And because ยง 101 of the Patent Act says that
it precludes patent
protection for laws of nature,
and Math and Logic just exist *AS LAWs OF
NATURE*,
NO implementations or expressions that use Math
or Logic should be
patentable.
I have trouble seeing every piece of software in
existence as a law of nature. You jump from saying a law of nature not being
patentable to everything using certain laws of nature (math and logic)
being unpatentable. But doesn't every invention use laws of nature? A
mechanical invention is mechanical as much as software is math. An
optical invention is optical as much as software is math. A chemical
invention is chemical as much as software is math. If software being math
is an argument against software patents, isn't it an argument against all
patents? That obviously is not the intention of the law.
To me an
important reason that software patents don't make sense has to do with
obviousness. An invention must not be obvious to someone with ordinary skill in
the art to be patentable. How obviousness is actually tested in courts is,
judging from the bits and pieces I picked up about it here and there, a
procedure with a high likelyhood of being completely disconnected from reality
and therefore problematic. Ignoring that, there are I think about 900,000
software engineers in the US. Assuming their skill, like intelligence, follows a
normal distribution, the term "ordinary skill" seems to suggest that less than
450,000 software engineers should think the invention is obvious. But not too
much less, otherwise "ordinary skill" is a nonsensical term to use. But let's
take an invention that is obvious to only the most brilliant 1% of software
engineers. That's still 9,000 people. Most inventions happen because the field
has advanced to a level where some limitation starts to be felt like problem.
All it takes is someone from this group of 9,000 people to be in a place where
this problem is felt and the invention will be done. A much larger group of
software engineers will not think the solution is obvious, but they will still
be capable enough to get there. And many of the 9,000 or the larger group will
be able to find alternative solutions. Solutions for the problem will be
found in these conditions. Patents add no value at all (and it's clear that they
do a lot of damage). The same will be true for any field where so many people
have expertise and which can be practiced without having to do the kinds of
investments only the largest corporations can afford. The criterion should not
be obviousness, and certainly not to someone with "ordinary skill" in the
subject matter, but the likelyhood an invention will be lost to society without
patent protection. For the large majority of "inventions" in software that
likelyhood is zero. [ Reply to This | Parent | # ]
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