis - our industry is being
destroyed, and it's not just any industry, it's the future
of American economic growth. Are we supposed to wait until
some patent defendant finds the resources and courage to
take a long-shot case to the Supreme court so they can tweak
some minor rule around obviousness? How many years will that
take? Then we wait for the process to repeat a dozen times
before all of your suggested reforms are adopted? How long
after that should we wait to see whether these reforms are
working?
Influencing the Supremes in the long term is probably how
you are best positioned to act, but it seems almost
dishonest to spend so much time on that when you could at
least mention how legislation would solve this problem at a
stroke. And maybe you should care a little bit whether
patents actually promote innovation or not.
[ Reply to This | Parent | # ]
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