Abandoning software patents?

Editorial by Ciarán O'Riordan, Exective Director of End Software Patents

Scope

On Monday, November 9th, the Supreme Court will hear the case of Bilski's business method patent. Being the first review of patentable subject matter since 1981, this decision could make the rules for decades to come. The court will review the 2008 ruling of the CAFC which created the "particular machine or transformation" test. This test, depending on who's reading it, could significantly narrow the scope for patenting software ideas.

The Supreme Court isn't obliged to rule on the patentability of software ideas. Bilski's patent is a business method patent, not a software patent. So why might the court make a broad ruling which would cover software? For people who are already aware of the legal arguments, I'd like to offer a review of the socio-economic arguments for abandoning software patents.

Practitioner profile

To see how different software is from most patentable fields, you just have to look at the practitioners. There is a small number of large companies with well known products, and there is a mass of small companies. The low cost of entry to software development means the number of small companies is particularly large, but we'll leave that aside to look at a bigger difference. In most patentable fields, this pyramid of big and small companies describes how products are made. If this were true for software, then the decision of patentability would be an economic decision, and some costs might have to be reduced, but there'd be no fundamental incompatibilty. But in software, this is only half the story.

In software, unlike in other patentable fields, there are two additional categories of developers. The first is the software developers that sit in the IT departments of every medium sized company. They're the folk that keep the emails flowing, who make internal software, extend software bought by the company, and who run the website. The second group is individuals, informal groups and communities who program for their own benefit or for social reasons such as providing alternatives to software seen as overly restrictive.

The existence of these two categories changes everything because it's obviously unreasonable to require them to work within the patent system, and it's unjustly restrictive. Not only are patent incentives obviously not necessary to motivate IT departments to fix problems, the timeline and budgets are orders of magnitude out of sync with the speed and costs of writing software. When a company manager reports a website problem, they don't expect the IT department to reply about first seeking legal advice for a patent search, and they don't expect to later have a bill from a patent holder because of the way in which the IT department happened to fix the problem.

For user communities programming to suit their own needs, the costs and timeline are also unreasonable, but there is also the bigger problem that the patent holder gains veto power over the distribution of the software. If the software is written for the purpose of having a freely redistributable program, then this third-party veto spoils the developer's efforts. There will be no direct profits from which to offer royalty payments, so the result is a lose-lose situation where the developer's goal is blocked, and there's isn't even anything in it for the patent holder (although the patent will still be enforced to sink the piece of software so that computer users are pushed toward a program which will pay royalties to the patent holder).

Standards

This issue is further exasperated by a problem which applies to all types of software developer: in no other domain are modern standards as crucial as they are in software. If you want to cure rubber, there are many ways to do it. When patents block a product developer from using one method, there's the possibility of useful innovation when that developer looks for an alternative method. In software, being blocked from using an email, image, or document format equates to being prohibited from writing a functional email reader, image viewer or word processor. Can you imagine the utility of an innovative word processor that can't read any existing documents? Nobody would use this, which means any innovations therein would have been wasted effort.

For video, this problem is a reality. The MPEG-LA group claims to represent more than twenty patent holders which each have one or more essential patents for implementing the commonly used mpeg video format. There's no licence available for freely redistributable software, and even royalty payers have to agree to MPEG-LA's terms. The committee developing the next standard for webpages, HTML5, spent months searching and debating which video format they could recommend in the standard, and the final answer was that, due to software patents, there is today no format they can recommend.(ref-1)

When "user communities" grow up

Now, it's important to look at the output of the mentioned user communities. If like, say, hobbiest watchmakers, they just catered for themselves and a few friends without attracting the attention of patent holders, then this wouldn't be a big problem. The system would still be unjust, but if the injustice never manifested itself, then it would be theoretical issue.

Indeed, freely redistributable software and the work that was begun by idealists and hobbyists has now lead to the world's most used webserver, the world's second most used web browser, and the GNU/Linux operating system. Indeed, the "users" are nowadays often employees, and their collaborative development models have emerged as the primary competitors in many software domains. Blocking collaboration turns out not only to be a restriction on useful individual activities, but it also stiffles competition and the mass production of useful software.

In software, rather than supporting innovators, patents protect the old against the new.

Although large firms now contribute to these projects, many of the developers are still individuals and people who don't directly profit. The terms of distribution for this software are the same now as they always have been. It's a proven formula, and a key clause is that you can't distribute if patent royalties will be required.

Example: GNU/Linux

The kernel of the GNU/Linux operating system was examined by patent attorney Dan Ravicher, who announced on August 2, 2004, that he had found no court-validated patents to be infringed but 283 *issued patents* existed which could potentially be used to support patent claims.(ref-2) Thereafter, Microsoft in the 2007 began claiming that the kernel violates 235 of its patents – although the patents have never been specified.(ref-3) Neither could be precise, but they these give us ballpark figures.

The kernel one component, and because the human-written source code is online, we can see it contains approximately 4,000,000 lines of source code. Given that a distribution of the GNU/Linux operating system, complete with applications, can contain software with more than 225 million lines of source code, when we extrapolate from the kernel numbers, we arrive at the possibility of 13,160 or 15,848 patent infringements per complete distribution.(ref-4) All of this in something that can be distributed once or a thousand times, usually at no cost, sometimes large corporations, sometimes by individuals.

This is a degree of uncertainty that can't be fixed by changes in evaluation standards.

As for innovation, lists and lists of research suggests that patents reduce software innovation.

There was a time when if you wrote something, you owned it, you could sell it, you could give it away. It could be put in the accounts and it could be used as the base for collaboration. Now, ownership of a piece of software is hopeful speculation. There is no reliable way to have a settled expectation regarding the boundaries or the extent to which you own a piece of software. This uncertainty, and this unfair regulation is what the Supreme Court has the chance to rid us of by giving the USPTO a reliable tool for excluding software ideas from patentable subject matter.

– Ciarán O'Riordan is Exective Director of End Software Patents

295 thoughts on “Abandoning software patents?

  1. insanity to argue with those, as someone put it, don’t understand the law and base everything on a technical viewpoint.

    the four categories includes “process” do they not.

  2. “With information theory, everything is mathematics, so what is your point? ”

    Wait wait, with info theory a bicycle is mathematics?

    Excuse me?

    A method of making a bicycle is mathematics?

    Come on, surely you jest Hutz.

    Perhaps you could show me the proper notation used in info theory for a method of making a bicycle. Or for a bicycle. Thanks in advance, especially if you can take a minute or two to explain the notation.

  3. Actually,

    Here’s another example:

    If I develop circuit testing equipment that’s novel and nonobvious, I believe most people would say that’s patentable. But what if I develop software that analyzes a circuit design and provides feedback to the designer? Shouldn’t that be patentable as well?

  4. General thoughts

    (1) Copyright is often good enough to protect software as people who copy software, copy software verbatim 99% of the time. Very few people who take the time to copy software will bother to rewrite it.

    (2) That leaves functionality, and with respect to that I have yet to read one argument against software patents that could not be made against all patents. Software also continues to replace hardware on larger and larger scales. Assuming novelty and nonobviousness, why shouldn’t software be patentable?

    Should software that improves an image on a monitor screen be unpatentable? What about a new LED? What’s the difference?

  5. “I have managed to get a lot of software patents through without having to argue this stuff, since thankfully no examiner has brought it up. But it has always been lurking in the back of my mind as a real can of worms.”

    A) Computation theory is the reason why software is maths. This a very different argument from nebulous talks about software being reducible to equations or software being influenced by mathematical thinking from the programmer’s part.

    B) Computation theory directly contradicts some critical point I have learned about how patent law views computers.

    I would say that from the point of view of someone who makes a living out of software patents, this should be a very nasty can of worms. If it is ever considered by the courts there is a strong likelihood new precedents will be set. My hunch would be if an examiner ever brings it up without some court first ruling it has to be considered, someone at the PTO is trying to set new precedents. Depending on how determined they are, you may be in for a tough run.

  6. Actual Inventork: After being quickly knocked down, Malcolm Mooney never attempted to post another example of an “a patent issued for merely determining and inferring” again, even though first bragging “he could do it all day”.

    So if I find an example of an issued determine and infer patent for you, then you and your cheerleader will take off your “track shoes” and explain why my RINGMASTER claim ain’t statutory subject matter? Go ahead, AI. Make my day.

  7. PoIR

    Thanks for the info on Davis. I will definitely look. I have managed to get a lot of software patents through without having to argue this stuff, since thankfully no examiner has brought it up. But it has always been lurking in the back of my mind as a real can of worms.

  8. “The author’s suggestion that patents on standards like MPEG somehow stifle innovation betrays a lack of faith in our collective ability to render such standards obsolete. Already, standards like 8-track, beta, and laser disc have come and gone, in many cases in less than a patent term.”

    There is enormous value in the ability to connect to a large installed base. For example if I invent a better TCP/IP protocol I can’t build a business on this protocol if I don’t also let my customers connect to the Internet. TCP/IP is required for this. The new and old protocols must coexist.

    The installed base can be an infrastructure like the Internet, it can be data, it can be the ability to interoperate with other vendor’s software.

    When a standard has achieved a critical mass in their installed base you can’t get your customers adopt the next generation technology if you don’t provide a transition path that let them keep using the old stuff while adoption of the new technology grows. You can’t work around patents on existing standards when the standard is required for providing a transition path. The new stuff may be much better but it won’t matter. The ability to integrate with what already exist is the dominant consideration.

  9. step back wrote,
    Suppose however that for one reason or another, you had been forced to strike it out on your own. To start competing against MS, or Big Blue with some new software idea you had. How long do you think you would survive were it not for the protection that patents provide for those who “truly” innovate?
    If MS or Big Blue didn’t have software patents to trounce me with I would have no problem. I was doing just fine as was the company I work for before software patents came about. And what do you mean by “truly” innovate? Who is the judge on that one? The bottom line is that if you are good at what you do or what you make, then the goods or services you provide have value, so I would be just fine thank you. BTW it makes an interesting sentence to substitute “mafia” for “patents” in your statement. It might actually make more sense in that light. Point is that if I tried to do just about anything on my own in this environment and MS or Big Blue thought it to be a threat all they would have to do is pull a few broadly written patents from their deep portfolio and shut me down pronto, so your point is null and void.

    step back wrote,
    I’ll tell you. (Because this a rhetorical answer.) Zero. You would last zero years. You wouldn’t even start. Because the whole notion of striking out on your own would be a nonstarter if you could not “own” your software innovation and at least sell it to someone else.
    No, actually I would “own” anything I wrote because it would be mine through copyright protection and I would license it as I see fit. Copyright would suffice. Instead of having a value propped up by a monopoly patent it would have perhaps less value–depending on circumstances, but there would be far more competition throughout the market and software goods would be far better and less expensive to obtain and use–a good thing. No one or no company could loft a patent my way and shut me down. Software patents don’t really protect, they threaten a corporations and individuals business health, they are used as anti-competitive and blood sucking leeching agents. Remember Blackberry $630M+ for sending email over a wireless network–by a patent troll, not an inventor. LOL look how patents protected them from a frivolous matter. With friends like software patents, who needs enemies?

    step back wrote,
    If there were no patents. You would have less value or no value at your corporate cubicle stop pit. Why should your corporation invent anything? Just wait for some sucker garage inventor to do some thing and then take it for yourself. Remember Netscape? Remember the guy who originated CPM80 –what was his name again? Hint: it wasn’t Bill Gates. What about the guy who came up with Visicalc (Bricklin, was that his name?). All these are road kill because they thought they didn’t need patents. They believed the system would do right by them. Well, surprise, surprise sarge –as Gomer Pyle used to say. How old did you say you were? Or is it that you were born yesterday and buy the corporate byline with sinker as well as hook?
    You have no idea what I would be worth with no software patents. I am worth what I get paid and that depends, on the most part anyway, on the quality of the goods and or services I provide. I had a healthy software related job long before software patents became the sore and festering issue they are today.
    Netscape did not die because it had no software patents. Netscape died, as many have, because they based their product on a OS product produced by an illegal monopoly organization–a recipe for roadkill. This was determined in a federal court of law and as far I can tell, not much has changed in the past 8 years. Now that same corporation hides behind its patents, threatening anyone that gets in their way. Not because they invented anything, but because they have granted monopolies–patents. An illegal monopoly organization running on monopoly patents–egads what a nightmare.
    For any patent you can obtain and even think you are “protected”, a large conglomerate with a deep and broad software patent portfolio could waltz into your operation and shut you down in the blink of an eye because you WOULD be infringing on something they have in their pocket. They don’t even have do demand payment, they could just shut you down and drag you into court. Now you prove you are not infringing. Now how is that protection and protection for who?

  10. @Red Monkey

    I have made some more research on the mechanical computer. This page discussed the Zuse machine.

    link to plato.stanford.edu

    They say this machine was programmable but not a stored program computer. This means it didn’t implement the operating principles of a Turing machine which requires that the program is stored in the same memory as the data. I guess if someone could go this far with a mechanical device the know how to make a mechanical stored program computer has been figured out. This person got all the basic building blocks to work and just didn’t assemble them the right way. But I don’t find an actual example of someone who has actually implemented a mechanical Turing machine.

  11. All software is comprised of generalizable mathematical algorithms. Yes, you can boil everything down to equations. For anybody who has actually written software, software patents are total b*llsh*t. Anyone arguing for them is a hack and a fool.

  12. @Red Monkey

    I notice I didn’t answered a couple questions from you. Here are the answers.

    “Is it the case that a universal Turing machine that is executing a particular “program” can always be implemented as a suitably complex Rube Goldberg type mechanical contraption? Intuitively, it seems like the answer is “yes” but I don’t really know. ”

    I suppose so. I am not good at mechanical contraptions. There is nothing in the principle of a universal Turing machine that restricts it to electricity.

    This is an example of a computer that is built out of water flowing in tubes instead of electricity.
    link to inquisition.ca

    I have found this report of a computer that works out of DNA.
    link to news.nationalgeographic.com

    This page reports historical accounts of previously made mechanical computers. I think the Konrad Zuse device maybe what you are looking for.
    link to diycalculator.com

    “A set of dominoes arranged as shown is clearly patentable subject matter. Now suppose I copied the layout and started doing it with bricks instead of dominoes. In a way, I’ve stolen the very essence of the invention. But what did I really steal? It wasn’t the dominoes. It wasn’t even anything tangible. Yet it was something. That something is, for lack of a better term, the “software.””

    I believe software is abstract. What you describe fits with this belief. This is the same kind of difference there is between the text and the ink used to print the text. If you scan a printed text into a PDF you steal an intangible abstraction and not the physical item.

    “What if you had written a program to simulate falling virtual dominoes on a display exactly as shown in the video? Wouldn’t that require about the same creativity as arranging physical dominoes in the same way? Why then shouldn’t a disk containing that program be patentable, whereas the arranged dominoes would be patentable?”

    Programs doing this sort of things exists. They are used all the time in Hollywood to create special effects and 3D animation movies. Does that make the movie patentable? Does that make a DVD containing the movie patentable?

    I think it what you suggest amounts to patent the abstraction indirectly through patenting the physical representation.

  13. fish bones stated,
    If music were invented which had the effect that when played it automatically put everyone within ear shot into such a deep sleep that surgery could be performed on them without any anesthetics, then I believe that it should be patentable subject matter

    We already have prior art on that. There are several songs in the venue of opera that would do that for me :)
    ..oh, I almost forgot, they [PTO] want to change the rules to first-to-apply instead of first-to-invent to make matters even worse and more unfair (easier for them), so better hurry up and apply for that one.

  14. Malcolm Mooney stated,
    They [software patents] keep a certain class of attorneys and agents employed who would otherwise be designing web pages for a living. Isn’t that enough?

    Malcolm, no that is not enough. That is not the intent of software patents so it is not a good reason to have them. They do nothing more than redistribute wealth in chaotic, profound, and generally unfair ways. They hinder progress and innovation for the public in general–just the opposite of the stated intent of patents. Software patents also drive up the cost of computing goods and services for the general masses because they are monopolistic in practice, preventing competition.
    …That certain class of attorneys and business agents you mentioned can find something else to do.

  15. I find this discussion about piano rolls fascinating. It ties with what I am saying on Turing machines.

    Data on its own doesn’t act but it can be acted upon. There are plenty of scenarios where you can do something with the help of information that is not possible without the information.

    But the data by itself doesn’t act. You need a device that has the ability to act on the data. This means the capability to act is there waiting for the data to be presented. This is how universal Turing machines work. This is how CPUs work. They have the capability to perform all possible algorithms when the right data is used.

  16. @Red Monkey

    If you wish to learn more about computer and mathematics I recommend reading Martin Davis’ book: Engines of Logic, Mathematicians and the Origin of the Computer. This is an enjoyable text written in plain English (no mathematical gobbledygook) that explains the roles of mathematicians in the invention of the computer. There are a couple of chapters on Alan Turing and Turing machines.

    Another good source is link to alanturing.net

    I need to give more details on Turing machines to answer your questions. One of the problems Alan Turing wanted to solve is how you define mathematically what was called at the time an “effective method”. See here:
    link to alanturing.net

    An effective methods is a set of rules to be carried out with pencil an paper to perform a mathematical computation. This was in the 1930s when “computer” meant a human being whose profession is doing computations. How do you translate the general concept of effective method in a mathematical definition? Human beings writing on paper are not a mathematically defined notion. This was one of the problems Turing machines solved.

    Imagine a mathematician doing a computation. He has a blackboard where the rules he must follow are written. He writes furiously on paper as he computes. Every now and then he looks at the blackboard to remember what to do next.

    The Turing machine is an automated mathematician carrying out an effective method. There is a memory (called the “tape”) where the symbols are read and written. This is the equivalent of the paper. There is a scanner that reads and writes the symbols on the tape as the computation progresses. This is the equivalent of the mathematician’s work. There is a set of transitions that regulates how the scanner works. This is the equivalent of the information on the blackboard.

    You can find a detailed analysis of why the Turing machine is equivalent to a mathematician carrying out an effective method in in Martin Davis’ book I did quote above.

    Another way to look at it is imagine the mathematician is using a typewriter that writes on a long tape, winding and rewinding it back and forth as directed by the mathematician. If you automate such typewriter using the rules on the blackboard you get a Turing machine.

    The question is how does the abstract Turing machine relate to gates that are physically present in the computer. Circuitry made of gates is a machine. This is patentable. So the question is not whether circuitry should be patented. It is what gets implemented as circuitry and what is not implemented as circuitry.

    • Symbols are not circuitry. It is information like the letters in an alphabet.
    • The memory is circuitry in modern computers, although other devices may do as well. The memory doesn’t do any computation. It is only a place where the scanner read and write symbols. The circuitry is independent of the symbols. It is a recording media that can accept all symbols.
    • The scanner is circuitry. It is the equivalent of the CPU. It is doing the actual computation work.
    • The rules written on the blackboard define what function the scanner must perform. They are embedded in the same circuitry as the scanner.

    So how does this translate in terms of software? For the sake of the example imagine we have an application that requires a lot of sorting. You can’t write software that can sort fast enough. Therefore you build a special chip that connects to the computer memory to do fast sorting. The sorting algorithm is an effective method that could be defined with a Turing machine. The data in memory is symbols. The memory doesn’t do any sorting. It just let the sorting chip read and write data until everything is sorted. The sorting chip implements the Turing machine scanner and the rules that are on the mathematician’s backboard. The chip is patentable circuitry, therefore you can patent this kind of sort-on-a-chip.

    But you don’t want to build new chips for every algorithm. You don’t have to. There is another way.

    Imagine that the mathematician has on his blackboard “pick up the pink sheet the secretary brought you and do what is written there”. Then the blackboard tells him how to perform every possible algorithm provided the pink sheet with the right information is available. If you turn this blackboard instruction into a Turing machine, you get what is called a universal Turing machine.

    In computer terms, the instructions on how to sort are stored as symbols in memory. No gates are being built. Symbols are not made of gates. The memory is made of gates but it is just a recording media. It doesn’t do any calculation. The CPU implements the scanner of the universal Turing machine. The instruction cycle is the “do what is on the pink sheet” part. The pink sheet is the symbols that makes the program in memory.

    Now where is the Rube Goldberg contraption that is made of gates that would be the basis of a patent? Answer: there is none. The difference between the sort program and any other programs is in the symbols stored in memory. Symbols are not made of gates. Memory uses the same gates to record all possible symbols and does not perform the computation. The CPU is unchanged.

    This is like driving instructions. I tell you how to drive to the City Hall. Suppose your car has an automatic pilot. You type in the driving instructions and the automatic pilot drives you there. Are you making a new Rube Goldberg contraption that makes the driving instructions patentable subject matter when you do this?

    Now people will argue. This is unfair. The inventor that has patented a chip will find his ideas stolen by the software. Or conversely why the software inventor has no patent when the hardware inventor has one. This is the same functionality.

    At this point I ask. What do you want to patent? The machine? Or the functionality? If you patent a machine it implies it is ok to achieve the same functionality by other means. You don’t infringe on the machine. And if the other mean is not patentable at all, then you still don’t infringe on the machine.

    But if you patent functionality, you are not patenting a machine. You are patenting functionality. Such patent are effective only if all implementations of the functionality is covered, even those that are not machines. Then if functionality is not a machine, on what basis is it patentable subject matter?

  17. Malcolm Mooney wrote: “Your example is interesting, however. If I were a pathetic wanker like Actual Inventor ….”

    Distinguished commenters in this thread. Please excuse the interruption and feel free to skip over this post and continue the insightful discussion, while I deal with the resident troll and Sr. Court Jester of the blog.
    _____________________

    AI: “I don’t have a medical or bio chemical specialty.”
    AI: “can you cite one patent issued for merely determining and inferring?””

    Just one? Pardon me, Hans:
    5,693,470
    1. A method of determining a predisposition to cancer comprising: testing a body sample of a human to ascertain the presence of a mutation in a gene identified as hMSH2 (human analog of bacterial MutS and Saccharomyces cerevisine MSH2) which affects hMSH2 expression or hMSH2 protein function, the presence of such a mutation indicating a predisposition to cancer.
    I can do this all day. What a rube.
    Posted by: Malcolm Mooney | Oct 29, 2009 at 04:54 PM

    ______________________

    Why didn’t you cite the prometheus patent we are discussing here. Are you tacitly conceding that prometheus is not a patent on a mere mental process? I don’t have time to look up this patent and read the spec, which is preferable to do since you are a notorious liar and game player. But just taking the claim as you typed it, anyone can plainly see there is more happening than the mere mental process of determining and inferring.

    For example, take the first step:

    ” A) Testing a body sample of a human to ascertain the presence of a mutation in a gene identified as hMSH2 .”
    Unless the specification described some technique for looking into a human being with super microscopic x ray vision this step is clearly going to require a physical action and the use of technology. And as long as the claim does not preempt its statutory under 101. Move on to 102.

    Next?

    Posted by: Actual Inventor | Oct 29, 2009 at 07:42 PM

    ____________

    FOR THE RECORD:

    After being quickly knocked down, Malcolm Mooney never attempted to post another example of an “a patent issued for merely determining and inferring” again, even though first bragging “he could do it all day”. Instead he ran crying for his hypothetical thought experiments where he is free to play and never be held accounted to the rules, laws, and mechanics of the real world.

    Malcolm, I said “Next?” and I am still waiting, if you can ever get up off the canvass.

  18. The reasoning in this article is very poor. If you look at his “research” links, the articles do not show what he says. As for his main example, there is no instance where an IT department has been sued for patent infringement for fixing a bug. The US has the strongest software patents and the strongest software industry. Private property rights work as an incentive.

  19. RedMonkey Certainly, the piano’s structure has not changed. But when paired with this “software”, the piano can suddenly do things it could not do before.

    Not really. It was always capable of doing those things. But it was doing something else because it was receiving different instructions.

    Would you agree that that the union of that piano with the special piano roll could be patentable?

    Depends on the claims.

    How about just the piano roll by itself without the piano?

    Nope, because it’s just information, unless you want to try to claim it structurally (instead of functionally). Consider: how about if instead of a piano roll it’s sheet music to be sung by ten people which achieves the same effect (filling the stadium)? Can the sheets of music be patented? Nope.

    You could try a true method, perhaps.

    Your example is interesting, however. If I were a pathetic wanker like Actual Inventor or Troll Above Law, I might respond with a non-sequitur and say “it’s not a patent” and then blow you off. But there is a problem with your hypothetical: you stretched too far. Might as well have claimed a piano roll that turned the piano into a time machine or an interplanetary spacecraft. Not going to happen. By choosing your particular hypothetical, then, you have made the argument that real-world software for real-world computers is banal and does not change a computer into a different machine any more than painting a hammer white (very useful if you’re hammering nails on a brown roof) changes the hammer into a different machine.

  20. “But if so, why isn’t roll+piano also structurally different from just piano?”

    Technically, yes. But being structurally different isn’t patent worthy in itself.

    The roll is not what gave the piano the ability to create the new sound, the structure for that was already there. It’s the data on the roll.

    If different data is all that’s required to be patently distinguishable, then shouldn’t every single different possible roll be individually patentable? After all, at the time of creation, the inventor had the ability (maybe not the resources) to create every distinct possible roll, and that special roll was among them. But if the special roll is patent eligible, then all rolls must be.

  21. “The patent system works just the opposite of what was meant to do in the case of software. It brings the system to its knees and keeps it there. I know, because I live it day to day. It is an inverted and silly mess because of patents. I can’t say much about other industries although I have my doubts, but for software I know patents do not do what they are supposed to do.”

    They keep a certain class of attorneys and agents employed who would otherwise be designing web pages for a living. Isn’t that enough?

  22. ” If the PTO had trouble with pharma patents and issued a lot of invalid patents, would peopel start hollering to prohibit such patents? No. ”

    LOL! People are hollering to prohibit such patents now without any credible arguments as the validity of the claims. You think if the PTO starting releasing reams of functionally-claimed biotech crap requiring no working examples that the ranks of those advocating a ban wouldn’t swell?

  23. Les stated,
    “Are you saying that mechanical machine patents disclose every little detail, down at the equivalent of the source code level? I think the mechanical engineering community would disagree.”

    In most cases you can inspect the machine or physical device to understand how it works. Take a pair of pliers for example, or a bulldozer, or a lock system. In the case of software it is hidden in a black box, the software source code. So between the patent and inspection of the physical machine you can get a clear understanding.

    Les stated,
    “Also, disclosing the invention so that ones of ordinary skill in the art could make and use the invention without undue experimentation is yet another requirement placed on patentees. So, if you are blocked from improving Linux by a patent that doesn’t meet that requirement, don’t worry about it. Its not valid.”

    How do you prove that it is not valid? How much money and time will that cost and what if you have to endure a shutdown, takedown, or blocking action in the process? Loss of $Millions/$Billions while the courts slowly churn along in the process? What if the patentee does not want you to “use” the idea as an anti-competitive measure? Multiply this by thousands of possible patents and you have nothing but an unmanageable mess of a system that is designed to prevent competition and advancement in the best interests of enriching the few–at the expense of the court system and society at large. This is not the intent or mandate of the patent system–it just does not work for software.

    Les stated,
    “The public benefits from the availability of software that would not otherwise have been made available because software is so obvious and if one didn’t have the availability of patent protection one would be less likely to make the required investments in developing new software because as soon as its made public, the novel approaches included therein could easily be duplicated by others…who didn’t spend any money to come up with them.”

    There is no supportive basis for your argument here Les. Most of the software we use today was built before software patents were used to prevent and hinder competition. I would suggest to you that software investment and software building activity would increase significantly in the absence of software patents–on both large and small scale. In that model the best software and best innovation wins, not the biggest patent holders.

    If investors were to bail because software patents were invalided, that would be a very temporary situation as they would soon realise that investing in the best innovation would be the true key to successful ROI. The current situation of investing based on anti-competitive patent portfolios would take a clear back seat.

  24. Zman58,

    Now to brass tacks (or at least galvanized cheap iron):

    I take it that all 8 of your personal patents were under the sponsorship of your corporate mother (accordingly, are you a Ma Bell cog or an MS drone?), which is why they, the company instead of you have ownership over the Intellectual Property (IP) you helped to create.

    Oh. BTW. “Thank you for your service.” (They make us say that to show we support the troops.)

    Suppose however that for one reason or another, you had been forced to strike it out on your own. To start competing against MS, or Big Blue with some new software idea you had. How long do you think you would survive were it not for the protection that patents provide for those who “truly” innovate?

    I’ll tell you. (Because this a rhetorical answer.) Zero. You would last zero years. You wouldn’t even start. Because the whole notion of striking out on your own would be a nonstarter if you could not “own” your software innovation and at least sell it to someone else.

    If there were no patents. You would have less value or no value at your corporate cubicle stop pit. Why should your corporation invent anything? Just wait for some sucker garage inventor to do some thing and then take it for yourself. Remember Netscape? Remember the guy who originated CPM80 –what was his name again? Hint: it wasn’t Bill Gates. What about the guy who came up with Visicalc (Bricklin, was that his name?). All these are road kill because they thought they didn’t need patents. They believed the system would do right by them. Well, surprise, surprise sarge –as Gomer Pyle used to say. How old did you say you were? Or is it that you were born yesterday and buy the corporate byline with sinker as well as hook?

  25. “I don’t think it’s accurate to say that it couldn’t do it before. It just hadn’t been tried.”

    But isn’t that true about all inventions?

    For example, suppose you were the first person to put thumbtacks on the felt hammers of a piano to create a honky tonk sound, isn’t it correct to say that the combination of thumbtacks plus piano could always have done that before, except it just hadn’t been tried?

    The usual response is that tacks+piano is different structurally from just piano. But if so, why isn’t roll+piano also structurally different from just piano?

  26. The SCOTUS should kick software patents using the free speech argument.

    At least that would give a strong argument to shut the mouth of those patent attorneys “yes, but software is technical and is patentable”.

    Programmers should be able to program Advanced Braking Systems, and be able to sell their programs.

  27. Zman58,

    Is that your age or the year you were born, the 58, I mean?

    Either way, the words you used were implanted in your brain by the script writers of Talk-points for the CAIPPR** organization:

    stifle?
    Only Archie Bunker used to talk like that.

    inNOvation?
    What a wonderful word because it takes the “invent” and thought of the “inventor” out of the listener’s mind. What inventor? There is no inventor. There is only the corporate corpus and the nebulous cloud of inNOvation that it fosters.

    BTW: CAIPPR := Coalition [of] Anti-Inventor Patent-Pirating Rascals.

    Yes they have pulled a capital caper here. They have brain washed you into believing that the patent system is your enemy. What’s next? Outsourcing is your friend? Big Brother lives. He lives in you and in your cubicle hugging brethren.

  28. Mike

    “If there are any good arguments over there, would you mind posting a link? ”

    Since software is mathematics invented by mathematicians, I don’t think its possible to construct a strong argument against software being mathematics. At best, people could call software not-a-duck although it walks, quacks, and looks like a duck. The mathematics and computer science communities have made their stance clear on the subject, but people seem to flat out ignore them. In fact, lawyers and a handful of businessmen are the only people given consideration of the issue.

    I don’t think a math argument can work even though software is mathematics. People are too woefully ignorant of mathematics to understand any argument. Even well educated people in a university setting often struggle to name three mathematical theorems. To understand the problem, people have to have a good understand about how mathematics is constructed, and most people cannot understand the highly polished material.

    I expect Bilski to have no impact on software patents. I look for the court to roll back the test because it impacted many areas.

  29. Step Back stated,
    “Gee whiz Zman, how did you come up with those novel and original set of words? Did you think them up all by yourself or were they “programmed” into your head by the brain washing committee?”

    ..Yet step back has posted nothing here. No addition in any way. Do you have something useful or intelligent to add Step Back ? If so then please do add something useful.

    I have probably worked in the software industry more years than you have been here on earth. ..before you were a flicker in your father’s eye.

    Fact is that software programmers “invent” things continually–while solving higher level problems. I have invented many process related software methods over the past 25 years–too numerous to count. I currently hold 8 software patents of which I could care less about–as in most cases these were immediately transferred to the business I work for based on an agreement signed when I hired in.

    Only recently have business leaned on programmers to patent their ideas. Most of the “ideas” that are patented are then immediately transferred to the business to prop up the business anti-compete program. Some businesses mandate patent quotas requiring software engineers to apply for a stated quota of software patents each year. I know from first hand experience about this. This is how technology stagnates and how business then can then do as little as possible to innovate–they don’t need to innovate because they are sitting on a mountain of patents preventing competetion from happening.

    The patent system works just the opposite of what was meant to do in the case of software. It brings the system to its knees and keeps it there. I know, because I live it day to day. It is an inverted and silly mess because of patents. I can’t say much about other industries although I have my doubts, but for software I know patents do not do what they are supposed to do. The software patent system does not help, it severely hinders and prevents innovation.

    So print us something useful “step back”. Go ahead, I dare you.

  30. “But when paired with this “software”, the piano can suddenly do things it could not do before.”

    I don’t think it’s accurate to say that it couldn’t do it before. It just hadn’t been tried. When someone plays a song on a piano that hasn’t been played on it before, that isn’t granting the piano some new property any more than a car gains a new property by taking a turn it hasn’t taken before.

    So no, I don’t think that union _should_ be patentable.

    As far as the particular sequence that had that effect (I assume this is what you mean by the piano roll by itself), it should be eligible for copyright, so I don’t know why it also needs a patent.

  31. Anon

    But what if someone came up with a piano roll that, by playing certain notes at just the right times, caused the piano to resonate and vastly amplify its sound, thus enabling you to use the piano without any amplification to replace an expensive organ at a baseball game. Certainly, the piano’s structure has not changed. But when paired with this “software”, the piano can suddenly do things it could not do before.

    Would you agree that that the union of that piano with the special piano roll could be patentable?

    How about just the piano roll by itself without the piano?

  32. PJ – Your arguements and assertions are disjointed and incoherent. e.g.:

    “And you need to think too about the fact that proprietary software companies are allowed to get a patent without actually showing how the patent works, minus the source code, which distinguishes software patents from all others, where at least others can build on your work. Where is the quid pro quo with software patents? How does the public benefit?”

    Are you saying that there are software patents for things that don’t work? If so, why are you worried about them? Do you want to include non-working software in Linux?

    “minus the source code”…what?

    “Distinguishes software patents from all others”? Huh? What?

    Are you saying that mechanical machine patents disclose every little detail, down at the equivalent of the source code level? I think the mechanical engineering community would disagree.

    Also, disclosing the invention so that ones of ordinary skill in the art could make and use the invention without undue experimentation is yet another requirement placed on patentees. So, if you are blocked from improving Linux by a patent that doesn’t meet that requirement, don’t worry about it. Its not valid.

    The public benefits from the availability of software that would not otherwise have been made available because software is so obvious and if one didn’t have the availability of patent protection one would be less likely to make the required investments in developing new software because as soon as its made public, the novel approaches included therein could easily be duplicated by others…who didn’t spend any money to come up with them.

  33. Perhaps the best illustration of what software patents mean, comes straight from the horse’s mouth–the (in)famous Bill Gates 1991 memo on the subject:

    “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. … The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.”

    To me, this says that software patents are first and foremost an anti-competitive tool, which hinders, rather than helps, innovation (as Bill Gates himself says: “the industry would be at a complete standstill today”).

    Now, anyone has every right to be opposed to building and maintaining a competitive and innovative software industry–if that’s your opinion, then that’s fine with me, but let’s, then, simply agree to disagree, shall we?

  34. “Since as you point out, there isn’t really a way to distinguish functional from nonfunctional data, maybe we have to concede that CDs (or piano rolls) with music pass the section 101 test. After all, the statute says a “manufacture” can pass the test. Then you’d move to the next test, section 103, and reject a claim to a CD with Freebird as being rendered obvious by a preceding CD with Blackbird.”

    This seems like the most reasonable solution to me (if it wasn’t clear, I think most software should not be eligible for patenting). As curious alluded to, the first player piano (and by extension, the first roll/cd/etc) would certainly be patentable. The first piece of software might have been patentable as a concept. But since there really is no objective distinction between functional/non-functional data, new software data would be rendered obvious by the original software concept.

  35. Po1R

    Thanks for the intro to computation theory. I’ve never understood that stuff as well as I’d like. But I think it’s pretty relevant to this subject.

    Is it the case that a universal Turing machine that is executing a particular “program” can always be implemented as a suitably complex Rube Goldberg type mechanical contraption? Intuitively, it seems like the answer is “yes” but I don’t really know.

    I know that a lot of simple algorithms can be implemented either by programming a computer or by building suitable hardware (either electronic or mechanical) to do the same thing. The former case needs software and hardware, but in the latter case, the software seems to disappear, or to somehow merge into the design.

    For example, in link to youtube.com we see logic gates implemented as falling dominoes. In a sense, the “software” here lies in the arrangement of dominoes. This arrangement is what “controls” the dominoes so they can function together as a logic gate.

    A set of dominoes arranged as shown is clearly patentable subject matter. Now suppose I copied the layout and started doing it with bricks instead of dominoes. In a way, I’ve stolen the very essence of the invention. But what did I really steal? It wasn’t the dominoes. It wasn’t even anything tangible. Yet it was something. That something is, for lack of a better term, the “software.”

    What if you had written a program to simulate falling virtual dominoes on a display exactly as shown in the video? Wouldn’t that require about the same creativity as arranging physical dominoes in the same way? Why then shouldn’t a disk containing that program be patentable, whereas the arranged dominoes would be patentable?

  36. Bread, it would require a book to do this justice, but at the risk of being misunderstood, I’ll write few words.

    On claims to a disc carrying information, the EPO leaves it to Article 56 (equivalent to your 103) to filter out unpatentable matter. Not everything that is unobvious (a new tune maybe) is patentably unobvious. For the EPO, an invention is not patentable unless it is the non-obvious solution to an “objective technical problem”.

    The “objective” criterion is tied to the definition of the PHOSITA. She knows ALL the art but isn’t inventive. No real person is like this. But we want an objective obviousness standard, don’t we?

    The “technical” criterion is tied to TRIPS “All Fields of Technology”. When you compose a clever new tune, you don’t solve any technical problem (although Greg Aharonian would dispute this).

    So, at the EPO, when arguing 103, the Board will be looking to hear from you what technical problem is solved by the claimed subject matter. Once that is settled, it can decide (using the Problem and Solution Approach – PSA) whether the claimed combination of technical features delivers a solution, and whether the State of the Art at the priority date contained any published hint or suggestion, to the PHOSITA, to use that feature combination, to solve that technical problem.

    OK, I know that PSA won’t fly in the USA, however well it works in Europe. But you did ask.

    And it does work in Europe. If you don’t believe me just scan the 100+ Amicus Briefs now on the EPO website in the context of the recent President’s referral, of the de facto patentability standard on software, to the EPO Enlarged Board of Appeal.

  37. Who are you “Red Monkey”. How do you know it’s “Nobody”?

    Can you give us your “take” on the EPO caselaw in this field. Its Technical Boards of Appeal seem to have quite satisfactorily cracked some years ago the problem of how to refuse discs with a clever new tune while allowing claims to discs carrying a new and not obvious contribution to the technical field of operating systems.

  38. Anon

    Let’s not mix up sections 101 and 103. A Freebird roll may be unpatenable over (i.e. rendered obvious by) a Blackbird roll. But before we can even compare the two, the Freebird roll has to pass the section 101 test.

    Since as you point out, there isn’t really a way to distinguish functional from nonfunctional data, maybe we have to concede that CDs (or piano rolls) with music pass the section 101 test. After all, the statute says a “manufacture” can pass the test. Then you’d move to the next test, section 103, and reject a claim to a CD with Freebird as being rendered obvious by a preceding CD with Blackbird.

    It sure feels like there is a qualitative difference between an audio CD and a CD with a copy of OS-X, but for reasons you describe, nobody has articulated a way to separate them cleanly.

  39. “Software patents do not improve society in any way–they stifle innovation and prevent healthy competition.”

    Gee whiz Zman, how did you come up with those novel and original set of words? Did you think them up all by yourself or were they “programmed” into your head by the brain washing committee?

    Never mind. Return to your cubicle and continue to churn out original thoughts. Society desperately needs obedient cogs such as yourself.

  40. My guess is that most everyone that is for abolishing software patents has never invented anything themselves so they are not really aware of what is involved. I personally know alot of programmers that do not have to know anything about (the function) what they are writing a program for. Just follow the spec.

    It is not the program that is patented but the underlying function that can be patented in a software patent. In otherwords, it is the result of the programming… the process that encompasses the input/output and how the variables are operated on that is patented not the code itself. This makes it in the same realm as any other inovation and therefore it fits with what can be patented. I am a holder of 2 software patents with 2 pending, and I am not a practising programmer. I understand the process and have practiced many years hence, but now must concentrate on the creation side, not the programming grunt work.

    One other point answering Mr. O’Riordan’s rant is that there would be no system for developers to use at virtually no startup costs if it were not for the fact that myriads of entrapreneur/inventors were able to obtain patents in the literally thousands of inventions that had to be developed before the modern state of the art that we now enjoy could develop. It absolutely without question, would not have developed.. meaning it would not be here at all otherwise.

  41. “In my world, if the idea is new and unobvious the inventors are entitled to own and profit from their idea.”

    This is precisely at the heart of the problem of how patent attorneys view software patents. They don’t understand them.

    Note what he says, “inventors are entitled to profit from their idea.”

    Malcom is correct, much too many of the software patent applications claim “ideas” not inventions.

  42. Ned Heller: “But the way Linux continues to be developed by what appears to be unaudited additions from the public cannot work to provide ‘clean’ intellectual property-free code in an environment of patent and copyright protection.”

    1) Contributions to Linux are hardly “unaudited.” Most projects with a significant number of contributors also have a very robust auditing system in place, and everything contributed implicitly has a publicly-viewable electronic trail.

    2) While nothing is perfect, Linux has done a notably better job of staying “IP-free”, as you call it, than most commercial software. Closed-source code is just as bad or worse when it comes to IP violations, mainly because the dirt is easier to hide inside a black box.

    3) It is not feasible for any project, closed-source or open-source, to complete a comprehensive, effective audit of its codebase for patent infringement. That’s one of the quandaries forced upon us by our broken patent system.

  43. From Red Monkey:

    “I am not sure though that it’s fair to say software doesn’t control the computer. I understand it correctly, after being translated to lower and lower levels, source code is eventually expressed as microcode instructions, each of which is fetched in a given cycle and used to apply actual voltages to pins of a microprocessor.

    As pointed out above, the microcode isn’t really “controlling” the microprocessor itself, because that microprocessor only carries out one algorithm, namely that of fetching the next instruction at each cycle. But I think you can make a good case that those microinstructions are controlling the computer system as a whole. ”

    There is a number of difficulties in these two paragraphs. I will try to sort them out.

    1) It is not true that all software get translated down to microcode level. Take the example of the BASIC program that is run into an interpreter. This program doesn’t even get compiled so the translation chain stops right there. This program remains in its text form and is executed directly without translation into a lower level. Something similar is true for byte code interpreters like Python.

    2) I am not a hardware geek but I am told that not every CPU architecture has microcode. So for a CPU that doesn’t have microcode the idea of a translation into microcode would fall flat.

    3) Microcode is the implementation of the CPU instruction set within the CPU. Programs never get compiled into microcode. They are compiled into instructions and the CPU uses the microcode to interpret the instructions much like a BASIC interpreter interprets the text of a BASIC program. So if you want to argue something controls, going down to microcode is arguing the CPU and not software is the controlling device and this is exactly my point.

    If you want to make sense of this single algorithm thing, I mean the instruction cycle, you need to know about the history of how computation theory and computers were developed. To make this history very brief, Alan Turing came up in the mid 1930s with the concept of Turing machines in a (successful) attempt to capture the concept of mathematical computation. A Turing machine is an abstract mathematical device that makes a computation from an abstract point of view.

    Then Turing wondered, what if I make a Turing machine that reads a description of another Turing machine and do what it is told to do? He found that this can be done. He could define what is called a universal Turing machine that does exactly this. The implication is you don’t need to build a new machine for every new computation. The universal Turing machine can do them all. You write a description for the Turing machine that will do the required computation and pass this data to the universal machine that will do as it is told.

    At this point engineers knowledgeable of the work of Turing thought, what if we build such a machine? Alan Turing did this kind of work in England. John Von Neumann and other worked independently in the US. They realized that the abstract Turing machine is too rudimentary to make a viable physical device and required an infinite tape which is impractical. They improved the design and had to limit the memory to something that is realistic. What you get when you do this kind of engineering work from a Turing machine is the modern stored program computer architecture.

    To put it simply, the universal Turing machine is the mathematical principle that makes it possible to build and sell modern digital computers.

    The single algorithm, the instruction cycle, is the implementation of the principle set forth by Turing’s universal Turing machine. This algorithm is “read data that tells you what should be done and do as you are told.” It doesn’t matter if the instruction cycle is implemented in microcode or otherwise as long as it follow the principle of a universal Turing machine: read the description and do as you are told. This description is the data called a program. This algorithm can do the work of every other algorithm provided you give it the right data.

    The universal algorithm can be implemented in hardware, it can also be implemented in software. The BASIC interpreter is an example. An emulator for a CPU would be another.

    Also this is why you don’t need to make new hardware for every new algorithm you implement. The universal algorithm is already in hardware and it is the only one you will ever need. I know there is some law that says you make a new machine when you program a computer. When you are trained in computation theory this law strikes as very odd to use an euphemism.

    Also the universal algorithm requires that the description is supplied as data. This is why the boundary between code and data is non existent. In fact you can have data that is not code but you can’t have code that is not data.

    So what is controlling? It is the hardware implementation of the universal Turing machine. In the current set of computers this is the CPU+motherboard because memory is part of Turing’s mathematical model. The software is just data.

    But since the universal Turing machine does what the program data tell it to do can we say the data is controlling? Perhaps in the same sense that any data that is acted upon could be said to be controlling. Music bytes is controlling the sound on the speakers. Instructions in a PDF file is controlling the text of the document on the screen. But if controlling means changing the states of gates, the program doesn’t manipulate any gates. The hardware implementation of the universal Turing machine does.

  44. “Patents should only be limited to areas where society will benefit”

    That is an impossible test to state and to apply

  45. “Resting sheet music on the piano does not “transform” the piano in quite the same way.

    A player piano with a roll though is a different problem. I think that is closer to what a programmed computer is like.”

    Precisely. The functional/non-functional distinction is the problem. As pointed out, the computer sees it all as merely data, and even different programs differ on their view of functional/non-functional. All of it would cause the computer to do something when fed into the processor through the correct interpreter, but some instruction streams are more useful than others.

    At the end of the day though, the software, like a sheet of music, or even the player piano roll (or any music box device) is just data interpreted by a machine. There’s a finite number of programs a given machine can comprehend, just as there are a finite number of musical pieces that a player piano could play.

    We don’t grant patents on the various player piano rolls, because we know they are just data being processed by a machine. My understanding of the printed matter doctrine is that the Freebird roll wouldn’t be patentable over the Blackbird roll, because it’s the same device with different data. So why is software not rejected under the same premise?

  46. I have not seen one good argument on why software patents are needed to help society or to improve this art. There is no indication that investment in software development would reduce if software patents were considered null and void. I believe that the opposite would happen; we would see far more investment and far more innovation as a result of doing away with software patents. Why? because people should be free to use and share ideas related to software as they wish to solve problems for themselves and others. Just as they are with mathematics. Free, just as they are with graphic art. Just as they are with music. Ideas should not be owned and locked up and doled out for use only by paying entities. Copyright and trade secrets should suffice to protect software authors’ and software inventors’ interests. Let competition and innovation prevail.

    The software industry had no patents for most of its growth. Where will we be 20 years from now if the insanity of software patents prevails? What will it take to write and distribute a competitive software application 20 years from now? I have worked in the software industry for many years now and see nothing but unnecessary complications, burdens, and expense as the result of software patents. It will only get worse if the insanity of software patents prevails.

    Only the folks who have vested interests in software patents, such as software software patent lawyers, patent trolls, and corporations who have pooled patents to prevent competition are having problems with this concept. Why? because they stand to lose out, while the much greater numbers of society at large stand to gain. This is exactly why it is not reasonable that software ideas be patented.

    Patents should only be limited to areas where society will benefit–used in a very judicious manner in those cases. A patent is a granted form of monopoly–it should only be permitted when warranted as providing good to society at large. Patents should never be used to grossly enrich a few at the expense of all–as is currently the case with software.

    Software patents do not improve society in any way–they stifle innovation and prevent healthy competition.

  47. The Supremes have a difficult task ahead of them. Many valid and interesting points have been made in this post in response to the author’s work. But perhaps it takes a mad man to summarize cogently the views of IP opponents:

    link to youtube.com

  48. PoIR

    You certainly know this stuff technically, and so you can see the conceptual difficulties the law is up against: data and software are largely indistinguishable.

    I am not sure though that it’s fair to say software doesn’t control the computer. I understand it correctly, after being translated to lower and lower levels, source code is eventually expressed as microcode instructions, each of which is fetched in a given cycle and used to apply actual voltages to pins of a microprocessor.

    As pointed out above, the microcode isn’t really “controlling” the microprocessor itself, because that microprocessor only carries out one algorithm, namely that of fetching the next instruction at each cycle. But I think you can make a good case that those microinstructions are controlling the computer system as a whole.

  49. Red Monkey,

    To pile on what you said a PDF file is made of instructions on how to render the document. When you start acrobat reader and open your document you actually launch a virtual machine that executes the instructions, exactly like an exe.

  50. Anon:

    The analogy to music is a really good one but there is a wrinkle that I’ve had trouble understanding. It’s related to the printed matter doctrine alluded to above.

    The PTO makes a distinction between “functional descriptive material” and “non-functional descriptive material.” A CD containing the former is supposed to be a patentable article of manufacture (essentially a Beauregard claim). A CD containing the latter is definitely unpatentable.

    But the distinction is elusive because the distinction between program and data is elusive. For example, a text listing of a program might be regarded as a a program. But to a compiler, it would just be data used to produce an executable version of the program (which again to the compiler is also data). More familiarly, to Windows Explorer, an exe file is just another file to be shown like any other; it is just data. And yet, it executes, so it’s not just data.

    Notwithstanding the PTO position, musical notes are of course just instructions to play a patentable device (i.e. an instrument), and in that sense they are just like software. I think the difference though is that when a computer is programmed to carry out a task, the “musical notes” (i.e. software) become integrated into the device in a way that actually changes the device. You cannot really separate the two. Resting sheet music on the piano does not “transform” the piano in quite the same way.

    A player piano with a roll though is a different problem. I think that is closer to what a programmed computer is like.

  51. Mike:

    Relativity is easy. Einstein did not “invent” it because it was always there to being with right under our noses.

    Abstract ideas are harder because nobody can agree on what an abstract idea is.

    “I have no doubt that there is logical structure to mechanical devices, but it isn’t the logical structiure, divorced from the device, that is patented, it’s the device as a whole.”

    This is important, because a common way to protect software without running into the abstract idea problem is to claim “a computer programmed to do X”. That claims “the device is a whole” in a way that I think would satisfy you, rather than just trying to claim the logical structure divorced from any underlying physical thing.

    The “tied to a machine” thing is irrelevant for that claim, because the claim already recites a machine to begin with.

  52. @breadcrumbs

    “Clearly, in my view, you were the one that horrbily conflated patents and copyright. I simply used your advanced math concepts to show to you why you were mistaken.”

    I have kept great length to explain why in my view copyright was acceptable protection to software and patent was not. I don’t see how this is “conflating”. It is the exact opposite.

    I am afraid you didn’t understand what I was saying about mathematics. If you tried to teach me something on that basis it has been a tough sell.

    I have no idea what anomoly you have in mind. Perhaps it has to do with the mathematical concept of reducibility (not transmutability as you wrote earlier, I supposed you meant reducibility?) which has a much narrower scope than what you seemed to give it back then. When I use a term of art in mathematics its meaning should be read according to the art.

    “Your posts at Gene’s site (and here) seem congenial. Your posts at groklaw were anything but. Which side of your face should I be looking at?”

    You should look at both. I stand by all my writings. When I am a guest at someone’s place I am polite to the other guests. I don’t stop thinking how I think. I have good manners as someone should have in these circumstances.

    I hear that I have wrote things on groklaw that offended you. I am sorry about that. I didn’t want to offend. I wanted to discuss my views on how technology actually works compared to what some view of the law say it works. I stand by my ideas. I don’t think that the law should redefine the facts about how computer works and how the mathematics of computing work. The facts must remain the facts.

    I hear that you think I don’t understand the law. I think that some aspect of the law don’t understand the facts. We can agree we have a disagreement here.

  53. “So what I ask all the no-software-patents folks is, is this right? Is this the way it should be?

    What if the copycats are in fact a Chinese software firm selling CC word for 1/10th the cost of the real thing? Does that alter the answer?”

    Yes, and yes. The later is because those dirty Chinese are still price gouging us since obviously we have it for free at the present moment.

    “I think that what gets lost in this discussion is that a main premise of the pro-patent side is that what is patented is legitimate; it’s new and unobvious and but for the inventor the invention would not have been available for people’s benefit (at the time of invention and at least for some time after; a patent rewards not just innovation but coming forward with it early so that the benefit is available now not later).”

    The problem is, that’s pretty full of bs, that premise never even works for the patentable subject matter that we think is fine. And

    “(at the time of invention and at least for some time after;”

    ^ that caveat is huge and kind of transforms the whole point you were making into meaningless considering the brief nature of the software lifespan. Our being without one click ordering (amazon) for a whole week, month, or few years simply wouldn’t have made much of a difference to anyone.

    Furthermore, you presume, without justification that somehow everything that is novel and non-obvious is somehow automatically “legitimate” when that is not what the law says and it isn’t what many people agree with.

  54. “They copy the form and function; the ideas. ”

    Precisely the things that patent law was never meant to “protect” and was rather meant to use as a “stimulus” to encourage people to “design around”.

    Funny, without software patents we get the exact benefit that the patent system is meant to encourage.

  55. One of the big problems with software patents is that it can be vastly more expensive to deal with a single software patent accusation than to develop the impugned program.

    Physically bound patent processes often require hundreds of thousands — if not millions of dollars of equipment to process. In that space, the thousands of dollars to defend against a spurious patent suit are an annoyance, but bearable.

    Writing a small program may take me a day or less of my time, worth perhaps a few hundred dollars Even a month’s work, full time, is only a couple of thousand dollars of my time. Much less if you only include the direct costs of the time spent and you have a ‘day job’.

    Against that backdrop, the threat of a lawsuit against my program is prohibitively expensive. No matter how innovative my program may be, the simple threat of a suit (viable or not) can be sufficient to scare me into terminating my endeavor.

    It gets much worse with people developing Freed software because, since the cost of distributing software is essentially zero, there is often no need to charge a direct fee for distributing a program that I developed to scratch my own itch and am now redistributin to the world in return for simple access to their upgrades to my program.

    If I have no direct financial return for distributing my product, where do I get the money to defend it against a patent troll? I can’t pay my lawyer in ‘good karma’ points. Nor do I have the money to pay to get patents on all of the innovations in my own program. Instead I’m left worring about whether someone at a big company is going to patent my work and then use it against me later.

    Most of the real innovation in the software world occurs at the hands of the small players, but patents are really only serving the big money monstrosities.

    Without the economies of scale afforded by small players and Freed software, almost none of the backbone processes that support the internet would not have existed. The free sharing of software meant that — instead of hundreds of mutually incompatible proprietary products, people were willing and able to share software that implmented the base standards of The Internet

    Email, the Domain Name system, common file formats, Web browsers, File transfer protocols and many other core (and peripheral) elements of today’s Internet Revolution have benefited from the standardization that comes from free sharing and community improvements to good software. It is often only once a free idea has found enough traction that it comes to the attention of commercial interests.

    Software patents threaten that process. They can make it dangerous and expensive to make and distribute truly innovative products whileproviding no real benefits to the vast majority of real innovators.

  56. “Take a product like MS Word. Much of the usefulness is in the UI design, though there are many text-processing features that are useful. Let’s just assume that a lot of what makes up MS Word is new and unobvious. Without the original and clever ideas of the software engineers and architects who built Word, those features would be unknown; not in this world. These developers and designers get paid by selling their product. They’re able have income while spending a couple of years working on a new version because of the way they are organized. That costs a lot of money.”

    You mean the same MS word that was recently accused of “stealing” those “clever” ideas? Oh yeah, that one. I remember.

  57. “I saw startups able to acquire funds and stop imitators with a well-written letter referencing their presumably valid patents.”

    As long as we change “valid” to “invalid” your entire piece makes 100% sense Hier. You intimidated others trying to write and use software for the benefit of your client.

    Fortunately, we may soon have this abusive practice ended. Who knows?

  58. PoIR: Perhaps this would be more apparent to them if you mention that a computer executes exactly *ONE* algorithm (from which all others are derived).

    The CPU goes through something called the “instruction loop.” There is a register called the IP (instruction pointer) which tells it where to find the next item on its “to do” list. The IP can (and is) modified by other instructions, but it increments by one instruction unless told otherwise.

    And I think he’s right. If we try to draw distinctions in the air (as we must to make some computer instructions [software] into patentable subject matter without making other computer instructions [music, video, etc.] into patentable subject matter, you’re going to get anomalies and create legal fiction.

    People are still upset over that proposed law from the 1800s that would’ve patented a circle-squaring method and claimed that pi is approximately 3.2. Pi, of course, is irrational (and trancendental) and that makes squaring the circle impossible, though you can make an arbitrarily good approximation and fool yourself, especially if you’re using an actual ruler and compass.

  59. I had a first career in software, network design and admin, sys admin, designing client/server systems, etc. Even now I custom build a lot of software tools for my practice. Free software like GNU’s CC compiler, GNU emacs, Perl, and countless others, were incredibly useful at an earlier time. At that time, I deplored software patents, and even saw danger in misapplied copyright law that edged to protecting function instead of expression.

    So I ended up at law school and then private practice. I worked with real inventors (developers often rewarded for their patents). Real venture capitalists, real people with real jobs and real material demands in life. I saw startups able to acquire funds and stop imitators with a well-written letter referencing their presumably valid patents. As much as I still admire the opensource community, their activities necessarily intersect with the activities of for-profit organizations that acquire patents.

    Take a product like MS Word. Much of the usefulness is in the UI design, though there are many text-processing features that are useful. Let’s just assume that a lot of what makes up MS Word is new and unobvious. Without the original and clever ideas of the software engineers and architects who built Word, those features would be unknown; not in this world. These developers and designers get paid by selling their product. They’re able have income while spending a couple of years working on a new version because of the way they are organized. That costs a lot of money.

    So they release Word, and along come the copycats. Copyright is no good because the copycats don’t copy the unavailable source code. They copy the form and function; the ideas. The UI innovations are easy to immitate (esp. w/ modern dev tools), so CC Word (CopyCat version of Word) looks a like like the real thing. The copycats can look at much of the functionality and understand generally how some things work, and imitate Word. Now, CC Word is close to the real thing, but best of all IT’S FREE!

    That’s right, the people who use CC Word don’t have to pay a thing. They get to benefit from the investment, time, and creativity of others without paying for it.

    So what I ask all the no-software-patents folks is, is this right? Is this the way it should be?

    What if the copycats are in fact a Chinese software firm selling CC word for 1/10th the cost of the real thing? Does that alter the answer?

    I think that what gets lost in this discussion is that a main premise of the pro-patent side is that what is patented is legitimate; it’s new and unobvious and but for the inventor the invention would not have been available for people’s benefit (at the time of invention and at least for some time after; a patent rewards not just innovation but coming forward with it early so that the benefit is available now not later). So arguments about invalid patents have nothing to do with whether software should be patented. If the PTO had trouble with pharma patents and issued a lot of invalid patents, would peopel start hollering to prohibit such patents? No. They’d try to fix the system.

    I don’t think you can just point the finger at the PTO. The patent “bar” has hurt the system also. Attorneys need to do a better job of telling clients not to file apps. Senior attorneys need to do a better job of training and overseeing the work of junior attorneys. Also, we need more software people on the attorney side of things.

    [BTW, Kelledin, not all algorithms can be described with a finite-automata/regex. Not even close. E.g., FSMs can't count ... can't tell you if the number of As is twice the number of Bs in a string]

  60. anon,

    You might consider investigating a concept called the Printed Matter Doctrine. Aside from the war of words concerning that doctrine that is waged between various posters here, the doctrine is good law and explains the distinction.

    PoIR,

    We will have to leave it at that. Clearly, in my view, you were the one that horrbily conflated patents and copyright. I simply used your advanced math concepts to show to you why you were mistaken. Either your advanced math concepts cannot work, or your premises cannot work. The end result was a glaring anomoly – but it was an anomoly of your making. Your posts at Gene’s site (and here) seem congenial. Your posts at groklaw were anything but. Which side of your face should I be looking at?

  61. @breadcrumbs

    I can understand why you feel this way. Please consider there are two sides to this story.

    Yes our discussions were long intense. I was willing to learn. I was also willing to explain. This is why my posts were long. I never made a mystery that I oppose software patents. This was clear all along during our discussions.

    You say I failed the challenge you set for me. I recall the answer you provided for the challenge involved among other things conflating the protection copyrights grant to the expressions of ideas with the protection of the ideas themselves. You found me faults for not conflating the two at plenty of places where I correctly made the difference. I know better than this. I decided I cannot learn law from something that contains such glaring mistakes.

    I didn’t answer for the simple reason the PLI blog was removed from the net shortly after you posted leaving no time for me to reply. I assure you you would have got a reply otherwise.

    I don’t recall having seen a notice on PLI asking the discussion to be transported elsewhere. The thread just disappeared from the net. I couldn’t go to IPWatchDog because comments there were still disabled at that time. I know because I tried going there.

    You invite me to “grow beyond my paradigms”. This invitation should go in both directions. Software is maths and I keep making detailed explanations on groklaw for those who want to learn. I repeat that the argument I made is not the one Gene Quinn has answered. I also don’t think the law has the ability to redefine the facts of technology or mathematics. I don’t think changing this opinion would be “growing”.

    I don’t want “to destroy patents”. I just think software shouldn’t be patentable because it is mathematics. I also think software patents have on software developers the exact harmful effects patents on maths would have in other disciplines relying on maths.

    In a debate like this both sides have an opportunity to learn from both sides. I explain how maths works and why I think software is maths. I think you have something to learn from me.

  62. “The big question is whether the instructions for telling an otherwise lifeless thing what to do are any less deserving of protection than the thing itself. In many mechanical devices, the instructions for telling the parts what to do are part of the design and cannot really be separated from it without destroying the physical device itself. ”

    It isn’t about whether it is “deserving” enough. Einstein’s relativity is novel, non-obvious, and useful, it just isn’t patentable subject matter. In current patent law (as I understand it), abstract things aren’t patentable. Software is abstract, so it shouldn’t be any more patentable than any other abstract thing.

    I have no doubt that there is logical structure to mechanical devices, but it isn’t the logical structiure, divorced from the device, that is patented, it’s the device as a whole. If you want, and you’re clever enough, you can take the logical structure and apply it to something completely different without infringing. There is no way to patent software without patenting an abstract idea.

    I don’t know if the ‘tied to a machine’ rule is the best way to avoid patenting an abstraction, but it seems to be a great improvement to me.

  63. “What computers have done is provide a way to separate the instructions from the actual device that executes the instructions. Now, nobody knows what to do about them.”

    I don’t see why the analogy to music isn’t more routinely applied here. Musical notes are instructions that are applied to devices to create sound. The device (instrument) is patentable. The musical notes, which are essentially mathematical algorithms for creating sound, are copyrighted. What’s so complicated about this distinction?

  64. David Wheeler said: “The software industry thrived, for decades, without software patents. Since there is no market failure, there is no need for government-enforced monopolies (patents) to make them thrive.”

    This is a core assumption which is very misleading. It is equally true that anyone having a truly innovative product soon had competitors using its differentiating functionality. If such a competitor were the likes of Microsoft, they would soon be out of business for obvious reasons. Lack of patent protection helped to create Microsoft; but as noted by others here, the existence of patent protection allows new innovators, such as Google, to thrive.

    AT&T developed Unix for its own use in telephone switching systems, not as a software product per se. It was not protected by patents, or was old enough such that such patents expired, such that Linux to be “modeled” on Unix without infringement. This oversight by AT&T is not likely to be repeated, ever; which means that Linux is likely to be a one time event.

    But the way Linux continues to be developed by what appears to be unaudited additions from the public cannot work to provide “clean” intellectual property-free code in an environment of patent and copyright protection.

    So, we have competing concerns where on the one hand patents clearly promote innovation and on the other (the Linux model) where patents clearly inhibit it. Perhaps, what the free side needs is a “compulsory” license in exchange for royalty payments into a pool managed by a governmental organization. Patent holders who could prove infringement could draw royalties from that pool.

    The same kind of thing could be done with new “standards.” If the government approved a new standard, anyone using the standard would have to pay a small royalty into a government pool and any patent holder could draw from the pool.

    Just some thoughts.

  65. PoIR,

    I find your comments disingenuous, and your past behavior dishonest.

    Our discussion at Gene’s website was long and intense. We covered many of the discussion point raised here and more so (remember the distinction between math and applied math)? We even covered your paradigms about advanced math and transmutability. You expressed interest in understanding a persepctive about patents from a legal standpoint, as opposed to the single world view of technology (remember – patent attorneys have feet in both worlds – you argue merely from one) I took the time to understand your very long posts and craft lessons for you to understand the legal perspective.

    You failed the lessons I set out for you. Failed miserably. You then failed to post further when I explained in great detail why you failed. You never did return once Gene’s transition from PLI to his current servers was complete.

    I tracked you down to groklaw, only to find that you completely miscontrued our discussion, joking with other groksters about how some lawyer just didn’t get it. You never had any real intent in understanding patent law.

    Perhpas you have changed in the year since we had our discussion, but from your posts above, I tend to doubt it. If you continue to engage in discussion only to seek weapons to destroy patents, you will never grow beyond your paradigms. Unless you want to understand the legal aspects of patents, your view will be insufficient.

  66. Just adding to Red Monkey’s point

    There is a fundamental difference between an analog and digital computer. Software is made of symbols and not measurements or circuitry. The implication is that when we look at what happens physically, software doesn’t “control” any physical process or device. It doesn’t have that capability. Let me give an example.

    Suppose I write some simple program in BASIC. Let’s say it is a mail merge program for the sake of the example. When I edit the source code in a text editor, the software is in the form of text. This text isn’t patentable because it is text.

    Now suppose I launch a BASIC interpreter and I load my program, what happens? The mail merge software is still text because this is an interpreter and not a compiler. Suppose you take the view that when you combine software and computer you make an apparatus that is somehow patentable. What is the apparatus? It is the computer and the interpreter. Can text be part of the apparatus? If so why can’t the same text in an editor not be patentable? What distinguishes the two apparatuses? But if the text cannot be part of the apparatus, how can you patent software?

    One of the points is the text of the mail merge program doesn’t control anything. The interpreter does. But it does so by interpreting the text. We can say the program is executed but not it executes. The interpreter does. This is what I mean by software is symbolic information. Letters, digits and punctuations are symbols that make the software.

    Now suppose the BASIC interpreter is written in Python. This languages isn’t compiled into executable code either. The source code is turned into numbers called byte code. There is a byte code interpreter that reads the numbers and interpret them the same way the BASIC interpreter interprets the text.

    Now what is the apparatus? It can’t be the computer + BASIC interpreter. It has to be computer + Python byte code interpreter. The BASIC interpreter is just numbers like the audio in an MP3 file. If you can accept a file of numbers in a patentable apparatus then you can patent music. You get there because the byte code don’t control anything, the byte code interpreter does.

    Now suppose you take the Python byte code interpreter an you make an ASIC out of it. What do you get? A CPU dedicated to Python programs. When you run your BASIC interpreter on this ASIC it is compiled into the machine executable code of this CPU. What does this do the the patentable apparatus?

    I can continue by pointing out there are software emulators for CPU instruction sets. Therefore even compiled code is sometimes data processed by other software.

    How do you get into such a quandary? It is because software doesn’t control, not even at the executable code level. It is avail passive data interpreted by something else. The only thing that controls is the hardware, the circuitry that is etched at the factory. Trying to patent an apparatus made of computer and software is the exact same thing as patenting an apparatus made of computer and data.

    Corollary: if the law insist to make a difference between code and data where is the line? Somebody that knows where the line lies will arrange his program so he falls on the side he pleases.

  67. Great post Ciaran,
    You have brought up some very good points on why software patents and business process patents should not be permitted.

    Software patents are severely hampering and limiting the software industry in many ways. They create unnecessary expense, risk, and undue burden for all. Hopefully the Supreme court will see the light on this important topic.

  68. “Kevin, you know that MUDs are the precursors to MMOs (like EverQuest, World of Warcraft, etc.) which are making millions, right? [Yes] What are you sneering at, exactly? [Not sneering; I just find the old school RPG names to be very, very hilarious] If anything, it means he is a computer geek who has been developing software for decades. [Agree] That means he almost certainly knows more about software development than you do. [Agree] So what’s the purpose of your sneering? Do you think you’re better than him or something? [Certainly not]”

    “Say that you can’t patent information itself, because that’s what software is. Alternatively, say that you can’t patent anything that is copyrightable, because that amounts to pretty nearly the same thing. Of course a patent may contain copyrightable things and may even require those things to work, but they shouldn’t be protected by the patent (though they may be protected by copyright).”

    I agree that nothing should qualify for both patent protection and copyright protection. I don’t think that copyright protection is a good fit for software because it practically only prevents someone from making an exact copy. I think that software should have more protection than that.

  69. PoIR makes a good point that software need not control gates. It is broader than that, since analog computers (e.g. an RC circuit functioning as an integrator) also need to be told what to do somehow.

    The big question is whether the instructions for telling an otherwise lifeless thing what to do are any less deserving of protection than the thing itself. In many mechanical devices, the instructions for telling the parts what to do are part of the design and cannot really be separated from it without destroying the physical device itself.

    What computers have done is provide a way to separate the instructions from the actual device that executes the instructions. Now, nobody knows what to do about them.

    It’s almost as if overnight someone figured out how to separate the soul from the body so that it could be transferred into other bodies. The confusion in patent law is just a taste of how the legal system would be thrown into a loop by such a development.

  70. “After all, isn’t that how the patent system is supposed to promote innovation?”

    I thought the promotion was in the granting of limited monopolies in exchange for information that would have otherwise not been public knowledge. If the point is to inspire people to work around your innovation, then why would you make it public knowledge?

  71. “If I tell you to raise your hand when I raise both of mine, and never raise your hand otherwise, are we doing math together? That’s what an AND gate does. Other logic gates are similar. Fundamentally, that’s what software does: it tells lots of gates to raise and lower their “hands” in particular ways at particular times. ”

    No software doesn’t do this. The circuitry of the CPU and other chips does. Hardware circuitry is not software. The circuitry is etched at the factory and never changes unless you physically connect equipment.

    Software is symbolic data. Bits are symbols that can be represented physically in many ways. In older days when computer memory wasn’t made of transistors loading software in memory didn’t set a single gate.

  72. Red Monkey: “If I tell you to raise your hand when I raise both of mine, and never raise your hand otherwise, are we doing math together? That’s what an AND gate does. Other logic gates are similar. Fundamentally, that’s what software does: it tells lots of gates to raise and lower their ‘hands’ in particular ways at particular times.”

    Um. That’s commonly referred to as “Boolean math” or “Boolean algebra,” so, yes.

  73. “If you want to cure rubber, there are many ways to do it. ” (is this a veiled reference to D v. Diehr?)

    On the contrary, there are many more ways to design around software methods than there are to design around a rubber curing method, simply because rubber curing is constrained by physical laws and software isn’t.

    The author’s suggestion that patents on standards like MPEG somehow stifle innovation betrays a lack of faith in our collective ability to render such standards obsolete. Already, standards like 8-track, beta, and laser disc have come and gone, in many cases in less than a patent term.

    It seems to me that those who complain about software patents simply lack confidence in their ability to design around such patents. Instead of wallowing in their patent-envy, they ought to take up the challenge and beat them at their own game. After all, isn’t that how the patent system is supposed to promote innovation?

  74. “If I tell you to raise your hand when I raise both of mine, and never raise your hand otherwise,”

    That depends on whether or not you tell it to me in a way that a machine that understands nothing but bits would understand. If the later, then yes, I can’t imagine how we wouldn’t be doing math. Although, don’t get me wrong, perhaps there is some way, yet to be invented, for such a thing to occur though.

  75. Software is all math?

    If I tell you to raise your hand when I raise both of mine, and never raise your hand otherwise, are we doing math together? That’s what an AND gate does. Other logic gates are similar. Fundamentally, that’s what software does: it tells lots of gates to raise and lower their “hands” in particular ways at particular times.

    Maybe I skipped math class the day we covered this.

  76. > software is pure math” Baloney. You don’t type
    > numbers and equations into your source code, do you?

    Note the following expression:

    r = (ab+b)* + (a + ba)a

    This is a “regular expression” in automata theory. It’s a concise way of describing a finite automaton–a state machine that takes inputs, goes through a series of defined state transitions, and produces outputs. (This is not the same as a POSIX regexp BTW–it’s an expression using syntax specific to automata theory.)

    Every software algorithm can theoretically be described via a finite automaton, which can in turn be reduced to a regular expression. You may not consider a regular expression to be “math,” but a lot of people wouldn’t make the connection for a series in sigma notation either.

    Source code is merely a more expressive, more readable way to describe the algorithm than a regular expression. It’s what humans typically use to write algorithms because it is easier for humans to track, understand, and maintain. The expressive element is what (rightly) entitles source code to copyright protection. The fact that the underlying algorithm can be converted to a relatively concise regular expression should normally disqualify software for patent protection.

    In fact, for the same basic reasons (the fundamental “math-ness” of software), the law once explicitly disclaimed patent protection for software, until a screwball circuit court decision set a case-law precedent that had unintended consequences. That decision was a mistake that badly needs to be rectified.

  77. “OK, so the 1’s and 0’s in a computer memory form a really big number. And you can’t put more into a memory than will fit. Looks like “math” to me. But if these are the biggest insights of recent computer science, then I’m glad I switched to EE.”
    This isn’t recent computer science, it’s much older than that. Godel’s incompleteness theorem is from 1931, the Turing machine is from 1936, and Konrad Zuse made the first turing-complete computer in 1941.

    “But what’s the point? Fine, software is math. You can’t patent software (math) in the abstract. But I’m not claiming software (math) in the abstract, I’m claiming machines that may use software.”
    The problem with software patents is that you aren’t trying to patent the machine. The machine may already be subject to many patents, but you aren’t trying to patent circuits, you’re trying to patent the information given to those circuits.

    Any turing complete machine is equivalent to any other turing complete machine, so claiming a turing machine + algorithm is no different from claiming the algorithm itself.

  78. @Anonymous-
    RE:”I’ll summarize the above post (so as to criticize it): ”

    “the free software hippies” ?, name calling takes away from your point, because many of those are top programmers as I believe you well know.

    Imho: Software patents, have become a money machine for some, without review of just how many patents cross in claims. The fix to that problem is patent deals to protect the house of cards that is the heart of the money machine. If the Court would end this with a ruling doing away with software patents, the money machine grinds to a fast stop, that to some is a world ended. The ride should end for software patents that worth is hard to place on anymore because of claim tricks, as I mentioned above, have patents (software), cross over each other in claims because without one hand knowing what the other 500+ hands are doing. This rope if all knots taken out, would open a door for so many questions about the “value” of patents as a whole. The Court must know about the house of cards the patent system is, along with other ideas not limited to opensource, are working to some points adding value and not just money machines is a means to a better future’s end.

  79. @BigGuy

    “But what’s the point? Fine, software is math. You can’t patent software (math) in the abstract. But I’m not claiming software (math) in the abstract, I’m claiming machines that may use software.”

    And how do you define this machine you are patenting? Are you patenting the computer? Or are you patenting something else?

  80. “The meaning of the bits in this number is predetermined by the engineers that chose the CPU instruction set because a program cannot include any instruction that is not explicitly provided for in the CPU circuitry. There is a finite quantity of programs that will fit in available memory. A programmer can only select one possibility among those that were specifically allowed by the engineers that designed the CPU circuitry. These possibilities are mathematically defined by human engineering decisions made at the time the CPU was designed. This is just a few of the reasons why software is maths. There are a lot more to add but I can’t put 30 pages of computer science in a blog comment.”

    OK, so the 1’s and 0’s in a computer memory form a really big number. And you can’t put more into a memory than will fit. Looks like “math” to me. But if these are the biggest insights of recent computer science, then I’m glad I switched to EE.

    But what’s the point? Fine, software is math. You can’t patent software (math) in the abstract. But I’m not claiming software (math) in the abstract, I’m claiming machines that may use software.

  81. @breadcrumbs

    You mean Gene’s article explaining why software isn’t maths according to him? He ignored all arguments based on computation theory which is the mathematical basis that makes computer work. He preferred refuting arguments that were NOT being made.

    You want us to help him retrieve the pearls of wisdom? Been there, done that. The information has been posted on Groklaw. Even more information have been posted on Gene’s own blog at the Patent Law Institute. But the people at the PLI preferred to delete the whole blog so this information is gone.

    To make a long story extremely short, the argument is NOT software uses numbers and equations so any refutation based on this idea misses the point entirely. The argument is (1) all source code has a mathematical meaning defined by its denotational semantics and (2) the hardware can’t do anything that is not mathematical because this is how the CPU circuitry is constructed. Gene never answered to that. There can be no answer because this is well established computer science.

    Changing topic, the idea that writing software is equivalent to finding a number is well established in mathematics. In computation theory this is called a Godel number and mathematicians regard this discovery as one of the greatest achievement of the 20th century. Do a little research on the Church-Turing thesis and the Godel incompleteness theorems and you will know what I mean. But there is way to express this same idea without resorting to advanced mathematics. The bits of the program in memory are making a huge number in binary notation. You can’t write a program that is not among the possible combination of bits in memory, which means you cannot write a program that is not a number.

    The meaning of the bits in this number is predetermined by the engineers that chose the CPU instruction set because a program cannot include any instruction that is not explicitly provided for in the CPU circuitry. There is a finite quantity of programs that will fit in available memory. A programmer can only select one possibility among those that were specifically allowed by the engineers that designed the CPU circuitry. These possibilities are mathematically defined by human engineering decisions made at the time the CPU was designed. This is just a few of the reasons why software is maths. There are a lot more to add but I can’t put 30 pages of computer science in a blog comment.

  82. > It’s easy to say that you can’t patent E=mc^2, but where does one draw the line with software? To be completely fair, there are probably some things that could be called “software” that should not be patentable subject matter, but there are other technologies that could also be called “software” that legitimately should be patentable subject matter.

    Say that you can’t patent information itself, because that’s what software is. Alternatively, say that you can’t patent anything that is copyrightable, because that amounts to pretty nearly the same thing. Of course a patent may contain copyrightable things and may even require those things to work, but they shouldn’t be protected by the patent (though they may be protected by copyright).

    That’s the easiest way to go about it, without having to decide everything on a case-by-case basis or wrangle too much over things near the edge for many definitions, like CPU microcode or FPGA configurations.

  83. Curtis Veit says:

    ” I found many patents with mechanical and hydraulic ideas patented that where obvious to me based on a basic understanding of physics and engineering.”

    Please post the U.S. patent numbers of a sampling of these patents.

  84. Sabik says:

    “Indeed, in the field of video playing software, someone has. Can you imagine the utility of an innovative video playing program that can’t play the vast majority of existing videos?”

    What is the number of that U.S. patent? Are you referring to any claim in particular?

    Please post so we can all take a look at it and discuss it. Thanks

  85. Kevin, you know that MUDs are the precursors to MMOs (like EverQuest, World of Warcraft, etc.) which are making millions, right? What are you sneering at, exactly? If anything, it means he is a computer geek who has been developing software for decades. That means he almost certainly knows more about software development than you do. So what’s the purpose of your sneering? Do you think you’re better than him or something?

    Oh, and to that guy who seems to think that patents aren’t math, I hope you’re not using any of the arguments that IEEE guy wrote in the amicus brief.

    I *am* a mathematician. He wasn’t. He was full of crap. X = X + 1 isn’t “nonsense” in math, it’s basically the successor function, from which the integers are constructed (and the integers are used to construct the other kinds of numbers: rational, real, imaginary, complex, irrational, trancendental and many other less-used types you probably haven’t heard of). Despite what he implied, actual mathematicians are well aware of the difference between assignment and equality. Granted, the definitions we use are actually a lot more complex than what he was discussing, but really, go see link to us.metamath.org if you want to know just how much is involved in proving something like 2+2=4 from basic axioms.

    Oh, and that link to Metamath was no accident. You see, they’re exploring the very useful equivalence of math and software. Their computer program *is* ZF (the set of axioms that underlies every bit of math you’ve ever learned and then some). You couldn’t do that without the Curry-Howard correspondence.

    But I bet you guys who rant about how software is “different” from math don’t even know what that is and will try to tell me that software merely “uses” math or that numbers are different from other kinds of precise information (in spite of Godel’s proof to the contrary). I find it funny that I’m able to cite all these proofs, which are well-known to mathematicians, but not one person has been able to explain what’s wrong with them. I get these hand-waving answers about how they don’t apply because you don’t want them to or something. I mean, it’s not like you have any mathematicians on your side of the argument who could disprove them, or come up with a mathematical proof that there’s some fundamental non-equivalence. At best, we got a bit of name calling, saying that the equivalence is “cosmetic” (whatever that means), as though Metamath.org didn’t exist.

    But that’s why you’re not mathematicians. Mind you, I have studied engineering as well, just like the IEEE representative (I was once an IEEE member, no less). Learning how to do some nasty-looking differential equations, even ones involving partial derivatives and matrices, will not make you a mathematician (I did them too!). Especially not when all the proofs concerning the equivalence of math & software are part of a different mathematical domain than anything in the standard engineering curriculum, even though EEs did enough coursework to get a minor in mathematics at my college.

    It’s just as bad as having a non-lawyer, trying to explain the law. Judges wouldn’t put up with someone who didn’t appreciate “minor” legal details the difference between “void” and “voidable” contracts. Similarly, I get upset when people try to tell me that software “isn’t” math because they don’t think that math is allowed to contain loops, conditionals, assignments, or any of the other things they never learned how to do in school. If anything, I want to sit them down and teach them Newton’s method and ask them why it’s “doing math” if you do it by hand in math class, but “software” if the computer does it. And if they admit that that is math, I’ll give them a matrix representing the pixel values of an image and have them multiply it by another matrix to rotate it. And while they plot the values with a set of magic markers, I’ll ask them why this plot is different from all the other plots they made in math class…

  86. First, for those who have said that a rebuttal is needed to keep the site balanced: Those that are for software patents have spoken from their pulpits already, this seems to me to be rebuttal for those numerous efforts.
    Second, for those on both sides of the issue: How many of you have done patent searches to find related patents to your research and development? I have and what I found when doing this was shocking to me.
    My background: Electrical/Electronics and Software Engineer. Working at an aerospace firm in R&D for production equipment and processes.

    Shock #1: I found many patents with mechanical and hydraulic ideas patented that where obvious to me based on a basic understanding of physics and engineering. These items were outside my core disciplines. Conclusion: The Patent Office does a lousy job of vetting for uniqueness and prior art. Based on the idea of a practitioner being someone that is well versed in the art, perhaps a Phd level person, it seems apparent that the PTO has few people at this level to ensure that we are not closing off access to basic engineering ideas as taught in school though the current patent process. The current process needs a substantial overhaul.

    Shock #2: A cursory search for a handful of the software concepts that we felt had some possibility of patentability took me longer than the time it took to write and test those sections of the software. Note this was only the preliminary search for possible related patents. It did not include any significant analysis of existing patent claims as related to our development. Conclusion: A real patent search and analysis to ensure our software did not infringe any ones patents would take a minimum of ten times the actual development time. (Some of our engineers thought it could be much higher.) This was in the early 1990s when there were relatively few software patents. We decided to have a policy of not reviewing any software patents.

    What you need to ask yourself is if software customers are willing to pay ten times as much to provide for their software needs. Will software companies be able to afford development and marketing to the reduced customer base that an environment such as this will produce.

    A comparison for those of you that practice law: The practice of engineering in a patent rich environment can be compared to a legal system that requires a new, unique legal argument in each new case. What if a legal argument after having been used once was then unavailable for your use. Accidentally using an argument that was used in a case you were unfamiliar with results in an automatic loss in the case.
    “Ah, but we allow licensing of patents”, you say. Fine, what if every argument you use that has been used before requires you to find the originator and obtain a license. How many arguments and motions are in a typical case. What if the originator refuses to license the argument to you. How would this affect the practice of law. (Makes patents seem a little less desirable doesn’t it.)

    In the case of large software projects there can be from thousands to tens of thousands of unique small concepts used. The cost of ensuring that you have a non-infringing products is mind-numbing. (There are many solid arguments as to why software should fall under the auspices of copyright rather than patents that have been covered elsewhere.) Given the rule that the purpose of patents is to encourage innovation and progress in the various arts I would have to say that a factual examination of the real cost of ensuring a software product is unencumbered by patents will show that no software company can actually compete and innovate if they are footing the bill for the necessary patent examination costs. Thus the case for allowing software patents should fail as it cannot encourage progress in the art.

    Others have covered in detail how software companies deal with patents today. Basically the strategy is to never read patents as it will increase the damages. They chose to develop software as though there is no such thing as a software patent. Then later if sued they deal with it at that point. Note that as the number of software patents increases this approach becomes less tenable.

  87. article: “Can you imagine the utility of an innovative word processor that can’t read any existing documents?”

    curious: “Really, someone could have obtained a patent that broad? Really?”

    Yes, yes they could have.

    Indeed, in the field of video playing software, someone has. Can you imagine the utility of an innovative video playing program that can’t play the vast majority of existing videos?

  88. @Hierarchy: “It’s a fallacy to say that because A does well without X, A should not have X. The question should be does A do better with X, or does X make A worse?”

    With regards to patents, no, it’s not a fallacy.

    You have to keep in mind, there is a known, acknowledged detrimental effect to allowing patents: they limit the accessibility of a technological advancement. The only basis for allowing patents is that a supposed benefit to society (incentive to innovate and subsequently publish) is expected to outweigh this detriment. This supposed benefit is generally not assured.

    It follows that the default assumption, absent compelling evidence to the contrary, should be that the net effect of patentability in a field is detrimental. It further follows that whenever patents get a green light for a given field, the effect needs to be monitored, and those in charge need to be prepared to pull the plug if things go wrong.

    For mechanical inventions, particularly those that led to the industrial revolution, the benefit of patentability was obvious, especially in hindsight. Patents on mechanical inventions have been a resounding success.

    For pharmaceutical advancements, it’s a bit more questionable. Patentability appears to have encouraged more rapid advancements, but it’s also created a culture of greed and corruption among Big Pharma that has often encouraged doctors and pharma reps to play games with patients’ health.

    For software advancements, patentability has turned out to be an abject failure. We have the USPTO flooded with applications for junk software patents, and we have these junk software patents being wielded solely for the purpose of extracting a toll on commonly-used, trivial pieces of software tech. Significant sources of software innovation (including various open-source projects) are in danger of being squelched out of existence.

    On top of that, there’s a participation component that feeds into software value: often, the more people use some piece of software tech, the more valuable it becomes to society (the Internet is a perfect example of this). This means the detriment of restricting usability is heavily compounded for software advancements.

  89. Great article, but I have something to add. Patenting software is in effect patenting a ‘thought process’. Nobody needs to show any source code, so there is no true ‘defined’ algorithm which is patented. Just generalizations. Just words written in English which often can have mixed meanings and ill defined extent of coverage. Nothing you can check, compare, or validate. Only phrases to leverage accusations making for long legal battles that can last years and have absolutely no benefit for society, as was the reason for the Patent System in the first place. None.

    Patenting software is like patenting ‘the concept of turning left’ at an intersection. Yes, you can make three right turns, but then you have still effectively turned left as far as anyone outside your source code base can tell. Try to prove to an outsider that you didn’t turn left. The source code would tell the entire truth, but the Patent Application does not.

    What is worse, is that if you take five seasoned programmers and lock each one in a different room to think on the exact same problem they will almost always come up with the same ‘conceptual’ algorithm. No turning left guys! Sorry. I patented it already. From now on anyone that needs to turn left will have to drive right over my brand new Troll Bridge and pay me for having the same thoughts I did a month ago. Never mind that both the Physics of the situation and pure Inductive Logic prevent anyone from picking another route. This algorithmic bridge belongs to ME. Made three right turns, did you? Sorry, my wishy washy Patent claim says you owe me. Pay up, or you can just try to prove me wrong in court.

  90. broje: “I think you will find a lot less people are sympathetic to the plight of the open source crowd than you might think. Why don’t those people go build new and different platforms, instead of all playing follow the leader? Patents promote variety.”

    That statement frankly displays a great deal of ignorance on your part.

    In case you’ve forgotten, the Internet (one of the most socially beneficial, universally accessible platforms brought to us by software/network engineering) was and is built largely via open-source technology, or at the very least, collaboration between parties that agreed to release their technology from patent encumbrances.

    On top of that, go look up ATCA, a platform used heavily for critical functionality in almost any telco carrier you can name. Linux and other open-source software are generally the de facto software stack of choice for any ATCA component that runs an OS. For many of the architectural advances in ATCA (such as HPI), open-source implementations are frequently the first and most advanced implementations.

    The same is largely true of SSI or similar supercomputing cluster technologies, such as the Linux clusters dominating the top500 list.

    Others can probably name other areas where the open-source crowd has made pioneering platform advancements to solve nontrivial, highly complex engineering problems. Claiming open source is a pure “follow the leader” movement is not a credible claim and hasn’t been for years.

  91. mike –

    I hear you. I’m not sure that I have a good argument in support or against software patents, but I do question the feasibility of exempting the specific class of “software” from patent protection. It’s easy to say that you can’t patent E=mc^2, but where does one draw the line with software? To be completely fair, there are probably some things that could be called “software” that should not be patentable subject matter, but there are other technologies that could also be called “software” that legitimately should be patentable subject matter.

    I guess my feelings are that close cases make bad law. And I can’t judge whether it would be better to award patent rights to the “software” class that arguably does not deserve patent protection or to deny patent rights to the “software” class that arguably does have a constitutionally protected right to secure a limited monopoly to promote the progress of science and the useful arts.

    Oh, and I’m a lawyer, so you have to believe me :P

  92. If music were invented which had the effect that when played it automatically put everyone within ear shot into such a deep sleep that surgery could be performed on them without any anesthetics, then I believe that it should be patentable subject matter

  93. “Frankly, there is a lot of garbage and rhetoric here from the anti-software crowd that has been summarily disposed of at the IPWatchdog’s site about a year ago.

    Math. Creative Writing. Promotion not needed (as if the constitution says promote with an asterisk). – All of this has been answered. ”

    I’ve never seen it answered satisfactorily. I’ve seen lots of “It isn’t math because it isn’t numbers”, “Patents = good, I’m a lawyer so you have to believe me”, and “The system is fine, except for the parts that aren’t, so leave it alone.”

    If there are any good arguments over there, would you mind posting a link?

  94. @ David A. Wheeler

    “Software is already (and perfectly adequately) handled by copyright law, where re-development [independent creation???] IS a defense. This duplicative overlap is harmful to the country. Software and patents need to get a divorce.”

    link to dwheeler.com -> “About Me”
    -> link to dwheeler.com

    “I was the maintainer of Scepter of Goth. This was the first commercial multiplayer Role-Playing Game (RPG) in the United States; it may have been the first in the world, depending on how you date the commercialization of Scepter and of Bartle’s MUD / British Legends.”

    HAHAHAHAHA!!!!

  95. David: “The software industry thrived, for decades, without software patents. Since there is no market failure, there is no need for government-enforced monopolies (patents) to make them thrive.”

    It’s a fallacy to say that because A does well without X, A should not have X. The question should be does A do better with X, or does X make A worse? Let’s go back in time to the pharmaceutical industry. There are not any patents. Companies are making drugs, and they make a profit. There are lots of drugs available to help people. Now under your reasoning, because the pharmaceutical industry is thriving, it doesn’t need patents. In fact, if you took away drug patents, companies would still make and sell drugs and make money, so we don’t really need patents for them to thrive.

    Also, could you post a link or reference to a study showing that software patents _cause_ research spending to go down?

    Software is useful and beneficial and it’s just the kind of thing that the patent laws were designed to promote. So what people resort to are policy reasons to justify excepting “software”, whatever that is. The policy reasons have been debunked over and over. I see it like this. Software is an “industry”, where people earn livelihoods, capital is invested, etc. You can’t have a situation where people invest and innovate and others get to copy their ideas for free and then either profit from those ideas or reduce the innovators’ profits by giving the ideas away for free.

  96. Frankly, there is a lot of garbage and rhetoric here from the anti-software crowd that has been summarily disposed of at the IPWatchdog’s site about a year ago.

    Math. Creative Writing. Promotion not needed (as if the constitution says promote with an asterisk). – All of this has been answered.

    Why don’t you anti-software, groklaw geeks help Gene figure out how he can retrieve the pearls of wisdom?

  97. “There was a time when if you wrote something, you owned it, you could sell it, you could give it away. It could be put in the accounts and it could be used as the base for collaboration. Now, ownership of a piece of software is hopeful speculation. There is no reliable way to have a settled expectation regarding the boundaries or the extent to which you own a piece of software. This uncertainty, and this unfair regulation is what the Supreme Court has the chance to rid us of by giving the USPTO a reliable tool for excluding software ideas from patentable subject matter.”

    I DOUBLE FLIPPIN’ DARE YOU TO DEFINE “SOFTWARE”

  98. “In my world, if the idea is new and unobvious the inventors are entitled to own and profit from their idea.”

    It’s a good thing we don’t live in your world then isn’t it?

    “Where you and I differ is the solution.”

    What was your “solution”? I must have missed it.

  99. The software industry thrived, for decades, without software patents. Since there is no market failure, there is no need for government-enforced monopolies (patents) to make them thrive.

    Even worse, software patents are DISCOURAGING innovation. Recently software patents have been permitted, and all the actual STUDIES (as opposed to patent lawyer guesswork) show, that as the patent applications go up, the money spent on RESEARCH goes down.

    And perhaps worse of all, software patents make it dangerous to develop software at all. No software practitioner can read the thousands and thousands of software patents that are granted, nor can they be understood even if they read them. Thus all software developers MUST ignore patents to get work done. Under patent law, ignorance of the patent and re-development is not a defense, yet that is the only way you can actually get work done.

    Software is already (and perfectly adequately) handled by copyright law, where re-development IS a defense. This duplicative overlap is harmful to the country. Software and patents need to get a divorce.

  100. Malcom/Marc Mooney/Mengel,

    “if … odds … if … if ” Are you suggesting that all bio inventions require a lab to be patentable or to even procure a patent? You think an assay has to be practiced before it can be adequately described?

    All your premises, even if true, have no bearing on whether any particular invention merits a patent. You confuse ease of practice and implemntation with ease of conception. Not the same thing at all. UI patents are a nice example. Suppose a UI team is aware of some problem, like a common task that takes a lot of UI interactions and is slow to complete. The team looks at the problem closely. The decide they need to first understand how people are really using the UI. They spend money for a useability study. They figure out that users are constantly moving between two ephemeral user interface elements. So they figure out a way to improve the proximity of the user interface elements yet without affecting screen real estate or usability. The technique is pretty clever. Others who work on the same type of software and who have the same type of UI elements have even tried to solve the same problem, but they couldn’t come up with anything satisfactory. The feature is mentioned with favor in the press, and sales increase and users are more productive.

    Now it turns out that the invention is pretty easy to implement (as all software is, _once_ you have the blueprint). Easy to implement, hard to conceive. There’s a big difference.

    Now in your world, the competitor is free to copy the idea, to hop the turnstyle without paying. In my world, if the idea is new and unobvious the inventors are entitled to own and profit from their idea.

    I think, sadly, we’re of a same mind in some way. The problem with software patents has been a low bar on obviousness and other requirements. Too many allowed claims have I read where I had absolutely no idea what the claim was describing. Too many obvious and trivial inventions. Where you and I differ is the solution.

  101. “This true in all fields. ”

    Not true for a lot of the patents in my field. Probably not true for nearly every one of them that gets issued.

    “You seem pretty ignorant about the field of computer science. ”

    Actually I’m pretty well versed. I have books about it at my house thanks.

    “demonstrates the Patent Office’s inability to distinguish the obvious from the novel, ”

    I think you mean, demonstrates the PO’s lack of balls in standing behind rejections and then the courts backing them up.

    There’s a difference between the two statements.

    “well the answer is yes, we do, but that is not even the point. ”

    I know right? I was going to post that, but I know he’ll fire back with some innanity due to his misunderstanding what he’s doing when he’s using C++ skript kiddying. Then I’ll just waste more and more times pulling back layers for yet another noob to the blog. Imma let you handle that part K Marc?

    “How much time have you spent developing commercial-grade software? ”

    I guess that depends on how many sales are required to have been “developing commercial-grade software”. If I had to take a guess, probably a few months.

    “One last thing. Do you participate on Patently-O while you’re supposed to be working? The rate you post at is inconsistent with a full work day. You ripping off us taxpayers?”

    ALL THE TIME!!!!!!!!!!!!!!!!!!!!111111!!!!!!!! But it doesn’t rip any tax payers off, we’re applicant funded so far as I know. And most of my applications are from foreign sources.

    “Whose cases are you short shrifting so you can meet your count requirement? You have no business examining patents with the types of biases you have.”

    Do you need serials or names?

    Actually I have quite a lot of business examining patents with the “types of biases” I have. I have no “biases” except in so far as the law demands. And the truth is, I’m not really in a position where my “biases” really have a chance to flourish.

    ” “Programming Pearls” by Bentley.”

    Why not just bring me your copy and let me borrow it, I’m sure you know it by heart. I’ll trade you a big book on a Useful Art for that book for awhile. It’ll get you started down a path to making patentable inventions. I promise. :)

    ” What difficult computing problems have you solved?”

    Some that I remember were the horse racing one, I think that one was bubble sorting or something. And I also “solved” the “difficult” problem of how to multiply and divide numbers on a machine that doesn’t have a syntax for multiplication or division of 16 bit number fields (that division one is harder than you might think). I also assisted in writing the code and designing the operation of a business process specific calculator for a local business at which I was employed (complete with user prompts!!!!!!111). I also assisted in programming an assembly line that would later transport cargos worth millions of dollars every minute of every day. I hard wire “programmed” or designed a chip to control a hypothetical robot that performed various functions. Functions that included requiring some very complicated design.

    So maybe more than 2 mo. Idk that was a wild guess.

    What about any of that?

    “. Loudmouthed, smarmy, ignorant, and worst of all, an endless supply of drivel and somehow the time to type it. I almost forgot that the only way to deal with that type is to ignore. They thrive on attention and contention. This is the last time I’ll read or respond to anything you write, as I have better ways to waste time. ”

    Why didn’t you put that first? I would have simly ignored your whole post.

  102. I like how people who give away a software program whose replacement cost is valued in millions, if not billions of dollars, for free to everyone are described as “hippies” by some ingrate who doesn’t believe that patents have any actual requirement to “promote the Progress of Science and useful Arts.” Or worse, that the government should be able to arbitrarily limit that in the pursuit of profits (mostly for patent lawyers*), which have somehow become the de facto measure of “innovation.”

    Translation: We free software people are actually innovating more than the people who got patents issued for doing X online, so if the courts believe *at all* that they should “promote the Progress of Science and useful Arts,” they have to recognize that software patents will destroy free software. No one can assume millions of dollars of potential legal liability for free.

    * See link to thepriorart.typepad.com

  103. Mengel: rather it says that their software ought not be patentable, any more than the various CD’s that go in your patented CD player ought to be seprately patentable.

    “But the CD should be patentable because it turns the CD player into a new machine. For example, it turns a muzak-producing machine that helps you sleep sleep into a heavy metal-producing machine that makes you want to bang your head.”

    (actual argument heard here every day)

  104. I second pretty much the entirety of Marc Mengel’s comment. We wouldn’t be having this discussion if the PTO could pull it’s head of its axx with respect to examining software and related computer-implemented bullcrap. Think Kappos will change any of this? Don’t bet on it.

    Hierarchy This true in all fields. Think you’ve figured out how to measure oxidative stress of mitochindrial RNA, and you have the expertise to know how and that it will work, you deserve to profit from your ingenuity and (likely hardearned) knowledge, even if you can’t afford a well-equipped lab to verify your conclusion.

    News flash: if you can’t afford a well-equipped lab to verify your conclusion, the odds are slim that you are going to get a claim issued, much less a broad claim covering all practical embodiments of the concept, even if you’ve got Nobel prize winners (who never lie) backing you up. And if do you manage to slip one past the over-educated pitbulls at the USPTO, it’ll be found invalid the moment you sue the “well-equipped lab” who reduced an embodiment to practice that you failed to describe in detail in your application.

    So, no. Not true in all fields, by a long shot.

  105. “You know what people will really notice? How truly rude pro-patent folks here are.”

    Yeah, right. If only we had Mooney and 6 on our side.

  106. Rod Anderson writes:

    ” A programmed machine is still a machine. Indeed, to the outside world, a programmed general purpose computer operates identically to a computer built with custom-hard-wired logic to accomplish the same function. Distinguishing patentable subject matter because it is “software” is like denying patent protection to car engines with electronic ignition control while granting patents to engines that have a distributor and points.”

    By that argument, the vast majority of computer patents should never have issued, since mechanical items which already perform those tasks, or pencil and paper approaches for performing them, already exist. Instead what has happened is that the patent office treats “perform task x” as distinct and different from “perform task x using a computer”, and issues patents all across the map, even though it is an obvious and repeatedly performed task to take paper and pencil systems and replace them with computerized ones; or to take mechanical or electro-mechanical control systems and replace them with similar computer hardware/software configurations. This blatantly obvious application of computers to replace existing non-computer-based systems has been patented over and over again, even when there is nothing the least bit clever or innovative about the software involved, demonstrates the Patent Office’s inability to distinguish the obvious from the novel, at least in the arena of software.

    There is also the difficult semantic ground of separating software and mathematics. American Cowboy pooh-pooh’s this with “Baloney. You don’t type numbers and equations into your source code, do you?” — well the answer is yes, we do, but that is not even the point. The mathematics of finite state machines and Turing machines, which are the mathematical models of software, were defined long before digital computers were actually built, and demonstrated that computational algorithms are in fact mathematically equivalent to sequences of numbers, and of course that’s all that is on those software CD’s and DVD’s you buy and seek to patent — long sequences of numbers, generated by mathematically converting formulas and numbers typed into a computer. It’s math and algorthms represented as a series of numbers converted by math and algorithms into another in some way equivalent series of numbers all the way through.

    So there are two very strong arguments which show why software should not be patented:
    1) the patent office’s inability to distinguish innovation versus obviousness in relation to software
    2) the mathematically provable fact that software is mathematics

    Note that this is not to say that computers ought not be patentable; rather it says that their software ought not be patentable, any more than the various CD’s that go in your patented CD player ought to be seprately patentable.

  107. “‘software is pure math’ Baloney. You don’t type numbers and equations into your source code, do you? ”

    Numbers and equations actually show up in source code on a regular basis, but that is missing the point. Math is not limited to numbers and equations. Algorithms are math. Software is composed of algorithms. Hence software is math.

  108. MM: “no software need ever be written or manufactured to obtain a patent.”

    This true in all fields. Think you’ve figured out how to measure oxidative stress of mitochindrial RNA, and you have the expertise to know how and that it will work, you deserve to profit from your ingenuity and (likely hardearned) knowledge, even if you can’t afford a well-equipped lab to verify your conclusion.

    6: “HOLY SHT?!?!?!?!?!?!?!?! YOU NEED TRAINING (OR BE SELF TAUGHT FROM A BOOK) AND A COMPUTER?!?!?!?!?!?!??! WHERE COULD I GET THOSE FOR FREE? HMMM, PUBLIC LIBRARY PERHAPS? AT THE DUMP? CRAIGSLIST? Then I’ll be on my way to doing ACTUAL software development!!!!!!!!! Wooot!!!!!!!”

    There’s the rub 6. Since it’s so easy, a LOT of things have been done already. The pool of prior art is vast, almost limitless. I’ve shot down patent assertions based on USENET threads from 20 years ago. In software, the exact same wheel has been reinvented a thousand times. Anyone can write software (and I’ve done it, and seen the difference between offshore cr*p and software written by the gifted). So, in fact you have to be pretty clever to come up with something new and unobvious. Things are so easy, logical … ideas can map so easily to software, so the ideas have to be pretty darned good.

    You seem pretty ignorant about the field of computer science. Go to the PTO library and see if the have any copies of “Programming Pearls” by Bentley. 6, your views are the product of ignorance, the worst kind of ignorance — you’re ignorant of how ignorant you are. How much time have you spent developing commercial-grade software? What difficult computing problems have you solved? What CS program did you graduate from? What were your grades (I hear the PTO is a great haven for mediocre C-level students)? How many programming contests have you entered and won? 6, all you know how to do is use google and run your mouth. People like you and Mooney think software is easy. You think RSA’s technique for asymmetric encryption was done by a guy who taught himself at the public library? That was as obvious as all the rest, wasn’t it?

    Why don’t you enter Google’s programming contest (link to google.com) and post a few of your solutions? Why don’t you post some new solutions to the problems in Programming Pearls?

    One last thing. Do you participate on Patently-O while you’re supposed to be working? The rate you post at is inconsistent with a full work day. You ripping off us taxpayers? Whose cases are you short shrifting so you can meet your count requirement? You have no business examining patents with the types of biases you have.

    I’ve been using the Internet since 1988, and I’ve seen your prototype in a hundred different forums. Loudmouthed, smarmy, ignorant, and worst of all, an endless supply of drivel and somehow the time to type it. I almost forgot that the only way to deal with that type is to ignore. They thrive on attention and contention. This is the last time I’ll read or respond to anything you write, as I have better ways to waste time. AMF

  109. @red floyd, just asking

    And to add to that, MS Windows until fairly recently also had support for the same Unix API (called Posix). They removed it in Vista, if I remember right.
    The Unix API is open, it is documented in a number of books. Anybody is allowed to write an operating system that conforms to these rules.

  110. “Pardon me if I am wrong, but didn’t Linux essentially just copy Unix, which was developed by Bell Labs rather than being an open source venture?”

    Linux may have been MODELED after Unix but there is absolutely NO proof to back up the speculation that it is in any way a copy!

    Linux is a copy of Unix like the Telsa Electric car is a copy of the 65 Mustang. They both have 4 wheels and turn signals…. It must be a copy…. Right?

  111. “This right to exclude could theoretically prevent the free software hippies from continuing to work on GNU/Linux.”

    I’m not sure if I should find it funny or sad that this was posted on a web site that runs on Linux, Apache, and PHP.

  112. @Just Asking | Nov 06, 2009 at 03:08 PM

    Not quite. Linux essentially has the same API (the way that programs talk to the OS) that Unix has. It’s an independent re-implementation, the guts are completely different.

  113. Patents are not a right, they are an exception to anti-trust law. There is no need to make an exception to Anti-trust law in order for software innovation to occur. It’s like creative writing, people do it for fun.
    Patents are recognized in patent law as a necessary evil under strict conditions. Those conditions don’t exist in the software industry. Patents should not be forced on any industry that does not require them to move forward.
    Patents are not a right and no one has a right to claim them in any industry.

  114. “software is pure math” Baloney. You don’t type numbers and equations into your source code, do you?

    “every problem within can be solved if you are presented with a specification of the problem.” Hmmm; could it be that the invention is in discovering that there is a problem and divining its, “specification” as you call it?

    “None of the necessary information needed to solve the problem is included in the patent text.” We have a consensus that if there is not enough in the patent so that a programmer of ordinary skill in the art cannot make it work without undue experimentation, that patent is invalid. Are you really saying that no software patent includes enough so an ordinarily skilled programmer can write the code? How many of them have you personally checked?

    “In no situation is the software patent a patent on a invention, because you don’t invent numbers but just discover them.” There you go again, trying to tell us that software is nothing but numbers. I suppose you say that a satellite is nothing but a bunch of iron atoms, and iron atoms are products of nature, so the satellite ain’t patentable either.

  115. BTW broje, can you point me to some “market streams”? I’m an NPE so I can steal them with impunity. How much do “market streams” sell for on the open market? Do you have buyers lined up?

  116. Interesting that Ciarán O’Riordan got to post here, unfortunately the arguments given is not the critical ones. Every detail is of course correct, but they are not the bullet to end the wild goose chase of pro-software patent group.

    As a working programmer I say the real problem is that software patents does not work like you supporters claim. Most patents are in fact never used, they are only there to provide the danger of software-nuclear-holocaust.

    Every large programming company cross license their software licenses without reading them because it costs too much to find the prior art art that invalidate all the obvious things the other has patents on. In fact it does in all realistic cases take longer to interpretate the patent than to solve it again.

    To actually read the patents provide no extra information since software is pure math and every problem within can be solved if you are presented with a specification of the problem. This does not mean that every problem is easy to solve, quite many of them require horrible work to specify exactly what the problem is.

    None of the necessary information needed to solve the problem is included in the patent text. Patents on software is depending on your view patents on ideas, patents on the use of language or patent on the concept of a killing a mouse instead of a mousetrap. In no situation is the software patent a patent on a invention, because you don’t invent numbers but just discover them.

    Perhaps it would do your good to actually check what the technical expertise at Groklaw has to say about facts…

  117. Aren’t patents supposed to be for the benefit of society by encouraging public disclosure of new inventions?

    Seeing as there has been plenty of beneficial and publicly-disclosed “invention” in the form of software since computers were invented without patents, how does society benefit from granting patents on software?

    I had the great pleasure of meeting Jim Cooley once (of Fast Fourier Transform fame), and he told me of the steps IBM (his then employer) took, prior to the publication in 1965 of the Cooley-Tukey paper, to ensure that no-one would be able to obtain a patent on the Fast Fourier Transform.

    I don’t think IBM were a company of hippies back then; and society didn’t need to issue a patent to IBM to benefit from public disclosure of the algorithm. In fact, the possibility of a patent was considered by the IBM business men as a possible reason for not publishing the algorithm. More enlightened times maybe…?

  118. Tell you what anon, if you want me to be quiet then simply make a 1000$ donation to my law school fund and I promise 3 years of either complete, or practical silence.

    Deal?

  119. Quote – “Well see that part is kinda tough. If you consider “working” to be “sleeping upon” and I-95 to be the “PTO” then sure I’m “working” at the “PTO”.”

    What does that mean exactly? You work for the PTO but telecommute and you’re lazy (so it’s not really like work)? Or something else?

  120. Broje observed: “That’s right. Without patents, the little guys can’t get venture capital. Without patents, the big guys just still the little guys’ market streams as soon as they are developed and worth stealing. The result? Monopolies. Big guys buy all the shelf space and ad space. If you can’t patent your new product or service, you won’t stand a chance.”

    But, wait! I found a workaround: Abolish trademark protection, too. That way, the little guy can impersonate the Big guy and get shelf space, too.

    Great outcome! everybody wins except the lawyers, but as Shakespeare pointed out, when we want to start anarchy, first thing we do is kill all the lawyers.

  121. “market streams”

    Why can’t the little guys steal the big corps “market streams” and why didn’t IBM steal MS’s “market streams” when it was young?

    “Big guys buy all the shelf space and ad space. If you can’t patent your new product or service, you won’t stand a chance.”

    Here’s the thing tho Broje, even if I can patent my new product” then they’ll still take all the shelf space and ad space and then my corp goes down, right?

    Besides, what you seem to be discussing seems to be a problem with anti-trust law. If they can crush everyone else then anti-trust law should come into play. Perhaps instead of fighting for patents you should be fighting for more stringest anti-trust legislation hmmm?

    It seems like you’re trying to solve the problem by simply making more of the problem. What about people that would like to enter the space without making a “new product”? What about them? THINK OF THE LITTLE GUY!!!! OOOOO THE HUMANITY!!!!!!!1111!!!!

  122. “(assuming you really work for the PTO).”

    Well see that part is kinda tough. If you consider “working” to be “sleeping upon” and I-95 to be the “PTO” then sure I’m “working” at the “PTO”.

    Why poast my ID when you haven’t given me your name first?

  123. “”Or, Dennis, maybe you can add an “ignore” feature to this blog (which will allow selected contributors to be hidden as desired – much like Facebook).”

    Isn’t there a patent on that?

    Yes, but they haven’t sued anybody yet. No worries.

  124. “Or, Dennis, maybe you can add an “ignore” feature to this blog (which will allow selected contributors to be hidden as desired – much like Facebook).”

    Isn’t there a patent on that?

    Posted by: BigGuy | Nov 06, 2009 at 03:36 PM

    ——————————————–

    That is one of my absolute favorite features. Regarding whether there is a patent – probably not because the technology is advancing too rapidly. There may eventually be one, though.

  125. *******Lack of temporary monopolies promotes monopolies…

    Wait wut? ********

    That’s right. Without patents, the little guys can’t get venture capital. Without patents, the big guys just still the little guys’ market streams as soon as they are developed and worth stealing. The result? Monopolies. Big guys buy all the shelf space and ad space. If you can’t patent your new product or service, you won’t stand a chance.

  126. “How do you propose to do that sparky?”

    If you’re referring to the getting you fired part, post your identity and I’ll demonstrate for you (assuming you really work for the PTO).

  127. “Therein lies another interesting difference between this technology and others: I’m not aware of any other industry where a substantial fraction of key innovators whose products are widely if not universally disseminated are staunchly and visibly opposed to patents on any inventions in their field. Is there one? ”

    Not that I’m aware of.

    “If the Supreme Court ”

    Now you’re making up big ol’ IF’s. Big ol fat ones that weren’t provided before.

    “plain language of the statute,” /= literal.

    And even if they did go literally, signals still wouldn’t be a “product” within the meanings of the patent act.

    It’ll never happen bucko.

    I’ll go ahead and repeat for you what my tune on signals will be for the rest of my life:

    HAHAHAHAHAHHAHAHAHAHAHAHAHHAHAHAHAHHAHAHAHAHAHAH

    AHAHAHAHAHHAHAHAHAHAHAHAHHAHAHAHAHAHAHHAHAHAHHAH

    HAHAHAHAHAHAHAHHAHHAHAHAHAHAHHAHAHHAHAHHHAHAHAHA

    “Please someone find out 6’s identity and let’s get him canned from the PTO. One problem solved.”

    How do you propose to do that sparky?

  128. The fact that the claims on appeal in In re Bilski and the opinion of the CAFC thereon have nothing whatsoever to do with SOFTWARE patenting* seems to not be any obstacle to widespread speculation like this [and even in some amicus briefs] that the Supreme Court is going to rule on that subject.

    *Reportedly in the CAFC oral argument, Bilski’s attorney specifically conceeded that no computer was required for these pure business method claims.

  129. “Or, Dennis, maybe you can add an “ignore” feature to this blog (which will allow selected contributors to be hidden as desired – much like Facebook).”

    Isn’t there a patent on that?

  130. In any rational society, especially a Capitalist Society, man is allowed to benefit from his own hard work. He works hard to try to get ahead.

    Patents, as currently implemented, are quite the opposite. It doesn’t matter how hard you work if someone else did it first.

    What we really need is that every person or company who independently builds a new device or system be allowed to use and market that device or system without regard to patents held by others.

    Patents should be there only to keep others from copying one’s hard work. If they come up with what is essentially the same invention completely on their own, they should be allowed to profit from that hard work.

    Furthermore, patents are supposedly for the non-obvious invention. There are some non-obvious inventions in software that have been patented. But there are many more inventions, especially in software, that just about anyone with skill could easily duplicate if needed with no knowledge about how anyone else solved the problem. If person B inadvertently infringes on person A’s patent, wouldn’t that mean that in most cases, the invention is at least somewhat obvious? And if hundreds of people inadvertently infringe, it is certainly quite obvious.

  131. Please someone find out 6’s identity and let’s get him canned from the PTO. One problem solved.

    Or, Dennis, maybe you can add an “ignore” feature to this blog (which will allow selected contributors to be hidden as desired – much like Facebook).

  132. broje is right, 6, signal claims are patentable based on the plain text of the statute. If the Supreme Court were to adopt a literal interpretation, your tune would be more like…

    WAAAAAAAAAAAH!!!

    Hold on broje, acting like a little girl with a skinned knee

    WAAAAAAAAAAAAAAAH!!!!!

    Hold on – there is some more spilled milk to cry over over here

    WAAAAAAAAAAAAAAAH!!!!

  133. *********I think you may need to think about the impact of software patents on Linux and other Free and Open Source software. They definitely hinder progress in that area. And let’s face it. Microsoft built its monopoly without a single software patent, so clearly they are not required. **************

    I’m sure there are lots of people who would love to have an open source of modern automobile parts. Wouldn’t it be nice if you could just copy and paste them the way you do code? I think you will find a lot less people are sympathetic to the plight of the open source crowd than you might think. Why don’t those people go build new and different platforms, instead of all playing follow the leader? Patents promote variety.

    Meanwhile, if you ever saw the movie about Microsoft, you’d know that they allegedly built that fortune by pretending like they were going to buy compnaies or work with compnaies, like Xerox and Apple, only to get access to their technology and steal it. That’s right. Microsoft allegedly stole all that stuff, like the mouse, the windows operating system, everything. Software patents were needed to protect Xerox and Apple from Microsoft. Lack of patents promotes monopolies.

    Try again.

  134. Avast: “Software can be copied and/or reverse-engineered more easily than any other technology.”

    Again, earlier this decade Congress spent an immense amount of energy and time trying to address this concern and it seemed to most of the world to represent a complete victory for the industry.

    Perhaps you intended to say that “software is easier to design around than any other technology.” I hope not, because that statement is patently false. Neverthless, I believe this impression is the driving force behind the industry and the PTO’s insistence on granting absurdly broad claims to software using a bogus claiming paradigm. So a business community (software engineers, patent prosecutors, patent litigators, and gamblers, er, investors) was created that is addicted and now depends on the continued issuance of patents on roughly outlined ideas. Of course, every micro-economy has its lobbyists and this one (not surprisingly) uses the web as a primary means of disseminating its propaganda.

    Therein lies another interesting difference between this technology and others: I’m not aware of any other industry where a substantial fraction of key innovators whose products are widely if not universally disseminated are staunchly and visibly opposed to patents on any inventions in their field. Is there one?

  135. Again, someone please remind me what, exactly, a “software patent” is? Is that like a “patent troll?”

    These are terms designed to keep windbags fully employed.

  136. “Signal claims will also come back.”

    HAHAHAHAHAHHAHAHAHAHHAHAHHAHAHAHAHHAHAHHA

    Wait wait,

    AHAHHAHAHAHAHAHAHHAHHAHHAHAHHAHHHHAHHHAHAH

    Hold on broj

    HAHAHHAHAHAHAHAHHHHAHAHHAHAHAHHAHAHAHAHHAH

  137. “This is a rebuttal? LOL.”

    When someone claims socioeconomic harm as a basis for overturning a legal precedent, then yes, it is a reasonable rebuttal to point out that no harm has actually been demonstrated.

    “Microsoft built its monopoly without a single software patent, so clearly they are not required.”

    I would argue that Microsoft was able to build its monopoly precisely because there were no software patents during its formative years. Embrace, extend, extinguish completely fails as a strategy if the thing being embraced or extended is protected by patent rights.

    Note that the first major competitors to Microsoft (Google and a revitalized Apple) rely heavily on software patents to compete from a position of strength. Without them, Microsoft would likely dominate web search and mobile computing.

    “But most of us are not Microsoft. We are companies that use software, not sell it. So if you add up the pros and cons, I’d say the rest of us should prevail over the more narrow interests of just software vendors. I know they will disagree, but the world has very few software vendors, and pretty much everyone who needs to use software, so you do the math.”

    That’s true of almost all fields. There are generally a small number of companies relative to the number of consumers. That is not a meaningful argument.

  138. ********More accurately, the cost of entry to software development is *zero*, as no software need ever be written or manufactured to obtain a patent. Just scratch your head, think about an app that would be nice and that you could sue somebody for sometime down the road, and start drafting your claims. Your patent will be given the soft handed (and soft-headd) treatment of any other software patent presented to the USPTO.********

    The same is true of mechanical patents. All you have to do is draw a picture and prepare a description and claims.

    The problem with arguments against software and business methods is that they apply to every other category of patentable subject matter, including chemical, mechanical, and biotech. Perhaps they do not all apply equally, but that is just a matter of degree. There is no reason rooted in the statute for denying patentability to software or business methods. If SCOTUS continues to follows its recent habit of going by the “plain language of the statute,” then software will be patentable, and business methods too. Signal claims will also come back.

  139. “PJ – Replace the word “software” with just about any important patented technology (e.g., “pharmaceuticals”) and you’ll see how irrelevant your argument truly is.”

    Or you’ll have just made a case to get rid of pharmaceutical patents as well.

  140. We are companies that use pharmaceuticals, not sell it. So if you add up the pros and cons, I’d say the rest of us should prevail over the more narrow interests of just pharmaceutical vendors. I know they will disagree, but the world has very few pharma vendors, and pretty much everyone who needs to use pharma, so you do the math.

    We are companies that use cars, not sell it. So if you add up the pros and cons, I’d say the rest of us should prevail over the more narrow interests of just cars vendors. I know they will disagree, but the world has very few cars vendors, and pretty much everyone who needs to use cars, so you do the math.

    We are companies that use foodstuffs, not sell it. So if you add up the pros and cons, I’d say the rest of us should prevail over the more narrow interests of just foodstuff vendors. I know they will disagree, but the world has very few foodstuff vendors, and pretty much everyone who needs to use foodstuffs, so you do the math.

  141. “Bilski is going down like 6’s mom on a date. Sorry.”

    If that analogy holds then Bilski won’t be going down. At all, until the end of the world.

    Supar christian.

  142. Pardon me if I am wrong, but didn’t Linux essentially just copy Unix, which was developed by Bell Labs rather than being an open source venture?

  143. Quote – “But most of us are not Microsoft. We are companies that use software, not sell it. So if you add up the pros and cons, I’d say the rest of us should prevail over the more narrow interests of just software vendors. I know they will disagree, but the world has very few software vendors, and pretty much everyone who needs to use software, so you do the math.”

    PJ – Replace the word “software” with just about any important patented technology (e.g., “pharmaceuticals”) and you’ll see how irrelevant your argument truly is.

  144. You know what people will really notice? How truly rude pro-patent folks here are.

    There are several amicus briefs filed in this case that make the same points as this editorial.

    I think you may need to think about the impact of software patents on Linux and other Free and Open Source software. They definitely hinder progress in that area. And let’s face it. Microsoft built its monopoly without a single software patent, so clearly they are not required.

    And you need to think too about the fact that proprietary software companies are allowed to get a patent without actually showing how the patent works, minus the source code, which distinguishes software patents from all others, where at least others can build on your work. Where is the quid pro quo with software patents? How does the public benefit?

    Also, since software is essentially math, it isn’t true that you can just work around patents in that field. It’s more like allowing patents on 1+1=2. Once you’ve done that, you’ve shut the door on a lot more than just that one process. You’ve run out of ways to get other things done too, because it’s a fundamental building block.

    For those who imagine that FOSS and Linux is just for hippies, every time you use Amazon or Google, you are using Linux. The Internet runs on unpatented
    open source software. You actually need it for the economy. Anything that restricts it hurts you. Unless you are Microsoft et al, of course. But most of us are not Microsoft. We are companies that use software, not sell it. So if you add up the pros and cons, I’d say the rest of us should prevail over the more narrow interests of just software vendors. I know they will disagree, but the world has very few software vendors, and pretty much everyone who needs to use software, so you do the math.

  145. Any decision to completely eliminate or completely allow software patents would be terrible. A balancing test would be great for litigation and my billable rate.

    (an exaggeration based upon what I see many people’s comments here to be solely based upon).

  146. In my humble opinion, the largest problem with the Bilski decision is that the Federal Circuit used a terrible (and unpatentable) method claim as a test case to craft a broad ruling that extends well beyond the scope of business methods into the territory of software, as well as some biotechnology patents that at least partially involve human actions. In essence, the Federal Circuit used a sledgehammer to swat a fly. I do not see Bilski as a likely vehicle for the invalidation of software patents, regardless of whether there may be some merit to doing so (which I do not personally believe). Accordingly, I believe that the above article espousing the perceived merits of eliminating software patents is little more than wishful thinking.

    I also do not agree with the article’s framing the patenting of software as patenting “software ideas”. Ideas are simply not patentable in any context, whether the technology be software, a machine, a chemical or anything else. Even where software has not actually been written prior to filing of a patent application, the act of filing constitutes a constructive reduction to practice that, if described properly, enables those of ordinary skill in the art to make and use the same. This differs significantly from a mere idea that is not fully flushed out and remains captive in the inventor’s mind.

    The most compelling arguments presented in the O’Reardon article pertain to the potential of increasing the cost of doing business. There will certainly be some cost increase, especially for large companies. However, it is also the case that small software companies, especially startups, are particularly susceptible to being crushed by large competitors without such protections. Software can be copied and/or reverse-engineered more easily than any other technology. Accordingly, a proper patent pertaining to an innovative new software technology that is granted to a small company may allow such a venture to compete effectively, and deservingly, in the market.

    Personally, I am of the opinion that software patents are proper and generally beneficial in many cases. Fortunately, Supreme Court precedent does not support the elimination of software patents and the Bilski decision is also unlikely to reverse course in this respect.

  147. Some people definitely need to calm down. I definitely hope Dennis posts guest articles on both sides of the issue. Nothing wrong with hearing the side of someone whom you disagree with.

    “Moonbeam alert,” you are right this is all completely irrelevant to the Supreme Court Bilski case. Though policy is within the field of law and this would all be very relevant to Congress for patent reform.

    And I say this as someone with a CompSci degree. Without software patents, I’d have to find a new job (but adapting isn’t very difficult – at least not for us non-old attorneys).

    There are definitely problems with software patents. I know I’ve run across some patents (with fairly recent filing dates) where I’m pretty sure I did what was claimed in Programming 101. But that has nothing to do with patentability and Section 101, but novelty and obviousness. So perhaps there is a need for better searching and greater use of non-patent literature. Perhaps because of the nature of programming, a lot of this isn’t published in articles but just done in programming. But again, those seem to be issues for 102(a), (g), etc.

    But this definitely is a policy fight, which is the domain of Congress and not the Courts. The Supreme Court shoudl not be considering this. It should be looking at the text of the statute, the Constitution, and the historical meaning of the IP clause (and perhaps some would want to look at legislative history; but I’m with Scalia on that, it’s useless).

  148. “This is entirely hypothetical”
    “MPEG-LA has chosen not to pursue legal action against the developers or users of these programs”
    “The Microsoft lawsuit against TomTom’s use of Linux doesn’t count, by the way. That was a suit against a particular device manufacturer. What’s more, the case settled, and the offending code was fixed in the kernel.”

    This is a rebuttal? LOL.

  149. (Comment from the author)

    Hi all,

    I already got to have my say in the article, but I’d just like to add a note on the background of publishing this.

    A few weeks ago, a site consistently critical of software patents published an article by some lawyers about the arguments *for* software patents:
    link to groklaw.net

    The discussion raised was interesting and a break from the norm, so I asked Dennis what he thought of posting an editorial for the flip side of that debate. Both sides have supporters, and socio-economic factors do affect legal decisions, so I’m very glad this controversial article was accepted, and I’d like to thank Dennis and the many who are posting interesting replies.

  150. Well done, James Daily. Thank you for thoroughly picking through his drivel. I am shocked that Mr. O’Riordan’s whining which does not address the law, or anything substantive for that matter, would even be posted.

  151. “Again, not one concrete example of the distribution or development of free software being enjoined by a patent holder.”

    Hope not; i recently used freeware to get rid of a nasty puter infection that had the bigname proprietary s#*tware crying uncle.

  152. “Can you imagine the utility of an innovative word processor that can’t read any existing documents?”

    Really, someone could have obtained a patent that broad? Really?

  153. I’m going to address a few of his claims:

    “When a company manager reports a website problem, they don’t expect the IT department to reply about first seeking legal advice for a patent search, and they don’t expect to later have a bill from a patent holder because of the way in which the IT department happened to fix the problem.”

    This is entirely hypothetical. Despite software patents being around for many years, Mr. O’Riordan cannot point to a single instance of this happening. Furthermore, the alleged danger here is not unique to software. The same story could be told about a factory manager reporting a manufacturing problem to the mechanical department.

    “For user communities programming to suit their own needs, the costs and timeline are also unreasonable, but there is also the bigger problem that the patent holder gains veto power over the distribution of the software.”

    Again, not one concrete example of the distribution or development of free software being enjoined by a patent holder.

    “In software, being blocked from using an email, image, or document format equates to being prohibited from writing a functional email reader, image viewer or word processor.”

    Again, no concrete examples. There are dozens of email servers and clients, image editors and viewers, and word processors, both proprietary and open source. There are no real-world examples of users of a ubiquitous, standard format being locked-in by a patent holder. The GIF format-related patents come closest, but the patent holder did not succeed in blocking open-source use of the format, and indeed the open PNG format that was created to compete with it is now greatly preferred over GIF.

    “There’s no licence available for freely redistributable software, and even royalty payers have to agree to MPEG-LA’s terms.”

    So the free software world should develop its own format. In fact, they have, and it’s called Ogg Theora. But the market has decided that, despite the MPEG-LA’s licensing terms, it prefers the MPEG formats to the open formats.

    Furthermore, there are several open source programs that decode and encode MPEG formats. MPEG-LA has chosen not to pursue legal action against the developers or users of these programs, even though they have been infringing for many years. Mr. O’Riordan’s fears have so far proved unfounded.

    “The committee developing the next standard for webpages, HTML5, spent months searching and debating which video format they could recommend in the standard, and the final answer was that, due to software patents, there is today no format they can recommend.”

    There is no standard for video on the web today, either, yet users have no problem viewing video in various formats. There is no particular technical reason to think that the failure of HTML5 to specify a standard video format is a problem. There are no standard image or sound formats specified in HTML, either, for example. This example does not prove Mr. O’Riordan’s case; indeed, it does not even support it.

    “Blocking collaboration turns out not only to be a restriction on useful individual activities, but it also stiffles (sic) competition and the mass production of useful software.”

    Again, no concrete examples that software patents are blocking collaboration or stifling competition from open source software.

    Regarding his final point about the Linux kernel and the patents it may or may not infringe: this actually argues against his side. If a wildly successful competitor to numerous proprietary embedded, server, and desktop operating systems can infringe hundreds of patents for years without attracting a lawsuit, then why should we believe that software patents actually represent a threat to open source software?

    The Microsoft lawsuit against TomTom’s use of Linux doesn’t count, by the way. That was a suit against a particular device manufacturer. What’s more, the case settled, and the offending code was fixed in the kernel. The actual development and distribution of Linux was never in danger.

    The anti-software patent movement has compiled a list of examples of alleged harm to free software projects caused by software patents. I link to it only to point out that the list is both short and weak. It is heavy on theoretical or possible concerns and extremely light on actual, concrete problems (e.g. a project successfully sued by a patent holder and enjoined by a court).

    link to en.swpat.org

  154. The anti-software patents folk cry, “Hey, our ox is being gored by the patent system. Our ox is more important and unlike than other oxen and should be free.”

    The software patent attorneys cry, “Hey, our ox would be gored if we didn’t have a software patenting free for all! Ignore our personal interest. It’s all about our clients and innovation!”

    Neither side is particuarly sympathetic.

  155. Paul Cole: “Why should inventors in the complex technical field of software be denied the rewards of their creativity? ”

    Better question: why should inventors in the “complex technical field” of software be routinely issued claims that are neither complex or technical?

    I’m sympathetic to the idea of patenting code that provided unexpected results relating to, e.g. the speed at which certain results are obtained. Of course, we’d still have to address the manner in which such claims are properly presented, but something could probably be worked out.

    Oh, and wasn’t there some very well publicized laws passed not too long ago providing software manufacturers with all sorts of special protections about copying? I guess that law is deemed to be unfair because you actually have to make something yourself that people want to buy before you can take advantage of it.

  156. What does it take exactly to be a garage tinkerer of “ordinary skill” in 2009?

    I proposed a new requirement for patentability: You should have to have a PhD to be able to get a patent. Every application should be required to be filed with a copy of the inventor’s doctorate diploma. Any innovation that is so simple that you don’t need a PhD to understand it–shouldn’t be patentable.

  157. “FYI — “software development” is not the same as drafting claims. Also, you need to know something about software (i.e., training) as well as a computer to do actual software development.”

    Yes, but you don’t need to have any software training to conceive of and draft a patentable claim covering a software or “computer-implemented” invention. The PTO does not require any examples of actual code (can you imagine the outcry???) or any other evidence of functionality other than a flowchart. And once I have my patent, I am most certainly “in business.”

    I’ve noted this before this misplaced arrogance on the part of software patenting bulls. On one hand, they insist that they are the kings of the innovator universe without whose incentivized genius we’d all still be using typewriters. On the other hand, any suggestion that the patents stink because the salient limitations are mere recitations of wished-for functions is scorned because “any programmer of ordinary skill could implement the invention.”

    What does it take exactly to be a programmer of “ordinary skill” in 2009? As I recall, 35-40 years ago kids were taught how to program computers in 7th grade and were designing their own novel apps and games at about that time.

  158. Here’s Mr. Mark Chadurjian’s take on it (Senior Counsel, IBM Software Group Intellectual Property Law). He even used the same “baby with the bathwater” line as I did.

    link to bit.ly

    I’m not so sure that I think we need a complete overhaul of the patent system. Maybe some tweeks but nothing radical.

  159. Re Yeah sure and Mr. Mooney – Can I get an Amen brothers! Mr. End Software Patents is just another in a long line of anarchists protesting their believed “rights”, which in and of itself is simply confusing and humorous. I was bored after reading the first paragraph of his soliloquy. Just because you use the words clearly and obviously often doesn’t mean you are right. You offer no facts – only self contrived examples, like all others with this argument. And, what is a “software patent” anyway. Everything in the world is run by software. Does that mean nothing should be patentable? Why do these people always use the IT software patent as the example. I could care less if the Supreme’s kill Bilski. There is no technology there anyway – merely an abstract idea implemented with exceptional simple arithmetic. But, you don’t throw the baby out with the bathwater. Innovative software can and must be patentable. All those free software foundation groupies are free to dedicate their patent to the public if they like. Nothing precludes you from doing that. The patent just grants a right to exclude. It’s not a requirement to exclude.

  160. You know, software development really is trivial. One day, I was just sitting there, and I wrote a whole new operating system from scratch in ten minutes. (It took two minutes to write a C compiler from scratch; I found the graphics subsystem kind of tough, though, and that took 4 whole minutes!)

    My OS doesn’t have any bugs yet that I’ve been able to discover. It’s faster than any *nix, but it runs both *nix executable and Windows executables natively (both 32- and 64-bit, regardless of your processor’s architecture), and it boots in .5 seconds.

    Tired of Windows Vista because it’s too slow? You should just write your own operating system, like I did! It’s trivial!

  161. The question before the Supreme Court is whether the machine or transformation test is a good test.

    Mr O’Riordan’s complaint is nothing to do with that test but is a whinge that complex software may be covered by many patents and this can create problems.

    Obviously he has never considered making a semiconductor chip, a flat panel display or an automobile. If he had, he would be aware that it is commonplace for such products to be covered by by a multiplicity of patents owned by different inventors and their several assignees, and for the various patent owners then to have to come to terms with one another if the product is to be produced. Various vehicles such as cross-licensing and patent pools exist or may be created to permit this to happen. But that is nothing to do with the question whether inventors and their assignees should be rewarded in the software field as any other.

    Why should inventors in the complex technical field of software be denied the rewards of their creativity? The only truly important question is whether the alleged invention meets the requirements of novelty, inventive character, enabling disclosure, written description (if that is indeed a separate requirement) and utility. If an invention meets those requirements, then the courts and the USPTO should be slow to drive the inventor from the patent system.

  162. “Hello, do you know anything about the semiconductor industry? — you know, those black rectangular things found in most electronics.”

    I think he said software, not semiconductors. Didn’t he?

  163. “FYI — “software development” is not the same as drafting claims. Also, you need to know something about software (i.e., training) as well as a computer to do actual software development.”

    HOLY SHT?!?!?!?!?!?!?!?! YOU NEED TRAINING (OR BE SELF TAUGHT FROM A BOOK) AND A COMPUTER?!?!?!?!?!?!??! WHERE COULD I GET THOSE FOR FREE? HMMM, PUBLIC LIBRARY PERHAPS? AT THE DUMP? CRAIGSLIST? Then I’ll be on my way to doing ACTUAL software development!!!!!!!!! Wooot!!!!!!!

    Yall are sooooo funny on this hea blawg. It’s like you guys try to refute a point by strenghtening it. Why do you bother?

  164. Yeah,sure: “The chemical industry is already treated differently by the patent system that any other industry. Claims that include sequence listings, anyone?”

    A sequence listing is nothing more than a list of definitions that are computer-searchable. They are an additional mandatory *burden* on chem/bio practitioners, not a gift. If you need any evidence of that, consider that businesses exist which do nothing except prepare sequence listings for prosecutors who don’t have the time or resources to do so themselves.

    “Product-by-process claims, anyone?”

    Available to any industry, including software. Bear in mind that recent case law has stripped such claims of most, if not all, of their previously alleged “advantages.”

  165. This free-beer post has no relevance to the case before the SuprCt. If the Court were to follow this reasoning, it would be another Dred Scott decision in which the Court’s policy preference defines the law.

    This post should be directed to Congress if a change in direction in the statute is desirable.

    Which it is not. A programmed machine is still a machine. Indeed, to the outside world, a programmed general purpose computer operates identically to a computer built with custom-hard-wired logic to accomplish the same function. Distinguishing patentable subject matter because it is “software” is like denying patent protection to car engines with electronic ignition control while granting patents to engines that have a distributor and points.

  166. “The software industry is already treated differently by the patent system than any other industry. Beauregard claims, anyone?”

    The chemical industry is already treated differently by the patent system that any other industry. Claims that include sequence listings, anyone? Product-by-process claims, anyone?

  167. “More accurately, the cost of entry to software development is *zero*, as no software need ever be written or manufactured to obtain a patent.”

    FYI — “software development” is not the same as drafting claims. Also, you need to know something about software (i.e., training) as well as a computer to do actual software development.

    “The software industry is already treated differently by the patent system than any other industry. Beauregard claims, anyone?”
    So gene patents have their own types of claims that are different from everything else. Also, many chemical patent have their own types of claims that are different from everything else.

    Anymore strawman you want to knock down?

  168. Ditto Legalo, Yeah Sure and Full Moon.

    Professor Crouch – posting this one-sided article hurts PatentlyO’s credibility. Add a disclaimer or post a rebuttal article from a knowedgeable source.

  169. Wacko: “There are hundreds of ways you can do just about anything with software given enough code, memory, and processor speed.”

    True enough. And a typical software claim covers every one of those ways.

  170. Just to be clear about my previous post, only the first quoted comment was O’Riordan’s. The other two were from “yeah sure.”

    “Must be a full moon — the wackos are out in full force”

    So are the sockpuppets with silly names.

  171. This post is a house of cards built on one falsehood after another.

    All the “problems raised” are “problems” faced by infringers in every area of patentable subject matter.

    The Wright Bros. competitors voiced similar complaints. Does that mean we should abandon air plane patents too?

  172. BTW — isn’t this supposed to be a blog on patent LAW? None of his arguments touch on the law nor would they be considered by SCOTUS if raised.

    Why is this garbage even on this blog?

  173. “There is no reliable way to have a settled expectation regarding the boundaries or the extent to which you own a piece of software.”

    Hello, do you know anything about the semiconductor industry? — you know, those black rectangular things found in most electronics.

    “In software, rather than supporting innovators, patents protect the old against the new.”
    How is that any different from any other field?

    “Given that a distribution of the GNU/Linux operating system, complete with applications, can contain software with more than 225 million lines of source code, when we extrapolate from the kernel numbers, we arrive at the possibility of 13,160 or 15,848 patent infringements per complete distribution.”
    Some pretty weak anlysis. You extrapolate across an entire operating system what Microsoft alleges to be found in one kermal?

    “in no other domain are modern standards as crucial as they are in software.”
    Wrong, there are dozens of standards for text-based documents. In fact, you can easily create your own. There are dozens of standards for encoding both pictures or video. There are also plenty of standards for the types of medium upon which you can record both pictures and video.

    There are hundreds of ways you can do just about anything with software given enough code, memory, and processor speed.

    Another wacko wanting to steal other people’s property. Man … Dennis will let anybody post.

  174. O’Riordan: “The low cost of entry to software development”

    More accurately, the cost of entry to software development is *zero*, as no software need ever be written or manufactured to obtain a patent. Just scratch your head, think about an app that would be nice and that you could sue somebody for sometime down the road, and start drafting your claims. Your patent will be given the soft handed (and soft-headd) treatment of any other software patent presented to the USPTO.

    “Another problem with this post is that all of the arguments are applicable to any industry.”

    That’s false, as the argument regarding entry barriers is not applicable to any industry. The software industry is already treated differently by the patent system than any other industry. Beauregard claims, anyone?

    “One sided fact stretching seems to be in vogue these days since the “facts” are slanted towards the author’s viewpoint. Is Dr. Crouch going to let the other side also provide an article on this topic?”

    What if he doesn’t? Are you going to boycott the blog? Sheesh, if you have an opposing view, present it yourself.

  175. I’ll summarize the above post (so as to criticize it): Patents provide a right to exclude. This right to exclude could theoretically prevent the free software hippies from continuing to work on GNU/Linux. Therefore, software patents are bad.

    Another problem with this post is that all of the arguments are applicable to any industry. Example:
    “Not only are patent incentives obviously not necessary to motivate IT departments to fix problems, the timeline and budgets are orders of magnitude out of sync with the speed and costs of writing software. When a company manager reports a website problem, they don’t expect the IT department to reply about first seeking legal advice for a patent search, and they don’t expect to later have a bill from a patent holder because of the way in which the IT department happened to fix the problem.”
    Change that to: When my chemistry experiment isn’t going well, I want to try a new method. Do they expect me to first seek legal advice for a patent search regarding whether a proposed new fork in my research may infringe a patent?

    If you work in a technical field, the stuff you work with may be covered by a patent. There are ways to deal with that–taking a license (how about that!), indemnification clauses in contracts against patent suits if you buy from a vendor, etc. Get over it!

  176. One sided fact stretching seems to be in vogue these days since the “facts” are slanted towards the author’s viewpoint. Is Dr. Crouch going to let the other side also provide an article on this topic?

  177. This is a very fine piece of writing explaining in clear terms why the patent system is broken. Thank you!

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