Jeff Steck: Saving the Supreme Court from Folk Science

PatentlyO2006020Based on the briefs filed in the Microsoft v. AT&T case, the Supreme Court faces a substantial risk of establishing logically indefensible precedent relating to computer software. The status of software in patent law is a fair subject of debate, but such policy decisions should not be based on folk science.

In the briefs now before the Court, software-and information generally-is characterized as an ethereal construct, barely capable of being controlled or understood. In its amicus brief, Autodesk calls information "meta-physical." The Software & Information Industry Association describes information as "purely intangible." According to Microsoft, information is "abstract," and is "floating in the ether." Information has been so denigrated that AT&T, who holds the patent on the software method relevant to the case, claims that "software is not 'information.'" 

Colloquially speaking, information is hardly a new concept. Perhaps this is why the briefs assume it is reasonable to use a dichotomy pulled from Aristotelian philosophy: optical disk as "substance" versus computer program as "accident." But like physics, chemistry, and other topics of interest to the ancients, information has become a science, and it should be discussed as a science.

One prerequisite of science is the ability to isolate an object of study from the complicating influence of the environment. The first quantitative understanding of physics came only after natural philosophers turned their attention to the unimpeded motions of planets and pendulums, and the modern era of chemistry, it is argued, began when a French lawyer isolated the process of combustion. In biology, evolution was discovered only after the study of an isolated island ecosystem. Just as physics, chemistry, and biology were once "proto-sciences," so too was it difficult until recent decades to speak of a science of information. Information had always been bound up with books and thoughts, where its quantitative study would have been unimaginable. Digital computers, though, have given us both the ability and the motivation to study information in a nearly isolated form.

AT&T's denial that software is information is strange, and even disappointing, because it was at AT&T's own Bell Labs that the scientific study of information originated. See Wiki. In the intervening half-century, the physical properties of information have been studied thoroughly. Lawyers and the courts cannot be expected to understand this young science in detail, but they should not assume that there is nothing to understand.

One of the most profound results of the scientific study of information is that information, like other physical phenomena, is governed by the laws of thermodynamics. In particular, information has the properties of the thermodynamic quantity known as "entropy." See Wiki. These physical laws impose real limitations on the storage and manipulation of information, without regard to whether the information is embodied in magnetic dots, microscopic pits, punched cards, or even radio waves. Many of these laws and limitations are summarized in Michael P. Frank, "The Physical Limits of Computation," Computing in Science & Engineering (May/June 2002) at 16-26, available here.

The science of information need not be studied in depth to appreciate how uninformed many of the arguments to the Supreme Court have been. A comparison between computer software and "design information" (such as CAD/CAM codes, blueprints, instructions, or recipes) is repeated among the briefs. The desired inference, spelled out by amicus Amazon, is that there is "no scientific basis" for distinguishing between them. This inference, though, is incorrect. In the study of information, as in thermodynamics, there is a fundamental distinction between actions that are "reversible" and actions that are "irreversible." An irreversible process is one in which information is lost. For example, overwriting data in memory, as is done continually in a computer system, is not reversible. Copying a computer program from a master disk onto a blank portion of a hard drive, though, is reversible: even if the master disk is lost, its information can be restored using the information from the hard drive, and the hard drive can be restored to its original blank state.  

Contrary to Amazon's arguments, then, computer software can be scientifically distinguished from design information, because using design information to produce a product is irreversible. A manufactured product cannot be changed back into CAD/CAM codes and raw materials. A computer with Windows installed, though, can be changed back into a computer with a blank disk and an uninstalled copy of Windows. 

The amicus law professors have argued that compressed or encrypted information is "useless gibberish." Again, the science of information provides a helpful insight: compressing and encrypting data are both reversible processes. No relevant information is lost, since the data can be decompressed and decrypted to its original form.

Microsoft provides a nearly Biblical description of its Windows software as "abstract information" that "lacks physical existence" but to which Microsoft has "given a physical manifestation" as a "golden master." See John 1:14 ("And the Word was made flesh... and we beheld his glory."). How the first manifestation of Windows was pulled from the ether, though, is irrelevant. The issue before the Court relates only to what happened after Windows was originally compiled, and it is clear that any copies made thereafter were the mundane result of a reversible copying process.  

Thus, the distinction in Federal Circuit case law between software, which can be a "component," and design information, which cannot, is a valid distinction. It can be seen as a question of whether supplying the alleged component is reversible: information is a component if and only if it can be added and removed in a substantially reversible way. This parallels our understanding of mechanical components: most parts can be both added to and removed from a mechanical device. Of course, gray areas would remain (compiling source code into object code, for example, is not entirely reversible), but they remain in other technologies as well.

Information has other properties that allow it to be easily understood as a "component." Like mechanical components, information can be traced to its source (to determine who is liable), and it can be counted (to measure damages). Indeed, information can be far easier to trace to its source than anything made of molecules. A U.S. manufacturer could deny that it exported any physical part of an accused product: a connector made overseas may look exactly like one made domestically. Microsoft, though, could hardly deny that it was the original source of the Windows program: the probability that someone would arrange so many megabytes of information the same way as Microsoft, without copying, are astronomically small.

Normally, a single copy of a program is provided on each disk or on each computer. This makes it easy to count the instances and the location of a software "component" to determine damages: the number that are made in the United States, the number that are exported, and the number that are made abroad. Even in other, more complicated scenarios, information theory provides ways of characterizing the number of copies that exist (using, for example, measures of "redundancy" or of "mutual information").

Without proper guidance, the Supreme Court is likely to perpetuate proto-scientific characterizations of software. Information, such as the information used to store and transmit software, has well-understood physical properties. Because of those properties, software can be logically and consistently treated as a "component" under the patent laws. Whether those properties imply that software merits patent protection is open to debate, but neither side in that debate should disregard the scientific understanding of information in the hope of a victory based on ignorance.

Note: Jeff Steck is a patent litigator at McDonnell Boehnen Hulbert & Berghoff in Chicago.  He studied physics at the University of Chicago.

23 thoughts on “Jeff Steck: Saving the Supreme Court from Folk Science

  1. MaxDrei, it’s now May, so I’m a little bit late in putting up a response but, as I’ve only just seen your comment…
    Of course I’ve read Macrossan and, just FYI, I’m up in Scotland (I did my LL.M. at Strathclyde). To clarify, I think Intel should have received the patent but current EU/UK legislation was always going to make that a questionable call. I’m absolutely *not* castigating anyone here or, God forbid, even suggesting that the UK adopt a US approach to the awarding of software patents.

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  2. Has Robin Paterson read how the English Court of Appeal (Aerotel/Macrossan)interprets the statutory prohibition on patenting computer programs as such, in Europe today. That might be why Intel’s claim got refused, and why it is unfair to castigate the English Court of Appeal for not ruling in line with US patent law. Had Intel’s claim delivered more than just “a program to write better programs” Intel might have got it allowed.

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  3. Malcolm,
    So why can’t I patent a piece of paper with non-obvious instructions written on it?

    Because it doesn’t do anything.

    A software invention provides a means to accomplish something _on a computer_. In the UK last year for example, Intel were denied a patent on an optimisation they had. The optimisation would affect code compiled with their compiler. This makes their compiler produce more efficient code than a competitor’s compiler. It’s a better mousetrap so, I feel, it should have received the patent.
    Now, this invention applies to a particular piece of software, a compiler, on another piece of software, an operating system. It’s not an abstract concept, it’s an invention of a type useful in the domain of software.

    How does one write a compiler? You use a programming language. As you’ve said, I can either type all the instructions in myself, or, write them on a piece of paper and hope that the software I use to read that piece of paper is good enough to understand my scribbles. Incidentally, part of my background is OOA/RD and txUML, so I advocate the use of drawing boxes and then using a model compiler (as opposed to a code compiler) to produce the final executable file. This also fits your argument in that I should be able to model a system – draw boxes and lines – and have a computer read this model and produce code from it. However, what we’ve just described is analogous to drawing a blueprint for a mechanical design. You can’t patent the design itself(*), but you can patent the the invention it describes.

    (*) yes, this is a bit of a simplification.

    This is going a bit off topic too…

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  4. Eric,
    On the topic of software, as I previously stated, the concept of software components is nothing new – they’ve been about for decades. I’ll go along with your analogy, but there’s no way any component would have anything like a million funtions – that would defeat the entire purpose of a component. 200 functions would be a lot for a software component – unless, of course, somebody wants to argue about the granularity of software components.
    A second argument could then be the number of deployed components on MS platforms and other platforms. Windows is popular, but it’s not the only platform out there.

    And as for the patentability of software, I absolutely agree. You should be able to patent software. How we do this is the next challenge though.

    We’ve probably got similar viewpoints here, just different perspectives.

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  5. A molecule in the software world is known as a function and a software component can contain thousands or even millions of functions, so it should be patantable. A software component has inputs, outputs and processes which act on those. It is more than a book or pamphlet because it ‘executes’ or ‘runs’.

    Software requires a computer to run it. And since it’s 2007, computers can read. They can read writing on a piece of paper, in English.

    So what’s the difference between instructions for a computer written in ones and zeros and instructions for a computer written in ink, in plain English? They are both written in atoms. They are both information. Computers can read both of them and incorporate the information and operate differently in light of the information.

    So why can’t I patent a piece of paper with non-obvious instructions written on it?

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  6. The Supreme Court: Saving the Supreme Court from Folk Patent Attorneys

    Based on commentary from many patent attorneys on the Microsoft v. AT&T case and KSR v. Teleflex case, the patent bar and the Federal Circuit faces a substantial risk of losing the existing logically indefensible precedent relating to computer software. The status of software in patent law is a fair subject of debate, but such policy decisions should not be based on patent folk who think “Posner & Landis” must be some law firm somewhere.

    In the briefs now before the Court, the existing standards for patenting software (and non-obviousness for software patents) is characterized as a bright-line construct, and any other test would end the world and be barely capable of being controlled or understood. On the blog “patently-o,” patent lawyer extraordinare doesn’t call the obviousness test “meta-physical.” The Software & Information Industry Association describes information as “purely intangible.” According to Microsoft, information is “abstract,” and is “floating in the ether,” although one unnamed source suggests that this description was actually meant to apply to the Federal Circuit’s written description jurisprudence. Information has been so denigrated that AT&T, who holds the patent on the software method relevant to the case, claims that “software is not ‘information.’,” and to the extent it is, it is information the Federal Circuit can and should ignore.

    Colloquially speaking, ignoring key information is hardly a new concept to the Federal Circuit. Perhaps this is why the briefs assume it is reasonable ramble on about a dichotomy pulled from Aristotelian philosophy: optical disk as “substance” versus (at least AT&T’s) computer program as “accident.” But like physics, chemistry, astrology, building giant catapults to overcome siege walls, shunning lepers, and other topics of interest to the ancients, not information, but the art of making information proprietary, has become a science, and it should be discussed as a science.

    One prerequisite of science is the ability to isolate an object of study from the complicating influence of the environment at the lowest possible cost, monetize it, and charge others the highest price they will accept for it. The first quantitative understanding of physics came only after natural philosophers turned their attention to the unimpeded motions of planets and pendulums in order to impress women and/or their royal benefactors who needed to see neat demonstrations in order for the natural philosophers to keep their place in court, and the modern era of chemistry, it is argued, began when a French lawyer isolated the process of combustion in order to distract the judge from pesky “information.” In biology, evolution was discovered only after the study of an isolated island ecosystem that, stunningly, had not yet been subject to mandatory WIPO intellectual property rules. Just as physics, chemistry, and biology were once “proto-sciences,” so too was it difficult until recent decades to speak of a science of making all useful information into private property, hence blocking any meaningful competition with the reformed AT&T telecommunications monopoly. Information had always been bound up with books and thoughts, instead of intellectual property in its own right, whereby its free distribution and discussion in the public as a topic of study would have been unimaginable. Digital computers and the patent bar, though, have given us both the ability and the motivation to capture information in a nearly isolated form, block others from using it, and charge the public the most they can bear.

    AT&T’s denial that software is information is strange, and even disappointing, because it was at AT&T’s own Bell Labs that the scientific study of informational communication originated. (Yes, AT&T was studying information communication theory – how to compress data, how to transmit data,etc). In the intervening half-century, the physics of information theory have been studied thoroughly. Lawyers and the courts cannot be expected to understand this young science in detail, since the very word “Nyquist” makes us lawyer-types glaze over and start rocking in our chairs, but they should not assume that there is nothing to understand when there are profits involved!

    The science of information need not be studied in depth in order to profit by paying more attorneys to explain how uninformed many of the arguments to the Supreme Court have been. A comparison between computer software and “design information” (such as CAD/CAM codes, blueprints, instructions, or recipes) is repeated among the briefs. The desired inference, spelled out by amicus Amazon, is that there is “no scientific basis” for distinguishing between them. This inference, though, can be misinterpreted by patent law blogs to sound like its incorrect. In the study of information, as in thermodynamics (which is really the same thing), there is a fundamental distinction between actions that are “reversible” (where information is not lost) and actions that are “irreversible” (where information is lost.) For example, overwriting data in memory, as is done continually in a computer system, is not easily reversible, so lets pretend its irreversible. A real “irreversible” process is like a “hash function,” and no-one is arguing that “hash functions” are patentabl…. oh wait, never mind, this entire line of argument is wrong. Pretend the original contributor never made this argument about misapplying reversability as a basis for patentability.

    Copying a computer program from a master disk onto a blank portion of a hard drive, though, is reversible: even if the master disk is lost, a copy of its information can be restored using the information from the hard drive, and the hard drive can be restored to its original blank state. I will very carefully and obnoxiously ignore the proceeding step of compilation of the software on that master disk, which is irreversible and loses information. So between the source code, compilation, and the compiled code, which is patentable under this “reversability” rule? It makes my head hurt, and I’m a patent attorney myself.

    Contrary to Amazon’s arguments, then, computer software can be artifically scientifically distinguished from design information, because using design information to produce a product is irreversible in the fantasy-land of what the contributor wants patent law to become. A manufactured product cannot be changed back into CAD/CAM codes and raw materials. A computer with Windows installed, though, can be changed back into a computer with a blank disk and an uninstalled copy of Windows, although don’t tell that to Microsoft Licensing, or their heads will explode.

    The amicus law professors have argued that compressed or encrypted information is “useless gibberish.” Again, the science of information provides a helpful insight: compressing and encrypting data are both reversible processes — except for processes like MPEG, JPEG, and the like, but since they’re not patentabl… oh wait, damn. No relevant information is lost, since the data can be decompressed and decrypted to something kind-of-like a lossy version of its original form.

    Microsoft provides a nearly Biblical description of its Windows software as “abstract information” that “lacks physical existence” but to which Microsoft has “given a physical manifestation” as a “golden master.” (I wonder whether this admission would be interesting to the copyright office, which has issued some pretty valuable copyright registrations for Microsoft software even when not “fixed” on a golden master.) How the first manifestation of Windows was pulled from the ether, though, is irrelevant. The issue before the Court relates only to what happened after Windows was originally compiled, and IT IS CLEAR that any copies made thereafter were the mundane result of a reversible copying process. (Beware the IT IS CLEAR language!)

    Thus, the distinction in Federal Circuit case law between software, which can be a “component,” and design information, which cannot, is an arbitrary, unworkable distinction. It can be seen as a question of whether supplying the alleged component is reversible: information is a component if and only if it can be added and removed in a substantially reversible way. This parallels our understanding of mechanical components: most parts can be both added to and removed from a mechanical device. Of course, gray areas would remain (compiling source code into object code, for example, is not entirely reversible), but they remain in other technologies as well. And non-reversible functions suck anyway… who uses MP3?

    Information has other properties that allow it to be easily understood as a “component.” Like mechanical components, we can pretend to track information to its source (to determine who is by following it back to whoever has the most money) and it can be counted (but only in a way to artificially inflate the measure damages). Indeed, information can be far easier to trace to its source than anything made of molecules. A U.S. manufacturer could deny that it exported any physical part of an accused product: a connector made overseas may look exactly like one made domestically, and no-one uses part numbers or product trademarks anymore. Microsoft, though, could hardly deny that it was the original source of the Windows program: the probability that someone would arrange so many megabytes of information the same way as Microsoft, without copying, are astronomically small. This is called a false syllogism, and is very popular in Federal Circuit claim construction decisions.

    Normally, a single copy of a program is provided on each disk or on each computer, but Microsoft has mastered the multi-license strategy of requiring upgrade licenses, OEM licenses, and the like, so it is entirely possible one copy of the software has been paid for multiple times, as well as many copies of the software never paid for. This makes it easy to count the instances and the location of a software “component” to determine damages, and to hold Microsoft liable as well for the millions of pirated versions of the software it didn’t get money for as well, since infringement is non-intentional and Microsoft knew of the copying by third parties for years: the number that are made in the United States, the number that are exported, the number pirated, and the number that are made abroad. Even in other, more complicated scenarios, information theory provides ways of characterizing the number of copies that exist (using, for example, measures of “redundancy” or of “mutual information”). I won’t tell you those, though, because of my current patent application on that technique, which I will license to only favored patent law firms who do not parody my work. If you think that my patenting this technique is unfair, too bad. Its reversible, though, so there…

    Without proper pressure, the Supreme Court is likely to perpetuate actual scientific and economically rational characterizations of software, and this must be stopped by the patent bar at all costs. Information, such as the information used to store and transmit software, has well-understood physical properties. Because of those properties, software can be logically and consistently treated as a “component” under the patent laws if you stretch the meaning of the terms “logically” and “consistently”. Whether those properties imply that software merits patent protection is open to debate, but this article does its best to disregard the scientific understanding of information in the hope of a victory based on ignorance.

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  7. “using design information to produce a product is irreversible.”

    Try telling that to anyone who has ever had their product reverse engineered. The Russians learned how to build modern aircraft by ripping apart B-29 that fell into their hands and then building copies.

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  8. Microsoft, finding it fit to use the word “ether” in its brief, the word having had a joking run of play by NASA engineers back in the 50′s, seems to playing the flat-earth society card when asserting that an abstract sequence of instructions is not a component because it cannot be combined.

    First of all, have we not evolved enough as a scientific community to finally abandon all use of the word “ether” from appearances in serious writing from here forward?

    As for the analysis of an abstract sequence – utter hogwash in my opinion. A telephone number can be considered an abstract sequence under this definition, yet under the “combinable” standard Microsoft is having us believe that a telephone number stored in a data structure could not be combined with anything else to do anything useful?! Further, AT&T probably used the term “arbitrary” sequence when defining what instructions are – which completely deflates Microsoft’s argument.

    The fallacial leap in logic is where Microsoft describes that “until the instruction is read and executed” does anything useful happen. As if the “read and execute” part does not require any combination of the instruction itself and the processor components such as the instruction loader and micrologic.

    Er, I mean, UGH.

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  9. Its all gobbledygook to me; I’m just a simple cave man.

    But I do know one thing. The judges on the Supreme Court bench should try out that Sputnik-era-like scientific training that has been spoken of in this thread. Especially in view of the woefully out-of-touch questions/comments and shoddy treatment of the CAFC doled out by them in the KSR hearing.

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  10. Robin,

    Of course software components are not limited to Windows. But they are perhaps the biggest example of them. Importantly, software components also exist at law too – if Microsoft’s licences are to be believed. Take for exampe Windows XP’s licence available at Microsoft’s site at link to microsoft.com:

    “The Software contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Microsoft may automatically check the version of the Software and/or its components that you are utilizing and may provide upgrades or fixes to the Software that will be automatically downloaded to your Workstation Computer.”

    One can’t patent electrons, or atoms, which in the software world is a group of electrons/non-electrons composing a machine instruction. A molecule in the software world is known as a function and a software component can contain thousands or even millions of functions, so it should be patantable. A software component has inputs, outputs and processes which act on those. It is more than a book or pamphlet because it ‘executes’ or ‘runs’. And Microsoft’s licence indicates software components can be transferred, installed, uninstalled and upgraded.

    I think Microsoft’s End User Licence Agreement mentions these components some 23 times. Therefore it’s undeniable that they do exist! That was my only point, and I think, the point of Steck’s blast at ‘folk science’.

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  11. I totally agree with Paul Morgan’s post. The Supreme Court will decide the 271(f) issue because it has profound policy implications for outsourcing of computer software design, among other things. One way to phrase the 271(f) question is to ask if there is any difference between (1) designing a chip in the USA and sending the CAD/CAM tape overseas to make and sell the chips, and (2) designing software in the USA and sending the gold master overseas to make and sell the software. Other than that, the Supreme Court is unlikely to get into this abstract debate.

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  12. This whole thread is off on an irrelevant philisophical tangent. The only legal issue before the Court is what did Congress say and intend in writing 35 USC 271(f). Specifically, if Congress could have ever intended that millions of copies made (and combined with other components) entirely OUTSIDE of the U.S. of a single exported “component” would constitute millions of U.S.[instead of foreign]patent infringements.

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  13. In Microsoft v. AT&T, the issue is not Folk Science. The issue is community knowledge. Prof. Norbert Weiner, the genius who created cybernetics, wrote about knowledge within a community even amongst people who had no direct or apparently indirect coaching. Prof. Weiner may have been suggesting information enters into society in a subtle form, perhaps we might describe information as “floating in the ether”.

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  14. I second Anonymous’ post with this addition: you cannot compare the “reversibility of harddrive state to that of the reversibility of information.” A blank harddrive will never have the same physical characteristics after a write/delete as it did when it was “virgin.” This is the reason forensic computer specialists are able to recover data from a harddrive even up to as many as 13 passes (what those at the NSA are said to be able to do). So if this is your argument, then “reversibility” in this sense cannot be understood to be “precisely” the same defeating most of what I think your argument was.

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  15. You seem to be confusing the thermodynamic meaning of “reversible” with the colloquial. If you’re going to invoke “science” to buttress your arguments, you have to stick to it.

    Your examples (writing to a hard drive, encrypting) are not reversible (thermodynamic / informational) processes on any modern computer that I am aware of. You can “erase” (a separate concept from reversing) the copy of Windows, but there is no way (that I know of) to reverse the writing process so that the disk is in it’s original state. What if, before you loaded Windows, the disk had been storing my original manuscript (of which no other copies exist)? Can you reverse the installation and get my manuscript back? Not that I am aware of.

    Similarly, encryption is such a useful tool because it it not reversible. Given the encrypted data (even on the same machine that encrypted it) you cannot “unwind” the encryption process to get the original data.

    In both of these cases, to get back to the “original” state (even where original is being used in the colloquial sense) requires more than just the current state information — it requires additional outside information. For the hard drive, we must define what we want to define as a ‘blank’ hard drive (e.g., ’0000…’, ’1111…’, ’1010…’, my manuscript, etc.). For the encrypted file, we must provide the key (which is often different from the original key, by the way).

    Just because it is possible to “get back to where you started” in a practical sense doesn’t make it reversible in the informational science sense. Furthermore, neither process, implemented on any commercially available computer, is thermodynamically reversible.

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  16. Am I the only one at a total loss with what Jeff is arguing?I t’s probably true that some of the briefs try to muddy the water, but this certainly doesn’t clarify it.

    First, I think that the distinction between reversible and irreversible is not helpful in determining which elements are components and which are not. If I send iron ore and use it in a patented process abroad, does reversibility from the end product make a difference?

    Technically, there are other issues in the reversibility argument. For example, Jeff overstates the compression/encryption point. In and of itself, compressed or encrypted information is useless (without one more step). Just like a manufactured item can be turned back into a CAD drawing if you take one more step–create design schematics when you break it down. Also, fundamentally, I would say that some compression is reversible (if by reversible you mean you get back exactly what you started with), but that’s not always the case–mpeg is a good example. Anyone want to enlighten me what the real argument here is as it relates to the issue of components v. not?

    Second, from a computer science perspective, going from a design to code and vice-versa is a common practice (and a skill one learns). Indeed, most software patents are premised on this concept. Clean-room development and no-access reverse engineering are as well. True you may not end up with exactly the same code, but I’m not sure how that’s helpful in distinguishing a component from something that’s not.

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  17. It’s scary out there indeed. The tripe that’s being published by law school faculty is especially alarming. I know that lawyers (especailly judges and law professors) like to think they can break any legal issue down to a set of basic questions that they can evaulte without any detailed knowledge of the facts, or at least to a point where they can get reliable assistance from experts, but the increasingly glaring state of ignorance of even the most basic scientific concepts belies this assumption as fantasy.

    Given the current directions of scientific and engineering research (e.g., stem cells, information theory, nanotechnology) we need probably some sort of Sputnik-era effort to educate scientifically illiterate lawyers. Otherwise, we risk seeing trial-, appeallate-, and academic legal arguments based either on appeals to expert authority without any real evaluation or domination by those who can put on the best show. In either case, pseudoscience is more likely to dominate since it often appeals more to the Conventional Wisdom and looks more sexy than real science to the uneducated.

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  18. Eric,
    Muddying the waters further by bringing up more MS buzzwords, COM, does little to help the current topic. COM, the cynical may say, is another MS ploy in the Great Vendor Lock-in Saga. The concept of software components is hardly a new one – one could consider the static libraries of the 1970s as software components. COM is simply an extension (evolution?) of an existing idea.
    Oh, and just because something comes up on Google a lot doesn’t mean developers rely on it. COM is used by (not all) developers on Windows platforms. Unix variants (Solaris perhaps excepted) do not have COM, so I’d also be wary of your use of the word ‘heavily’.

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  19. Windows has a basic architecture called COM.
    COM stands for ‘Component Object Model’.
    You can read about it on Microsoft’s own website at link to microsoft.com
    To quote Microsoft’s intro:
    “Microsoft COM (Component Object Model) technology in the Microsoft Windows-family of Operating Systems enables software components to communicate. COM is used by developers to create re-usable software components, link components together to build applications, and take advantage of Windows services. The family of COM technologies includes COM+, Distributed COM (DCOM) and ActiveX┬« Controls.”

    “COM is used in applications such as the Microsoft Office Family of products. For example COM OLE technology allows Word documents to dynamically link to data in Excel spreadsheets and COM Automation allows users to build scripts in their applications to perform repetitive tasks or control one application from another.”

    So there you go, software components really do exist after all, despite what lawyers might say to the contrary. But do developers really rely on these software components? Yes, heavily. Google the words COM and Microsoft and you’ll get about 474,000,000 pages.

    Enjoy the wonderful world of software components!

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  20. I personally believe Microsoft’s argument is generally on the right track, but Microsoft urges the line to be drawn in the wrong place. Microsoft argues that physicality is required for a component under patent law. I think that is generally a sound view under patent law and as a matter of computer science. However, information takes on adequate physicality, (and importantly, its intrinsic value) upon its recordation in any data format, not just as a “golden master.” The golden master is just a recording medium, irrelevant to the intrinsic value of the software.

    I respectfully believe that to say information itself (without some form of attendant physicality) is subject to the laws of thermodynamics is an analytical stretch–nor do I think Landauer’s research stands for that. It is the effort to bring about a reversal of RECORDED information that caused Landauer to introduce the concept of entropy in discussing information. Thus Landauer’s principle is inextricably tied to the physical problems of the recording medium, and the efforts to modify that medium.

    Thus, in my view, whether software processes are reversible should not be the inquiry for determining a “component.” Rather, just recording the software in any data format should be enough; the intrinsic value of the software and whether that value is used or provided should be the focus of determining whether the software is a “component.”

    It will be interesting to see how this turns out. Thanks for providing the thought stimulation.

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  21. “Whether those properties imply that software merits patent protection is open to debate, but neither side in that debate should disregard the scientific understanding of information in the hope of a victory based on ignorance.”

    I don’t know about that. If the scientific understanding of X is averse to my position, then I am going to do my best to make a confusing cloud of doubt-enabling dust around the issue.

    Frankly, the discussion above does very little to clarify the issues for me. It seems to me to be a collection of arguments by analogy that aren’t terribly compelling.

    Here’s a question for the peanut gallery: if a claimed composition such as a kit can not be made patentable solely by virtue of novel non-obvious instructions (i.e., information) provided on a piece of paper included with the kit, then why should an otherwise unpatentable composition become patentable by virtue of software provided with the patent?

    And (perhaps more interesting): if an otherwise unpatentable composition becomes patentable by virtue of novel software instructions provided with it, then why can’t I patent a piece of paper with novel ideas written on it?

    These issues seem to me to be more germane to the subject of spftware patentability than whether something is “reversible” or not.

    Reply

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