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| Authored by: Tkilgore on Monday, March 11 2013 @ 06:02 PM EDT |
The document is reproduced below, with proposed corrections. I have also
indicated places in the document where I was genuinely confused while reading
it, or had the impression that someone else reading it might be confused. In
some of those places I sort of had the idea of what was meant, and I have
suggested changes in accord with my understanding. In other places, I remain
confused and I said so.
As an example of the kind of change which you will not find below, I stayed away
from such topics as to whether to mention a subject called "semiotics"
by name. I have my doubts about that issue, myself. Perhaps in another post I
will join that discussion, but not here. For, if we are not careful we can get
into stuff that can be discussed until the heat death of the universe.
I hope that what is below will be helpful in clearing up the many little
mistakes that I found, and that it will also be helpful in pointing out some
rough spots in the document where the meaning is actually unclear. I also want
to point out here that it is often much easier to fix what someone else started
with than it is to write the whole document from scratch. I know this perfectly
well, and I hope that all who were involved in writing the original will take my
suggestions in a reciprocal spirit.
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Response to the USPTO on the Second Topic:
Suggested Additional Topics for Future Discussion by the Software
Partnership
In response to the USPTO's request for topics for future discussion by the
Software Partnership, the technical community at Groklaw suggests the
following four topics, in order of priority:
1: Is computer software properly patentable subject matter?
2: Are software patents helping or hurting innovation and the US
economy?
3: How can software developers help the USPTO understand how computers
actually work, so issued patents match technical realities, avoiding patents
on functions that are obvious to those skilled in the art, as well as
avoiding duplication of prior art?
4: What is an abstract idea in software and how do *expressions* of
ideas differ from *applications* of ideas?
In order to explain why these topics could be fruitful, here are some brief
thoughts in explanation.
(to the above paragraph, add the following sentence)
A more detailed discussion of each of these topics
may be found here. (reference to the more expanded version)
(The rationale for the above change is that it never hurts to mention twice
something which you really want the reader to see once)
Suggested topic 1:
Is computer software properly patentable subject matter?
If software consists of two elements neither of which is patentable subject
matter, can software itself by patentable subject matter? Software consists
of algorithms, in other words mathematics, and data, which is being
manipulated by the algorithms. Mathematics is not patentable subject matter
and neither is data. On what basis, then, is software patentable subject
matter? We would welcome a discussion on this topic, as it is a key issue to
the developer community. Note that Groklaw has published a number of
articles on this topic, which can be found at
http://groklawstatic.ibiblio.org/staticpages/index.php%3fpage=Patents2
A particular point of interest is how the meaning of data influences the
patentable subject matter analysis. Computers manipulate bits, and bits are
electronic symbols which are used to convey meaning. In some patents, like
in Diehr's industrial process for curing rubber, what this meaning signifies
s actually claimed clearly. But in most pure software patents the meaning
is merely referred to. Should this distinction influence whether the claim
is patentable?
(Could the conclusion in the previous paragraph be made to hit harder? What
does it mean, "the meaning is merely referred to"? Sorry to say, this
may or
may not be something which hits a specialist square between the eyes, but
to a lay person it comes across as weak. If it would not hit a specialist
square between the eyes, it should)
Suggested topic 2:
Are software patents helping or hurting the US innovation and hence the
economy?
It would be useful to hear from entrepreneurs on a wide scale on the effects
software patents are having on their startups or business projects.
Microsoft's Bill Gates himself has stated that if software patents had been
allowed when he was starting his business, he would have been blocked.1a Is
that happening to today's entrepreneurs? If software authors are unable to
clear all rights to their own products because there is no practical way to
do so, how can that foster progress and innovation?
("that" has no clear and obvious antecedent. Suggest something else,
such as
"how can such a situation foster ...")
Rather it seems to force
developer,
developer -> developers
or the companies that hire them, to choose between developing
(to choose either to go ahead and develop)
innovative products with the certainty that if it
(pronoun disagreement: products, it Suggest to replace "if it is" with
"if those products are")
is successful, there will
be infringement lawsuits, or stop developing.
(or to stop developing innovative products altogether)
Every firm with an internal IT department writes software. Every firm which
maintains it own website writes software. There are roughly 634,000 firms in
the United States with 20 or more employees. While not all of these
(insert "larger")
firms
produce software, many of the 1.7 million firms with 5 to 19 employees do.
In an ideal world, all firms should verify all patents as they are issued to
avoid infringement. This is a constant on-going activity because corporate
software must frequently be adapted to new needs and all new versions may
potentially infringe a patent. A study has concluded the task is
mathematically impossible to accomplish.2a
Even if a patent lawyer only needed to look at a patent for 10 minutes, on
average, to determine whether any part of a particular firm's software
infringed it, it would require roughly 2 million patent attorneys, working
full-time, to compare every firm's products with every patent issued in a
given year.
This is a mathematical impossibility because there are only roughly 40,000
registered patent attorneys and patent agents in the US.
This estimation covers just the work of keeping up with the newly issued
patents every year. Checking already issued patents would require more
attorneys.
This result follows from simple arithmetic. Suppose we assume that 40,000
patents are issued per year, 600,000 firms actively write software,
resulting in approximately 2000 billable hours per attorney per year. Then
the math is straightforward: 40,000 patents*600,000 firms*(10 minutes per
patent-firm pair)/(2000*60 minutes per attorney)=2 million attorneys.
Compare lines of code with sentences in a book. Each English sentence
expresses an idea. Each combination of sentences expresses a more complex
idea. Then more and more complex ideas are expressed into paragraphs,
chapters etc. The total number of ideas from all works of authorship is
extremely large. Imagine an hypothetical intellectual property regime where
all such ideas are patentable. This would generate a large number of
patents. All authors must check all patents for potential infringement. It
simply is not possible to do so.
It is impossible to promote innovation with a system where the authors of
software have no way to verify they own all rights to their own work. Such a
system is guaranteed to harm the economy with monopolistic rent-seeking and
unneeded litigation.
Suggested topic 3:
How can software developers help the USPTO understand how computers actually
work, so issued patents match technical realities, avoiding patents on
functions that are obvious to those skilled in the art, as well as avoiding
duplication of prior art?
The current interpretation of patent law is plagued with what developers
view as erroneous conceptions of how computers work. Other than the current
USPTO request for input, developers feel shut out of decisions, and yet they
are the very ones who understand what software is and how it does what it
does.
Textbooks describe in detail what mathematical algorithms are, but no one
seems to understand or to reference these sources.
(but the legal and judicial system which deals with patents does not
understand or reference these sources. Reason for suggested change: "no
one"
logically includes those of us who obviously *do* understand!)
Instead, we see courts
using standard dictionaries, and the result is confusion about what
algorithms are. An unrealistic distinction between so-called mathematical
algorithms and those that purportedly are not mathematical has been the
result. Since this impacts the controversy of when a computer-implemented
invention is directed to a patent-ineligible abstract idea, it's a serious
omission.
Second, it seems some, including some courts, believe the functions of
software are performed through the physical properties of electrical
circuits, incorrectly treating the computer as a device which operates
solely through the laws of physics. This approach is factually and
technically incorrect because not everything in software functions through
the laws of physics. Bits are symbols, and they have meanings. The meaning
of bits is essential to performing the functions of software. The capability
of bits to convey meaning is not a physical property of the computer.
Software developers don't write software by working with the physical
properties of circuits. Developers define the meaning of data and implement
operations of arithmetic and logic that apply to the meaning. They debug
software by reading the meaning of the data stored in the computer and
verifying whether the correct operations are performed. The aspects of
software related to meaning cannot be explained solely in terms of the
physical properties of the computer.
This erroneous physical view of the computer is the basis of an oft-stated
argument. Some claim that software alters the computer it runs on. This is
used to justify the view that software patents are actually a subcategory of
hardware patents. But to demonstrate what is wrong with that argument, let's
compare a printing press with a computer.
It is easy to see that the contents of a book is not a machine part.
(subject and verb disagreement: "contents ... is" should probably be
replaced
by "content ... is")
The
meaning of a book is not explained by the laws of physics applicable to a
printing press. But the comparison with a computer shows that there is no
material difference in their handling of meaning. Any argument applicable to
a printing press is applicable to a computer and vice-versa.
Imagine a claim on a printing press configured to print a specific book, say
Tolkien's Lord of the Ring.
(Lord of the Rings, isn't it?)
This is a claim on a machine which operates
according to the laws of physics. Printing is a physical process for laying
ink on paper. It functions without the intervention of a human mind. But
still this process involves the meaning of a book. The claim is infringed
only if the book has the recited meaning.
(what is meant by the last two sentences above is extremely murky. Especially
the second one. What *does* this intend to say?)
We may argue that a configured printing press is physically different from
an unconfigured one. The configured printing press can print a book while
the unconfigured one cannot. Books with different contents are different
articles of manufacture. Differently configured printing presses perform
different functions because they make different articles of manufacture.
Therefore, as this hypothetical argument goes, a printing press configured
to print a specific book is a specific machine which performs a specific
practical and useful task.
Software patents are often written similarly to this analogy. Like a
printing press, the computer operates according to the laws of physics. It
functions mostly without the intervention of the human mind, although from
time to time human input may be required. But the process of computing needs
the meaning of the data to actually solve problems. The claim is infringed
only if the data has the recited meaning.
(Again. I get the general idea of holding up to ridicule a patent on a
printing press which is a "new machine" because it is set up to print
a
particular book. It is a very good analogy and certainly skewers the "new
machine" doctrine. But in connection with this, what *does* the last
sentence
mean to imply, anyway? Something needs to be said differently, it seems to me).
The standard argument that a programmed computer is different from an
unprogrammed one is exactly symmetric to the one we have just made about
printing presses. There is a reason for this. The technologies are not that
different. A computer connected to a printer can be configured to print a
(How about: "Further to underscore the similarity, a computer connected
...")
book. Also modern printing presses may be controlled by embedded computers.
There is no material difference between a configured printing press and a
programmed computer in their handling of meaning. Users of a computer read
the meaning of outputs. They also enter the inputs based on the meaning.
When programming a computer, programmers must define the meaning of data.
They implement algorithms which perform operations of arithmetic and logic
on the meaning of this data. When debugging, programmers must inspect the
internals of the computer to determine whether the correct operations are
being performed. This requires reading the contents of computer memory and
verifying it has the expected meaning. In other words, the act of making the
invention depends on defining and reading the data stored in the computer.
(What "invention"? Is there one?)
Software works only if the data has the correct meaning.
The output of a printing process is a book. Different books are
distinguished by their contents. A typographer must define and verify the
contents of the information to be printed to configure the printing press
correctly. In other words, the act of making the invention depends on
defining and reading the data stored in the printing press. A printing press
works precisely because it prints the right contents. Printing makes a
physical book which can be read and sold. Books with different contents are
different books. A wrongly configured printing press prints the wrong book.
Therefore the utility of the printing press doesn't depend just on the laws
of physics. It also depends on the contents of the book.
Both machines work in part according to the laws of physics and in part
through operations of meaning.
The courts have failed to acknowledge the role of meaning in software. Some
errors result from the failure to take into consideration the descriptions
of what is a mathematical algorithm in mathematical literature. Other errors
result from explicitly and incorrectly denying the role of symbols and
meaning in computers. And more errors result from the belief that computers
operate solely through the physical properties of electrical circuits.
Imagine now that every time a printing press prints a new book, you could
patent that printing press as a new machine because it printed a new book.
That is exactly what patent law does with software, purporting to create a
new machine because new software running on the computer supposedly creates
a new machine. And yet the computer, like a printing press, can run any
(Delete ", like a printing press," above. It makes the sentence say
that the
printing press "can run any software at all" which is obviously not
meant.)
software at all that you can devise, just as a printing press can print any
book you write.
No one would allow a patent on a previously existing printing press just
because it is now configured to print a new novel. Yet that is exactly what
is allowed with software.
The consequence is a proliferation of patents on the expressions of ideas.
Suggested topic 4:
What is an abstract idea in software and how do expressions of ideas differ
from applications of ideas?
Abstract is not synonymous with vague or overly broad. A mathematical
algorithm is narrowly defined with great precision, but still it is
abstract.
Abstract is not the opposite of useful. The ordinary procedure for carrying
an addition is a mathematical algorithm. It has a lot of practical uses in
accounting, engineering and other disciplines. But still it is abstract. In
particular it is designed to handle numbers arbitrarily large no matter
whether we have the practical means of writing down all the digits. Besides,
there are useful abstract ideas outside of mathematics. For example the
contents of a reference manual such as a dictionary is both abstract and
useful.
(subject-verb disagreement: "contents ... is" suggest is -> are)
Mathematics is abstract in part because it studies infinite structures. For
example, the series of natural numbers 0, 1, 2, ... cannot exist in the
concrete universe, because it is infinite. Also, symbols in a mathematical
sense are abstract entities distinct from the marks on paper or their
electronic equivalent. For example, there are infinitely many decimals of pi
even though there is no practical way to write them down. Infinity
guarantees that mathematics is abstract. Therefore a definition of
"abstract
ideas" must acknowledge the abstractness of mathematics.
A proper understanding of the role of meaning is key to understanding when a
claim is directed to a patent-ineligible abstract idea in software. Software
patents don't claim abstract ideas directly. They claim them indirectly
through the use of a physical device to represent them by means of bits. It
would be easier to recognize claims on patent-ineligible abstract ideas if
it were understood they take the form of claims on expressions of ideas as
opposed to applications of ideas. The bits are symbols and the computation
is a manipulation of the symbols. Expressions of ideas occur through this
use of symbols.
This suggests a test similar to the printed matter doctrine. This test is
best described using the concepts and vocabulary of a social science called
semiotics. This science studies signs, entities which are used to stand for
something else.
Computers should be recognized to be what semioticians call sign-vehicles,
physical devices which are used to represent signs. The sign itself is an
abstraction represented by the sign-vehicle. Hence, sign-vehicles and signs
are distinct entities.
In semiotics the triadic notion of a sign distinguishes between two types of
meaning. There is the actual worldly thing denoted by the sign. This is
called the referent. And there is the idea of that thing a human being would
derive from reading the sign. This is called an interpretant. A sign usually
conveys both types of meanings simultaneously. An example might be a
painting representing a pipe. The painting itself is a sign-vehicle. People
seeing this painting will think of a pipe. This thought is an interpretant.
An actual pipe is a referent.
(The paragraph above refers to a "triadic notion of a sign" and then
refers to
"two types of meaning" and unclarity is the consequence. Perhaps the
paragraph
ought to start with
"In semiotics a sign has three parts. There is the sign-vehicle already
mentioned, and in addition to that there are two types of
meaning. The three parts taken together are referred to as a "triadic
sign."
As to the two meanings, there is the actual worldly thing ..." the rest of
the
paragraph can then stand, as the necessary background has been provided)
If nothing has been invented but thoughts in the mind of human beings, we
should not be able to claim a sign-vehicle expressing these ideas as if they
were applications of the ideas.
(grammatical unclarity in the above sentence: what exactly is the antecedent
of "they"? And if this unclarity is not alleviated the meaning suffers
badly)
But when the real thing denoted by the
expression is claimed, we may have a patentable invention. For example a
mathematical calculation for curing rubber standing alone is not patentable
under this test. It is just numbers letting a human think about how rubber
should be cured. But when the actual rubber is cured the referent is recited
and the overall process taken as a whole may be patentable. These ideas lead
to this test.
("These ideas lead to this test." What ideas lead to what test?)
A claim is directed to a patent-ineligible abstract idea when there is no
nonobvious advances
(subject-verb disagreement: "there is no advances" Should be
"there are"?)
over the prior art outside of the interpretants. A claim
is written to an application of the idea when the referent is claimed
instead of merely referred to.
This test is technology-neutral.
(What test? No test has been explicitly stated. Most particularly, is it a test
which is already part of the relevant legal doctrine, or is it a new test
which is being proposed?)
It is applicable precisely when the claimed
invention is a sign, or when it is a machine or process for making a sign.
It applies whether the invention is software, hardware or some yet to be
invented technology. This test works without having to define the boundary
between what is software and what isn't.
The concepts of semiotics are quite simple and easy to define. They are
related to the dichotomy between ideas and expression of ideas in copyright
law. Therefore this test for abstract ideas helps clarify the line between
what should be protected with copyrights and what belongs to patent law. The
expressions of interpretants may be protected by copyrights and the
corresponding referents may be protected by patents.
This test will correctly identify abstract mathematical ideas. Mathematics
is, among other things, a written language. It has a syntax and a meaning
which are defined in textbooks on topics such as mathematical logic.
Algorithms in the mathematical sense are features of this language. They are
procedures for manipulating symbols. They solve problems because they
implement operations of arithmetic and logic on the meaning of the symbols.
Algorithms are also procedures which are suitable for machine
implementation. Computer programs may solve a problem only if it is amenable
to an algorithmic solution. In this sense, all software executes a
mathematical algorithm.
Mathematical language refers to abstract mathematical entities such as
numbers, geometric shapes, etc. We assimilate this abstract meaning with
interpretants. Mathematical language may also be used to describe things in
the concrete world, for instance using laws of physics. The corresponding
referents are applications of mathematics. Mathematical algorithms and other
types of mathematical subject matter are a subcategory of interpretants. And
things in the concrete world modeled using mathematical language are a
subcategory of referents. Hence the proposed test will properly distinguish
between the expression of a mathematical idea from an application of the
same idea. Claims of applications are accepted while claims on expressions
are rejected.
Groklaw has published this document here, along with a more detailed
explanation, with references, on why we believe these four topics could be
fruitful topics for discussion.
[ Reply to This | Parent | # ]
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| Authored by: PJ on Monday, March 11 2013 @ 06:44 PM EDT |
| We're working on it. [ Reply to This | Parent | # ]
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