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Re: Wow! Some Report! Refreshing! | 364 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Welcome to Groklaw!
Authored by: artp on Friday, January 04 2013 @ 06:49 PM EST
Just another member here, but I thought I'd welcome you.

On your claims, I would comment that the Supreme Court seems
to understand the issue fairly well. Perhaps you have read
their opinions?

My problem with software patents is that there is no new
material in programming. Everything that can be done has
already been determined by the compiler writer and the OS
team. There is nothing new under the sun. It is analogous to
a carpenter wanting to patent his new house construction. He
is constrained by the tools and materials that he has at
hand, not just by the skills that he brings to the project.

As an engineer and sometimes software writer, I have never
had any use for patents. They are always assigned to a
corporation, and no royalties flow to the inventor. My son
has a patent, developed at a university, but he hasn't seen
any great riches out of it that I know of. Most engineers
that I know have some pride in the patents (if any) that
they
contributed to, but otherwise have no real ownership. And
this is for hardware, not software. Most of us just laughed
at
the "plaque and $50" that is handed out for a patent.

In addition, I know of no individuals who have enough money
to wage patent war with Apple. I'm sure Bill Gates could
afford it, but I don't know the man. And I don't know if any
individual inventors exist who could wage patent war as it
exists today. It takes corporate backing to do that. So the
"individual inventor" tack holds no water for me.

As for "reality" that you mention, to paraphrase "The
Princess Bride", "I don't think that word means what you
think it means."

If you stick around, try reading the cases here, the
exhibits, the legal opinions. Listen to the other attorneys
that are here, and especially to the technical giants who
hang out here who created all the technology that you used
to post your comment. I keep being amazed at the talent that
has gathered here. Although I have been computing since
1974, and ran a flagship Data Center for a Fortune 30
company, I take a back seat to a lot of people here. I am
just a practitioner, who studied the works of others who are
also here.

The opportunity is here if you want it.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | Parent | # ]

To cover the first point: you don't seem very versed in actual Law
Authored by: Anonymous on Friday, January 04 2013 @ 06:51 PM EST

I am not of the Legal field, but I am willing to learn what the actual Law says.

Your first point, starts with:

A developer who comes up with...
Your point, as I understand it, is basically:
    If it has commercial value, it's a patentable invention because that's the purpose of Patent Law!
I point to the Supreme's ruling in Mayo v. Prometheus where Prometheus patent was rejected by the Supreme's for lack of patent eligibility.

It is not disputed that:

    A: A process was identified.
or
    B: Said process had commercial value.
Perhaps you can explain why the Supreme's got it wrong.

If you can't explain why the Supreme's got that wrong, then I must conclude your point is meaningless in the context of patent eligibility (of which it seems to speak). If you're willing to speak about meaningless things without backing them up, I don't see any reason to read further.

RAS

[ Reply to This | Parent | # ]

Another welcome
Authored by: Anonymous on Friday, January 04 2013 @ 07:09 PM EST
However, please don't imagine that this place is filled with
uneducated, non-business savvy nerds who think movies should
be free to pirate and anarchy is the way forward.

Start by realising that your view is actually your world-
view shaped by your employment and peers. It is not
necessarily the most valid opinion.

The thing is it can be very strongly argued that the only
economy that software patents help is the legal economy but
hinders to a far greater extent the technological and
progressive development of the nation.

Are patents designs to technologically enhance a nation by
publishing the details of an invention so that others can
licence and enhance it? Well most engineers will
specifically not search patents (due to the legal
ramifications) but still manage to easily solve a similar
'problem'. That is because when you have a problem in
software to solve (like a math problem) you create a
solution to solve it. Just because someone has also needed
to solve that problem before you (probably in a totally
different and unrelated sphere) doesn't mean that you should
now not be allowed to also solve that problem.

So the trouble with many a software patent is they don't
specify code to fix a problem (such as a detailed mechanical
patent) they just often make a set of claims which basically
boils down to "using a computer I solved this problem". This
is too broad.

However having the detailed steps and actual code that was
used to solve it would fall just fall under copyright law so
a patent isn't needed.

These patents are rarely used to protect work that is a
breakthrough - something that makes people think 'Wow' that
engineer is really special. It is more 'did you do anything
new today?', 'can we patent it?' -> add to lawsuit
collection/war chest.

The next problem is NPEs. There are plenty of examples of
nothing more than an extortion racket to make people pay to
use an invalid patent because it is cheaper than contesting
it. Very often these are software patents, asserting for
modern technology a patent from before that technology even
existed.

I can't think of a single time when I have seen a software
patent that I think could be used as a valid example of
where it could fall into the category of being suitable for
being granted a patent for the length of time that it is
granted and fulfils the intent of the patent system.

Some countries don't have software patents, and you know
what - they get on just fine without them.

[ Reply to This | Parent | # ]

Welcome
Authored by: jbb on Friday, January 04 2013 @ 08:19 PM EST
You said:
Protecting these types of inventions, particularly by small entity inventors, is the fundamental purpose of our patent laws and fully reflects Congress' intent.
That may be true but if so, it would only further lower my opinion of Congress. What you state was certainly not the purpose or intent of the Founding Fathers who (in this context) only gave Congress the right to pass laws:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The problem is that having 100,000+ software patents covering every smartphone ever made cannot possibly promote the progress of science and useful arts. At the low low rate of a penny a patent, that would still make every smartphone come with a $1,000 patent license fee.

You then said:

Note that most software developers are neither owners or inventors of patents, so why should software developers even have a voice in determining what is patent eligible subject matter (other than their rights as ordinary citizens to democratically change laws and government policy)? Being affected as a potential infringer does not give you the right to skew the rules that bother you, per se -- that is my point here.
Since the Constitutional purpose and raison d'etre of patents is to promote the useful arts, software developers most certainly should have a say in whether software patents are helping or hurting. ISTM that if they are hurting then an argument could be made that software patents are Unconstitutional. More importantly, since we are implicitly talking about software developers who are independently coming up with software covered by patents, it is extremely strange that you would claim they are not inventors. It is no longer possible to write large software projects without violating hundreds or thousands of patents. I am astounded that you don't see this as a grave problem that needs to be addressed.

Patents are a reality and have provided enormous benefit to the US economy relative to other systems that did not secure commercial rights for inventors.
The enormous benefit is an assumption on your part. There is ample evidence it is wrong. For example the development of steam engines and the development of airplanes were both extremely hampered by patents. The software industry grew by leaps and bounds during a time when software patents were not allowed. Even Bill Gates said that growth could not have happened if software patents had existed. We have already seen tremendous harm being done by software patents. Do you have even anecdotal evidence of something good they have done? Should we ask actual software developers if software patents are a positive motivational force? Would it be fair to limit our queries to software patent holders and the lawyers who work for them?

As far as software is math is concerned, I feel its biggest fault is that it is an unpersuasive argument. Here is a better one (IMO). The current patent system is chock-a-block full of bogus software patents. The fundamental reason for this is that most judges, juries, lawyers, and patent examiners are not qualified to separate "valid" software patents from bogus ones. Perhaps echoing Gresham's law, bad software patents are dominating the system right now.

We (everyone but patent lawyers) desperately need a clean demarcation of what is patentable and what is not. I believe software vs hardware is the cleanest demarcation available. Once you try to move the line of demarcation inside of software in general so some software is patentable and some is not then you will end up with the system once again being dominated by bogus software patents. Can you suggest a clean line to separate patentable software from non-patentable software?

---
Our job is to remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay

[ Reply to This | Parent | # ]

Re: Wow! Some Report! Refreshing!
Authored by: Imaginos1892 on Friday, January 04 2013 @ 09:13 PM EST
Groklaw is not difficult to use. To start a new thread, click the big "Reply" button in the black
bar separating the article from the comments. As for its "textual nature", this is not YouTube; we
are discussing law and technology. Go thou elsewhere for entertainment.
Just discovering Groklaw today...
Maybe you're actually telling the truth, but you are using the same old tired arguments and
invalid analogies as a certain troll that has plagued this venue for months.

I'll give you the benefit of the doubt, though, and try to explain a few things.
Be warned - you will have to think in terms that are unfamiliar to you. Many of us here are
professionals who have been programming computers every day for 30 years or more.
We understand software in ways that you obviously do not. We have spent several years
sharpening our wits on the same absurd fallacies you are espousing here.
  1. Atoms are real, physical objects with intrinsic properties like mass and chemical reactivity that
    WE CAN NOT CHANGE, only figure out what to do with. Software is not physical; it is entirely
    composed of abstract mathematical operations that were defined by the computer's designers,
    and can be redefined if necessary. Can you redesign atoms to better suit your application?

  2. Software is not a machine, or a composition of matter, or a method, or a process. It is a description
    of a process in terms of simple mathematical logic operations that can be carried out by any
    agent capable of following the steps. That could be an electronic computer, or a virtual simulation
    of a computer, or a mechanical computer like Babbage's Analytical Engine, or a human with a large
    supply of pencils and paper, or an infinite number of monkeys. It does not matter who or what performs
    the steps, or what underlying method is used! If the steps are followed accurately, the correct result
    will ensue. That would be like asserting that you could substitute fluorine atoms for iron atoms
    and still have the same machine.

  3. Software is not "embodied" in a digital computer, it is expressed as particular patterns of voltage
    and current within circuits that were designed to express every possible pattern of voltage and current.
    It is not possible to "invent" any state within the computer that was not already inherent in and
    anticipated by the design of the hardware. Software causes the computer to do exactly what it was
    designed to do - compute!

  4. We are not here to debate the atrocious mess that is software patents today. We are trying to
    improve the situation, and the biggest improvement would be to eliminate them. Software IS math.
    That is a fact. If the law is consistent with the facts, it can deliver justice. If it is not,
    it can only deliver injustice. That's what software patents are doing now.
------------------------
When someone does a foolish thing, you should say it is a foolish thing.
They may still continue to do it, but at least the truth is where it needs to be.

[ Reply to This | Parent | # ]

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