Red Hat on Patents (VIDEO)

The video prominently features BU law professor and economist Michael Meurer whose book Patent Failure (with Jim Bessen) uses economic analysis to make the case that patents (particularly software patents) are a net drag on innovation.  The video is purely one-sided.

236 thoughts on “Red Hat on Patents (VIDEO)

  1. MM: “I’m glad we got that out of the way. Now we can talk about how important it is for investors and inventors to be able to own broad rights to computer-implemented concepts after Congress spent a great deal of time and taxpayer money to create special copyright laws protecting these same people.”

    Like I said, how can you converse with people who lack basic critical thinking ability?

    I guess if you can’t understand the difference between fixed expression and functionality, then this makes sense. This might also make sense you one thinks that creating source code from a design document or blueprint is difficult.

    Oh, the states have spent much taxpayer money on building a body of tradesecret law. Someone can form chemicals using a new and useful process and just keep that process secret _forever_ (plus a day). Patents for chemical processes/methods only waste the good taxpayer’s dollars that have been spent on tradesecret laws.

    Oh, and who needs patents when they can get a trademark, also of possible infinite duration. Go buy “GoreTex” clothing. That patent expired long ago, yet “GoreTex” is still made and costs more than “waterproof breatheable nylon”. Those folks never needed a patent; the Trademark was sufficient.

    But Malcolm, it’s comforting to think of you keeping close tabs on taxpayer dollars, especially if the rumor is true that you are an examiner.

    Here’s some logic that’s valid in the Malcolm-verse. Most patent applicants are taxpayers. Applicants pay the PTO fees. The PTO spends those fees. Conclusion: the PTO spends the money of taxpayers.

  2. “You’re splitting hairs. Let’s say there is no such thing as software. You wave a wand at the processor and it is somehow configured in a way that it has new and useful propeties. It behaves in observable predictable ways to do those useful things. Throw away the wand and leave the processor plugged in forever. Where’s the “software”? Is the processor useful without the “software”?”

    Do we get power? Do we also get the ability to use the processor any way which we please? If yes, yes, then yes, yes.

  3. “Why? Can you point to some computer science text that explains how an algorithm works by reference to a pattern of bumps on a disk?”

    Yes. I have one on my shelf at home.

    In any event that is besides the point. If you say that the algorithm is your invention I will nail you to the cross for attempting to patent all uses of the algorithm (benson). You better stick to the medium being your invention.

    “If you showed such a pattern to a PHOSITA, would he really be able to understand it?”

    He would understand what the invention, aka the medium, is. In fact, he would have a crystal clear view of what it is.

    “Easy. He’d read the claims. ”

    What the invention is is sometimes buried within the claims. For instance, here we have a case where someone has described a medium simply by describing the effects that something “encoded upon it” has on another machine. What is the medium, and what specifically, is its structure?

    “Even easier. Just look at the flow charts and block diagrams. That will show the logical structure. Then read the specification. Juries do that all the time. If they can understand it, so can you. ”

    Flow charts and diagrams are the structure of the medium? I have never seen such a flow chart or diagram showing such. But if you have a flow chart that does then that’s good. I can’t wait to see it.

    “That will show the logical structure.”

    I’m asking for the structure, not the “logical structure”. Don’t mince words with me.

    “Then read the specification. Juries do that all the time. If they can understand it, so can you. ”

    No, they don’t ever “understand it”, you simply fool them into thinking that they “understand it”. They’re completely ignorant of what the structure is in 100% of the cases I’d wager. There might be one or two cases that have happened where they weren’t ignorant of this, but the knowledge they had didn’t come from a flow chart, a diagram, or knowledge of the “logical structure”.

    By the by, I missed the part where you were responding to where I “established” that my reference’s cd was the same as yours.

  4. Anony Mouse,

    Sorry if this rambles, but I’ve got limited time for this…

    “I am not being dishonest about the science-part. I just read that one cannot patent an equation, that’s all. Thanks for pointing it out. As for computer science/engineering/arts — it is many faceted discipline that has ties nearly with all disciplines, including poetry (e.g. programming language design) and there are fundamental theories that are specific just to science of computing, but that is irrelevant here.”

    I agree. No patenting equations per se. Re the poetry, I think that you allude to creativity in general. I agree, this is something we find in all scientific endeavors. But this is just the sort of thing that leads to my position. Every now and then someone comes up with some software ideas that are like the Raven.. they’re new, creative, unobvious, all peers are amazed, and so on. It’s just that you can do a lot of real world useful stuff with the software. Anyway, similarities to poetry or other liberal arts do not negate the “hard science” traits of computer science, which predominate. Don’t most CS degrees require a substantial amount of math coursework?…

    “The “[fill in the blank]” hypothetical example above works for computing machinery but does not work for software, because software itself is inanimate, it’s the executor/processor/hardware that moves the electrons. May I say that software without hardware/executing_platform is useless?
    Software cannot move the electrons by itself, that’s for sure.”

    You’re splitting hairs. Let’s say there is no such thing as software. You wave a wand at the processor and it is somehow configured in a way that it has new and useful propeties. It behaves in observable predictable ways to do those useful things. Throw away the wand and leave the processor plugged in forever. Where’s the “software”? Is the processor useful without the “software”?

    Try looking at it this way. Suppose you found a machine (it’s a programmed computer, but we don’t know that). You observe it and test it until you figure out what it does and how. Now you want to publish a paper about the machine. Would you describe a bunch of gates and the low-level ways they work together? No. It would be meaningless not to mention difficult. We would describe the behavior of the machine in a way that is meaningful to people. That description would sound like an algorithm or math or whatever, but that would not mean that the processor is per se “math” etc. Math and abstract language is how we describe what the processor does.

    And so with a patent claim. People configure processors at a high level. That’s where the human activity occurs to make new and useful processors (perhaps temporary). Think about the work that goes into designing a new algorithm. You don’t worry about gates or buses or electrons, you deal in math-like abstractions and models that you assume a machine can implement. You use high-level “language” (pseudo code, real code, a useful subset of English verbs, etc.) to both design and to describe what you’ve created. You may use a high-level programming language to formalize your creation. But when you configure the processor, you’ve created a real machine with real world possibilities. The machine happens to have characteristics that can be described with your code or with English. A patent claim may borrow from that language you’ve used because that’s the language of that technology; that’s the level of abstraction that people work with and create (and the level at which that work would be imitated). But if the patent claim is to a real world implementation, a real machine or a real machine-implementation of your algorithm, then we shouldn’t have a problem. The algorithm/math/TuringMachine/blablabla per se is not patented. A machine or machine-performed process that has properties described in the claim is what is claimed. Your peers can still study the algorithm, they can discuss it in papers and lectures. They can write it on paper and work with it, etc. The can “run” it in their mind. Practically, they can code it and test it in private without anyone knowing in order to learn (though this might be technically infringement, consider it de facto “fair use”). The algorithm per se has not been patented.

    “…I would like to discuss aspect of patenting pure software solution running on general purpose computer. Perhaps very specific software for starters: just open source software (perhaps I could generalize later).”

    “So you say patents are supposed to encourage the useful arts. This is their purpose, and without purpose the law should not be applicable?”

    Yes, but the nature of the law is that it is a system. It’s language in action. You build this system as a set of rules in human language with the intention of accomplishing a goal such as encouraging innovation or preventing financial fraud. Now being a system performed by human minds according to human language, the system is imperfect. Some desired outcomes don’t happen, and some undesired outcomes do. So you can’t just point to a single or few examples of the law not working according to its design and say it must be disposed.

    Opensource is only a small piece of the software world. If patents are a hindrance to the opensource movement, that alone is not sufficient reason to dispose of the software patent system.

    “The open source community say it does not work for open source software and they give you the reasons on how it breaks down:
    1) patents require full disclosure of the invention so that it would not be lost and other would get benefit. Open source software is by definition open and disclosed and often you may get any version of it, so there are no benefits here. … [I don't understand the rest of this part]”

    This is not true. The value of software is not only in the source code. There can be great value in the design of that software; the ideas behind it.

    “2) patents grant unlimited monopoly over the technology but limited in time (please correct me if I am wrong). Again, this goes against open source software, because everybody is encouraged to try the software instead of restraining from.”

    This goes agains all software, whether open source or not. It doesn’t help us understand if patents are a net pro or con for the public, which uses much more commercial software than opensource software.

    “3) the patent filing procedure takes a long time, longer than the software production cycle.”

    Right. I have a thought for you on this you might not have read before. The nature of software is that it is abstract. It is very easy to describe software in a way that is completely untied to anything in the real world. I have read patent claims where, though the description was for something concrete and spefific and reasonable, the claims were so obtuse and abstract that you couldn’t read them and know what they meant when compared to something in the real world.

    In software, context is everything. An advance usually only makes sense with reference to or described relative to something that already exists. So I would argue that most _valid_ software-type claims have some concrete features or limitations that fix them in time. That by necessity starts to limit how far in the future these claims will reach. In a few years there will be new developments, new terminilogy, new context. Chances are, my valid claims won’t be very relevant. Go read some software patents issued 10 years ago. A large portion are irrelevant to the state of software today. Basically, valid software patents often inherently have a limited life span, though I think patent term is a legitimate way to re-level the patent cost-benefit balance, if needed.

    “5) with software, just about anyone can be an inventor, but only the big companies can afford the patent system.”

    There’s a bit of truth to this. I think it’s why small inventors get a 50% discount. The flip side is that if you’re “small”, you’re also not likely to be accused of infringement.

    “so how does the patent system encourages software arts?”

    “If we would take a historical perspective, then patent system is very old compared with the software technology and especially open source. And this technology is radically different from what we had before (in terms of production cycles, distribution costs and lifetime).
    So different conclusions can be drawn from here, I would not speculate.”

    The patent system is not fixed in stone. It changes all the time. PatentSystem(1950) != PatentSystem(2010).

  5. “PHOSITA does need them to understand the invention.”

    Why? Can you point to some computer science text that explains how an algorithm works by reference to a pattern of bumps on a disk?

    If you showed such a pattern to a PHOSITA, would he really be able to understand it?

    “I have to wonder how poshita would divine what the invention was either. ”

    Easy. He’d read the claims. That’s what you should do too.

    “I especially don’t understand how they’d know what the structure of the invention was. ”

    Even easier. Just look at the flow charts and block diagrams. That will show the logical structure. Then read the specification. Juries do that all the time. If they can understand it, so can you.

  6. “What prevented Edison and others from filing patents on phonographs that differed only in the music content?”

    I don’t know what section 101 looked like back
    then, or if there even was one.

    “Do you believe that lawyers in Edison’s time weren’t as creative as they are now?”

    Do I seem old enough to know?

    “Or is it that people now are more greedy than Edison?”

    I don’t know how greedy he was. But he
    couldn’t have been that greedy or he
    would have been in some other line
    of business, like his contemporaries
    Rockefeller, and JP Morgan.

    “Second, why isn’t all software claimed on a generic computer-readable medium per se obvious or anticipated according to your theory above?”

    Well, if it is, then at least
    it got past 101. That’s all I
    was pushing for. Once it’s past
    that it’s on its own.

  7. I don’t f around with drawings much anymore, but you’ll have a good ol time with 37 CFR 1.81(c) coupled if I feel like it, with 37 CFR 1.83(a) and maybe (b) won’t you?

  8. Well, I am leaving now. MM you can re-start your troll nonsense. I’ll smack you down on Monday.

  9. “All that’s left are the parasites.”

    When that happens, do some of the parasites go ahead and make some successful products, then die off, etc with a neverending pool of parasites to replace the prasites that go rogue and create a successful product?

    If so, why should I be against this model?

  10. “So copyright does not offer enough protection for people to bear the expense to design and develop and manufacture and advertise and enter the market, ”

    Dear heart, iPods are a poor example, you know good and well they could pay to have that software created a thousand times over and still be able to enter the market with ease.

  11. “Drawings are only needed if a PHOSITA would need them to understand the invention. ”

    Poshita does need them to understand the invention. What, specifically, is this structure which functions as you say it does? You’ve only described it functionally. How can they know what the structure is without a diagram or at least a detailed description of the article in the WD?

    I haven’t been able to understand what specifically was the invention sought to be patented in any B claim cases that I’ve ever read, and I have to wonder how poshita would divine what the invention was either. I especially don’t understand how they’d know what the structure of the invention was. Perhaps you could explain to me how they’d know? Good luck.

  12. I just got back from another alternate universe that had only copyright protection for software. Again, no iPod. Apparently, if you just write from scratch software that performs in exactly the same way, but do not actually copy the software, there is no copyright infringement. Who knew?

    So copyright does not offer enough protection for people to bear the expense to design and develop and manufacture and advertise and enter the market, when people can just make a product that functions in the exact same way without penalty. Then everyone just sits around waiting for someone else to make a successful product that has a software component, and they make one exactly like it but less expensive because they don’t have to recoup design and development costs. The ones that do take risks and make new products, some of which fail, are not as profitable as the do nothing no risk takers, so they fold. All that’s left are the parasites.

  13. “I just got back form a parallel universe that is exactly like ours except no software patents. They didn’t have the iPod.”

    HAHAHAHAHHA lololol. Did they have such advanced technology that iPods were irrelevant?

  14. “How would you establish that your CD is the same as mine?”

    So far as I’m aware the only requirement for my cd to be “the same” as yours is that it has “encoded thereon some software which, when executed by a computer, causes it to do X, Y, and Z”. My cd does just that on a specific machine (aka one programmed to do xyz when it recieves the information from my disk, just like yours).

    There isn’t anything more to “establish”.

    “I didn’t claim a CD with 1 0 encoded thereon did I?”

    So far as I can see you did. Perhaps you can explain how what you claimed is “different”. Good luck.

    “Don’t project your motives onto other people, 6.”

    LOLOL. Right. Nice deflection.

  15. a supposed viewpoint that software patents are necessary for software to advance. No one on this forum has ever suggested such a thing.

    I’m glad we got that out of the way. Now we can talk about how important it is for investors and inventors to be able to own broad rights to computer-implemented concepts after Congress spent a great deal of time and taxpayer money to create special copyright laws protecting these same people.

  16. So, MM, up to your ole nonsense that a phonograph is the same as a computer?

    New functionality with a new phonograph? Really!

    Please explain that functionality.

    Oh no, MM, will run as he always he does. Come MM let’s play.

  17. Drawings are only needed if a PHOSITA would need them to understand the invention. Lots of chemical cases don’t have drawings. I don’t see how a drawing of a disk would help a software engineer anymore than little diagrams of atoms would help a chemist.

    How would you establish that your CD is the same as mine? I didn’t claim a CD with 1 0 encoded thereon did I?

  18. I just got back form a parallel universe that is exactly like ours except no software patents. They didn’t have the iPod.

  19. Sorry, do you mean the one asking what would happen to a claim for roll-2 if prior art roll-1 differed only in the music encoded?

    I would expect a rejection under 103, but not under 101.

    First of all, that wasn’t my question. My question was what prevented Edison and others from filing patents on phonographs that differed only in the music content? After all, each piece of music imparts a new functionality to the phonograph player. Do you believe that lawyers in Edison’s time weren’t as creative as they are now? Or is it that people now are more greedy than Edison?

    Second, why isn’t all software claimed on a generic computer-readable medium per se obvious or anticipated according to your theory above?

  20. “Those popular fads are cited to support the false premise that without software patents we’d all be sitting around a fire in a cave and carving bones with sharp rocks.”

    Here’s another one of the fallacies that for some reason is constantly repeated by this person. How is it possible to discuss with people who don’t seem to grasp even the basics of critical thinking and logic?

    Would chemistry still be practiced if there were no patents? In fact, did the entire field of chemistry arise without patents? Yes, of course. Same with modern biology. If we struck all patent laws off the books today, would Genentech stop developing drugs? No. Would materials engineers all retire? No. If there were no patents on mechanical devices, would Toyota stop trying to find new ways to build better cars? No. In fact, the vast vast majority of activity in all patent-eligible subjects involve just routine engineering, including software. We all know this. No technical field’s emergence or continued existence is dependent on patents.

    Would software be developed without patents? Obviously yes. Mooney fabricates when he says that pro-patent people argue that patents are necessary for the advance of software or are somehow the catalyst for all software advances. Mooney mischaracterizes pro-patent viewpoints as somehow suggesting that without software patents we’d all revert to amoeba. He twists the viewpoint that patents have a proper role into a supposed viewpoint that software patents are necessary for software to advance. No one on this forum has ever suggested such a thing.

    At best, people here have argued that some investment occurs in part because of the prospect for ownership (in the form of patents). Some have argued that it is fair for inventors to own certain software inventions. Some have argued that the problems of software patents are overblown or unproven. But no one has made the argument that Mooney presents, and it seems he does this either because he is eager to discredit or because he just sees things that aren’t really there.

  21. “”I claim a disk having encoded thereon some software which, when executed by a computer, causes it to do X, Y, and Z.”

    And then I object to your drawings for not drawing the structure since it is imperative that I know what the structure is in order to understand the invention.

    And I also drop a reference with a cd with 1 0 encoded thereon as a 102. You made the functionality depend on the functionality of the computer as opposed to strictly the functionality of the disk.

    I cannot wait to get more B claims.

  22. Malcolm

    Sorry, do you mean the one asking what would happen to a claim for roll-2 if prior art roll-1 differed only in the music encoded?

    I would expect a rejection under 103, but not under 101.

  23. Lionel: By eliminating a whole class of subject matter you throw the baby out with the bathwater.

    My point is that in the real world this “baby” has a billion identical twins and you’ll never miss the one you threw out.

  24. Anony Mouse:
    You have to answer my Tinker Toy hypothetical before I can attempt to answer your question. Why is a machine useful when the bits and logic operations are created in explicit hardware (like the Tinker Toy computer) but not when the bits and logic are created on a computer readable medium? If your argument is that the Tinker Toy machine is not eligible for patent, then we may disagree but at least you are being logically consistent. If you insist that the Tinker Toy computer is eligible for patent, but the software is not, then I remain unsatisfied with your argument (which I’m sure concerns you greatly :-P ).

  25. RedMonkey: Software is not one of the four categories in 101. But a disk is.

    Again, please answer the question in my 11:54 am comment.

  26. Anony Mouse

    I think impartial means applying the rule the same way to everybody. Deciding what the rule should be in the first place is different. That second part is what we are struggling with.

    Courts do rely on experts when interpreting the law, but each side has one and they say different things. So a judge has to figure out who to believe.

    You get innovation status if the thing you invented differs from the prior art in a non-obvious way. This is supposed to be objective, but it’s hard to make it so.

  27. RedMonkey: A wax cylinder having undulating grooves for causing a needle to vibrate sounds like an article of manufacture under 101. As for whether it passes 102/103 we would rely on the wisdom of the examining corps.

    Yes, I know this. How about responding to my comment? Maybe try reading it again because you seem to have completely misunderstood it.

  28. Red Monkey,

    Sure nobody is perfect. But justice very much depend on being impartial, thus if we have an objective tool available, then it’s a good idea to use it. No? Even courts rely on expert whiteness’s…

    I don’t know the details about Alappat,
    but I would not give “innovation” status to a special purpose hardware that can be emulated by software with generic hardware (if that’s provided as prior art).

    I am probably hitting on principles of what “innovative enough” means…

  29. “Formally, you may say that the material embedding of software causes the hardware to spin in some way, but not the software (the idea!) itself.”

    Exactly. That’s why when you try to claim software, you always say something like

    “I claim a disk having encoded thereon some software which, when executed by a computer, causes it to do X, Y, and Z.

    You cannot say

    “I claim software which when executed by a computer causes it to do X, Y, and Z.”

    Software is not one of the four categories in 101. But a disk is.

  30. Anonymouse

    I think the Court in Alappat said that a general purpose computer programmed to do X becomes “in effect” a new machine. A lot of people argue about the words “in effect”, which to some means “not really, but we’ll pretend.”

    To the extent that the Court in Alappat was wrong, it wouldn’t be the first time law was inconsistent with reality. This isn’t a criticism of the law though. The purpose of law is to help people resolve disputes. It is not there to describe reality. That’s why we have science (including computer science).

  31. SteveW,

    Software is an information, an idea, a concept. Hardware is made of material.

    Formally, you may say that the material embedding of software causes the hardware to spin in some way, but not the software (the idea!) itself.

    As I said before, many are confused of simple use-mention error.

    If software is not an idea (not a method if you like), so what are we trying to patent?

  32. Night Writer Patent Attorney and Trilithon,

    on Nov 12, 2009 at 10:39 AM, “6” made a reference to Alappat case, specifically about “in effect” part.
    In my humble opinion, the idea is that if you take two systems software+generic-CPU and specialized-hardware functionaly doing the very same thing — these systems are different from perspective of a method.

    The same principle is applied in pharmacy: one company develops revolutionary product (e.g. human insulin), files for patent and another company develops another drug for the same treatment/function (e.g. human insulin-like, in concrete case take GLP) — it’s a different drug and patent does not apply.

    So dedicated hardware method is different than software+generic-CPU.

    It would be nice to find a precendent, but the software history is not that big, or is it?

  33. Anony Mouse:
    Pirates are going bananas. But the other thing is that piracy is not required. Microsoft Office and Windows are hardly pirated technologies, but they are copied.

    Of course the software causes the hardware to execute. I could use your argument to say that a wrench doesn’t turn a bolt:
    1) Assertion: The wrench turns the bolt.
    2) Falsification 1: If you put the wrench on a different, wrong-sized bolt, the bolt will not turn.
    3) Falsification 2: That wrench does not change the physical specifications of the bolt to enhance the capabilities of the bolt.
    4) Therefore, the wrench does not turn the bolt.

    Surely that doesn’t work.

  34. Malcolm

    I don’t know John Edison. I’ve hear of Thomas. I don’t think he tried to patent his cylinders. Maybe he figured he’d make more money on talking machines than on wax cylinders.

    A wax cylinder having undulating grooves for causing a needle to vibrate sounds like an article of manufacture under 101. As for whether it passes 102/103 we would rely on the wisdom of the examining corps.

  35. >>Nobody’s bamboozled, anony mouse. Those >>popular fads are cited to support the false >>premise that without software patents we’d all >>be sitting around a fire in a cave and carving >>bones with sharp rocks.

    The strawman shuffle.

  36. 6: >>before it became that

    Actually, I figured all this out in law school when I was paying the money.

  37. MM where was that argument that you said you could make that mathematical algorithms didn’t save lives?

    Shuffled on to your next diatribe have you?

  38. I also don’t know why so many people are bamboozled by iPhone, twitter, youtube or other software — these are just new implementations of old ideas, and they aren’t even new in software world

    Nobody’s bamboozled, anony mouse. Those popular fads are cited to support the false premise that without software patents we’d all be sitting around a fire in a cave and carving bones with sharp rocks.

  39. And let’s stop these ridiculous arguments about software. CPU + software or hardwired computer.

    They are the same. Software + CPU just makes the machine more flexible and easier to build.

    That’s it. The anti-software arguments are in effect penalizing the innovation of the CPU + software.

    No matter what yapping noises you make it is a machine. And a different machine with the software. A machine that transforms information. Simple.

  40. Night Writer Patent Attorney,

    It takes time, energy and space to transform ones thoughts, to write a novel and publish a book. Let’s patent that!

  41. SteveW,

    The copyright protection is not completely useless, for some purposes perhaps, but for open source it works, see General Public License at FSF.

    Also vendors use end-user-license-agreement that pops every time one installs the software. What does the (c) symbol mean in Help->About dialog?

    I am sorry, it seems to work de-facto, otherwise all pirates would go bananas.

    Also, software does not cause the CPU to execute it. Put the software on different architecture CPU and you will see a different effect. And at the same time, software cannot do more than what the hardware was designed to do.

    Not until we have completely autonomous self replicating machines which can improve on their own design, then nobody knows what laws apply.

  42. Transforming information is a transformation. It is governed by the laws of physics and takes time, energy, and space to transform.

    Information represented and then tranformed.

    Geez, really it is 2009 and you guys talk like it is 1491.

  43. Red Monkey,

    I don’t know about patentabily criteria, IANAL, that’s why I am here.

    I am listening what lawyer say and confronting this information with my expertise.

    As for the “walking the real world” it was HierarchyOfPontificationBuckets example that triggered this parable, and I don’t agree how software is treated here. If it all boils down to this, then yes, software patents are overlaping with copyrights. But apparently this is not the full story.

    I also don’t know why so many people are bamboozled by iPhone, twitter, youtube or other software — these are just new implementations of old ideas, and they aren’t even new in software world. The whole software+hardware treatment looks like one big use-mention error.

  44. HierarchyOfPontificationBuckets,

    I am not being dishonest about the science-part. I just read that one cannot patent an equation, that’s all. Thanks for pointing it out. As for computer science/engineering/arts — it is many faceted discipline that has ties nearly with all disciplines, including poetry (e.g. programming language design) and there are fundamental theories that are specific just to science of computing, but that is irrelevant here.

    The “[fill in the blank]” hypothetical example above works for computing machinery but does not work for software, because software itself is inanimate, it’s the executor/processor/hardware that moves the electrons. May I say that software without hardware/executing_platform is useless?
    Software cannot move the electrons by itself, that’s for sure.

    We may agree to disagree, but let’s not stop there.

    “Patents are supposed to encourage the useful arts, and history gives some idea of what kinds of useful arts should be patentable. Computers are apparatuses, clearly patentable. Physical changes to a computer that are new and useful are patentable.”

    OK, I have no problems with patenting special purpose computing devices (it is not widely available, moreover one can invent quantum computing or some other computing model that is different from todays generics, some controller might have special interface to the world — that could be patentable contribution), but I would like to discuss aspect of patenting pure software solution running on general purpose computer. Perhaps very specific software for starters: just open source software (perhaps I could generalize later).

    So you say patents are supposed to encourage the useful arts. This is their purpose, and without purpose the law should not be applicable?

    The open source community say it does not work for open source software and they give you the reasons on how it breaks down:
    1) patents require full disclosure of the invention so that it would not be lost and other would get benefit. Open source software is by definition open and disclosed and often you may get any version of it, so there are no benefits here. The proprietary software have no chance of making “full disclosure” because it would mean to publish software code in a readable form. And even if it were achieved, then when software is changed (e.g. for purely maintainance/fixing/security reasons) the question is: does that same patent still apply on new version of software? what if it was fixed by somebody else, does somebody else get a royalty-free right to use it?

    2) patents grant unlimited monopoly over the technology but limited in time (please correct me if I am wrong). Again, this goes against open source software, because everybody is encouraged to try the software instead of restraining from.

    3) the patent filing procedure takes a long time, longer than the software production cycle.

    4) the patents last for 20 years(under US law?), while by today’s standards the software is considered obsolete within a few years.

    5) with software, just about anyone can be an inventor, but only the big companies can afford the patent system.

    so how does the patent system encourages software arts?

    If we would take a historical perspective, then patent system is very old compared with the software technology and especially open source. And this technology is radically different from what we had before (in terms of production cycles, distribution costs and lifetime).
    So different conclusions can be drawn from here, I would not speculate.

  45. Anony Mouse

    So your theory is that that a computer with its software is like a player piano with a roll. Loading the roll does not change the piano. So the roll is not patentable because it does not do anything by itself, i.e. it does not “walk the real world”?

  46. RedMOnkey: So it has a functional aspect to it that isn’t present in literary works. It may be closer to the roll in a player piano.

    Were any patents filed on piano rolls that differed from piano player rolls in the prior art solely on the basis of the music encoded by the piano roll?

    Just curious.

    Same question with phonographs which, as you know, are no less mechanical than piano rolls. You’ve heard of John Edison? He was a somewhat competitive man known to file a patent or two. Did he file any such patents?

  47. Anony Mouse:
    Algorithms are not mere mathematical equations. They are methods and are protectable (and should be).

    The problem with copyright for software is that such protection is useless. If software should not be patentable, then just make the conclusion that it is not protectable and be done with it. Pretending that copyright is a form of protection with software is silly, and I imagine that most people that suggest this are at least half-joking. With copyright protection, the copy-er can simply change variable names or make other trivial changes (trivial from a functionality standpoint, but relevant to copyright considerations) and the copyright offers no protection. The essence of that which is to be protected is the algorithm which is not amenable to copyright protection.

    Your book-text computer-software analogy is flawed. Utility is the improper measure of comparison. Text does not cause the book to execute a method.

    Would you support someone patenting a unique configuration of tinker-toys that computed a problem, and maybe changed a valve position based on the computed parameters? If you would – then why not software? The person building that didn’t invent tinker-toys or even do something with them that they weren’t intended to do (assuming he just connects them in the standard ways they are intended). If you wouldn’t – I’d like to hear the statutory argument against that one.

  48. Anony Mouse
    I think you’re missing my point, because you’re still basing your arguments on “what software actually is, in and of itself”. I’m saying that this is beside the point. A “software patent” isn’t actually about the software itself, it’s about what the software is actually for, what it actually does when you actually put it to work, which may or may not be patentable, or even patent-eligible, depending on a range of issues that have nothing to do with the basic fact that software is involved.

  49. “Pure abstract software is like the map. The territory is the real world where it gets put to real use.”

    OK, that is an interesting parable, but it does not help software patents, because software is just the recipe that the general purpose computing hardware is executing, i.e. it’s the hardware (CPU and it’s peripherals) that is “walking” the real world. And it is exactly my conviction that such inovations should belong to electronics.

    You may refer to jargon expressions like the “software controls this and that”, but that is misnomer as everything is performed by the controller:
    1) be it a different controller it might behave in a slightly different way: e.g. the same abstract software can be compiled for different architectures and they may perform differently (different speed, different parallel thread inteleaving behavior, scheduling etc).
    2) software itself cannot perform any more functionality that the underlying hardware has been designed to perform.

    I subscribe to the idea that general purpose computing hardware without software is useless, but so are the books without text. On the other hand, text cannot jump out of the book by itself unless somebody else tears the pages out (perhaps by reading and performing the instructions in the book).

  50. Anony Mouse,

    You get bogged in irrelevancies like all the rest. Patent law is concerned with the useful, technical arts (to put it informally). Patents are supposed to encourage the useful arts, and history gives some idea of what kinds of useful arts should be patentable. Computers are apparatuses, clearly patentable. Physical changes to a computer that are new and useful are patentable. How that change occurs is completely irrelevant to patentability. The change could be a rewired/redesigned circuit. A change in hardware could change the logical way that the bus operates. The change to the circuit alone is meaningless, its the effect it has that is useful.

    The metaphysics of what software is is irrelevant. It has all the hallmarks of something patentable. It is tangible. It is undoubtedly useful in the same ways that other patentable things are. It is often discovered using mathematical analysis and insight. You can put software in many different pigeonholes; yes it has similarities to art/literature, yes it has similarities to math and laws of nature, etc. But it also sometimes fits into other pigeonholes that justify it being “ownable” by those who create it.

    See the “[fill in the blank]” hypothetical above. You could fill in the blank with “chemical” and the answer would be patentable. You could fill in the blank with “computer” and all statements would still be true. I alter the electrons in a chemical, it changes in a new and useful way. Think of a CPU as a kind of chemical. It’s silicon. I alter the electrons in that silicon a certain way and I change it’s physical properties, as shown by the observable ways it functions differently. That’s how we know a chemical compound has changed (say after being heated or addition of a catalyst). We can measure its observable properties. We don’t care whether atomic-level alteration is patentable or not. We don’t even care if that alteration is ephemeral. We observe some of its uses and allow one to patent it if other requirements are met.

    People are opposed to software patents for personal reasons. That’s fine, but at least try to be honest about it. It’s been show time after time on this blog that there are no sound legal reasons to exclude software per se. The opensource folks are a bit extreme but their arguments are honest (though the facts to support them are questionable).

    The difference between a FPGA and an ordinary CPU has never been addressed. No one can explain why the FPGA burned to implement a new and etc. algorithm is patentable, yet another CPU that is only dynamically configured to implement the same algorithm is somehow not patentable.

    Software is obviously different than art and literature in ways that are relevant to patent eligibility. Software is used directly to produce advancements in other patentable fields. Can artistic literature find oil, identify drug contradictions, build a chip from a high-level specification, model a nuclear reactor, etc. If you list benefits of any other patentable technology (chemistry, mechanics, etc.), you can find software that not only benefits man in similar ways, but even improves the ability of these other fields to provide those benefits.

    The daily travesty on this blog is the way people ignore reality and commit intellectual dishonesty in order to support what is merely personal opinion.

    Did you say you are a PhD in Computer Science? Why isn’t your department in the liberal arts side of things? Why is your degree called a “science”? Do CS professors and students really belong in science/engineering department? Shouldn’t they be on the part of campus where the poets reside? Why do CS researchers bother to publish scientific papers? Do you ever find computer science developments discussed in Science, Scientific American, Nature, and other prestigious journals?

    “this process is no different than discovering laws of say physics”.

    Like I said, intellectual dishonesty. All fields of science and engineering could be treated the same way. Chemistry? Eh, that special combination of compounds was just waiting to be discovered. New kind of logic gate? Of course, that’s just a law of nature that was waiting to be discovered.

    If you flip through a book of modern computing algorithms, you seriously believe these are just laws of nature? And I don’t want to get into that philosophical discussion, since there are something like a dozen competing definitions of “law of nature”. You can put a lot of things in the “law of nature” pigeonhole, but that doesn’t negate that those things may also fit in other pigeonholes also.

  51. Anonymouse

    SW is almost like a recipe in a book, but with a difference. When a chef reads the recipe, he is not compelled to prepare the dish. The recipe does not control him. He can even deviate from the recipe if he wishes.

    In contrast, SW actually controls the computer. So it has a functional aspect to it that isn’t present in literary works. It may be closer to the roll in a player piano.

  52. >>Pure abstract software is like the map

    Can a person of ordinary skill in the art make and use the invention? It is not abstract.

    A machine that with functionality x. Whether it is implemented in hardware or with a CPU + software is only the form. The substance is a machine that can process information.

    CPU + software is only a clever trick to make it easier to build the machine.

  53. “Medium” might not be the best word – I’m trying to draw a distinction between “software in it’s abstract form” – which we can all have endless “fun” arguing about – and the non-abstract practical utility that gives software its commercial value (that being the reason the argument exists at all).

    “The map is not the territory”. Pure abstract software is like the map. The territory is the real world where it gets put to real use.

  54. Thanks Trilithon.

    “What most software patents seek to protect is new, useful and commercially valuable functionality that is enabled by computer technology, and which is NOT protected by copyright.”

    OK, that is fair.

    “Software is the medium by which that functionality is implemented, not the substance of what is sought to be protected.”

    Now here I see contradiction:
    Software in it’s raw form is just a piece of information, equivalent to a text in the book, I believe this is covered by copyright and cannot be subject of patents (please correct me if I am wrong).
    Software in it’s abstract form is just an algorithm (a recipe) to perform some function described by mathematics.
    This is not a philosophy, this is what it is: this is the hardcore software engineering, this is how software is created (it is typed-in into computer following mathematical design). Mathematical equations are what they are, just like laws of nature independent on who discovered/invented them. We can even talk about properties of algorithms (like any other properties of natural world), and why they are the way they are, *objectively* without any space for innovation or even interpretation. This is pretty much like any natural science. The human ingenuity is needed to invent/discover those equations, that is true, but this process is no different than discovering laws of say physics.

    Now, I am not sure what you mean by media, could you explain what it is and how software fits this term?

  55. Anony Mouse

    so you can Pile it Higher and Deeper. big whoop. in fact, that’s your problem. you think you are so smart in one area that it carries over into another area wherein you are as dumb as a rock. you think the universe revolves around you and software. it doesnt. patent law is not exclusive to software. the rules are meant to be broad enough to cover inventive areas now and into the future. software related item are only one small set of the system and the tail shouldnt wag the dog.

    lets make a deal. you stop posting in utter ignorance about what’s wrong with the legal system and I won’t have to post ad homonym attacks on your stupidity. we both win.

    as to your conflation of law for the common person and your attempt at painting me as an ‘patent law is only for patent lawyers type’, nice try with the class warfare crap but im not buying that line. I don’t care if you are a lawyer or not – just get it right and you wont hear from me.

  56. “In fact, all of the software is (already) protected by copyright law. So what do you want to protect by patents? virtual canvas? your buseness model? math? some peculiar laws of nature?”

    What most software patents seek to protect is new, useful and commercially valuable functionality that is enabled by computer technology, and which is NOT protected by copyright. Software is the medium by which that functionality is implemented, not the substance of what is sought to be protected. These are the facts, irrespective of any position regarding the rights and wrongs of software patents.

    Without software, a computer is an elaborate paperweight. Software is what makes computers useful. Human ingenuity is involved in inventing new and useful things for computers to do AND in developing the software to make those things happen.

    Is it possible to have a grown up debate about how intellectual property rights, including patents and copyright, should apply to the fruits of such activities and stop with the meaningless philosophical BS about the “true nature” of information, math, algorithms and the rest? (That question is aimed at both sides)

  57. Hey, “hindsight from the future”, drop your ad-hominem attacks, I have a PhD in computer science, so I can lift myself at the level of philosophy if you want. I assume you are a lawer, but totally ignorant in software. Here you go.
    Cheers.

  58. Anony Mouse,

    what is your point? you have no basis in the law, yet you want to determine what is important or not in a legal sense. you cannot tell what is broken or not because you have no clue on what you are talking about.

    my view is trolling if you want to call it that. i call it like i see it and i see that you like to talk about things that you dont know anything about yet you want to be taken seriously. seriously, your view isnt worth spit.

    you want a suggestion? drop your shovel and your agenda and try to unerstand that patent law is more than just about software and that software is not and should not be either treated separately or be the main focus.

  59. HierarchyOfPontificationBuckets wrote:
    “Suppose one has a [fill in the blank] and it is made in part of electrons. One finds a new and unobvious way to manipulate the electrons in the [fill in the blank]. The thus manipulated [fill in the blank] is useful for scientific or industrial purposes. But for the manipulated [fill in the blank] various human ailments would not be cured.
    Is manipulated [fill in the blank] patentable?”

    Such invention clearly belongs to the hardware (electronics), and I think it is patentable (IANAL). Moreover such invention would not be possible in the field of software. It might be discovered using software, but it would be an odd artifact of the hardware (kind of a bug according to hardware specification, because this behavior would not be mentioned in the hardware specification), and even then one would still qualify such invention in the field of hardware (electronics or whatever).
    So I don’t see software in here.

  60. “hindsight from the future”, what is your point? really. most of your point is pure trolling instead of addressing the issue.

    My point was exactly that “material transformations” as discussed above by “6”, “Noise above the law” and a few others aren’t that important. If they are important on deciding on what is patentable and what is not, then the patent system itself is incoherent and thus broken (under such system one can use legal tricks to patent any work of art, business model or even practice of law).
    Instead, I am trying to step aside from this material point of view. So what else is left for me to consider? I am looking at other fields! Any more suggestions?
    Thanks.

  61. “I would love to understand…”

    no, you wouldn’t. else you would not keep repeating the mantra that “all” evidence shows that software engineering is no different than other human activities usch as art, economics or law.

    “IANAL” – no kidding. why then do you think that your view on the law, even what is material to the law is important? lack of this type of understanding cascades through the rest of your position. what you think is material for legal transformations is clearly insufficient and propagates more confusion. you only reinforce your errant views. if you really want to “understand”, stop your rants.

    its like a guy deep in a hole with a shovel who mutters, i really want to get out, as he thrusts the spade yet again into the ground beneath his feet.

  62. Red Monkey, I agree with you, but not-so-old rulings against Microsoft on anti-competitive practices in samba project show that proprietary vendors aren’t just not-motivated to disclose their “inventions”, but they would even put effort on (continuous) obfuscation.
    Note that useful code is constantly improved, thus it does not make sense to maintain in on a patent sheet either.

    Details aside, I would love to understand what it is really in software that needs a protection by patent system. So far all evidence shows that software engineering is no different than other human activities such as art, economics or law.

  63. Would providing source code really be all that helpful to enablement? It’s often pretty hard to understand source code. I think a good block diagram or flow chart is often much more helpful than page after page of dense source code.

  64. Dear commenters, thanks for insightful discussion.
    IANAL, but I think from material point of view, the arguments from both sides are relevant and valid. Here is how:
    1) general purpose computing devices (such as CPU) is the hardware, i.e. the apparatus that needs innovative material transformations to get it right (cf. phone invention), but the software does not change the hardware significantly, i.e. the structure of the hardware (as in design blueprints, models etc) is still the same, thus software is not material where one can apply material transformations and get innovation in a classical sense of invention.
    2) if you look at software as information, one requires to store it for processing, thus this activity inevitably will result in some kind of material transformation (ink on paper, electrons on circuit, magnetic fields on disk), moreover one can compile the software into dedicated hardware, thus software involves material transformation.
    You can see these points do not cohere (and that’s why you have so many disagreements), thus I believe we cannot use such arguments.
    Software is not the only field in such unfortunate position. Look at:
    a) literature and other arts
    b) economics
    c) law
    — there are clear innovation steps in those fields (every painting or a book is unique, thus innovative, there are always startup companies creating new ways of conducting businesses, and there new precedents at courts), but patents are not applied there.
    Why? The material arguments (as shown above) clearly do not apply (all of them involve material transformations and have huge impact on our lives). So why business models are not patentable? Paintings are not patentable? Way of defending oneself is not patentable?
    Instead, RedHat and others, look at patents from higher abstraction, they look from economic perspective, and roughly this is what they say:
    1) software evolves way too fast for patents to make positive impact or even sense
    2) software patents do not constitute full disclosure of the invention as it is now (I have not seen any source code for any of them)
    3) the purified idea of any software is just a mathematical equation that can be interpreted by machine. You cannot patent math, do you?
    4) the general purpose computing devices are available to everyone at the same scale as canvas and paint (cf. art), money (cf. business), rights (cf. law). The free/open source software by definition is available to everyone. Isn’t the software in the same boat?
    In fact, all of the software is (already) protected by copyright law. So what do you want to protect by patents? virtual canvas? your buseness model? math? some peculiar laws of nature?

  65. What are trolls and why are they good.I see an example of a bankrupt company selling its patents to a troll who enforces them against other companies terrible wright.No wrong The company wouldent have gone out of business if the infringers hadent run it out of business.Its like selling out to bounty hunters when you decide you cant afford legal costs or the characters are unsavory enough that you would not dare to be the benifactor of a legal action against them. Them there is more frequently the situation where the deep pockets of corperations can only be equaled by a partnere with deep pockets and the long term patience to litigate for 8 to 20 yesrs. This is where at least the inventor gets something usually 1% of profits for his ingenious invention the troll gets 99%.However thios is good because the corperations refkuse to deal at all with independant inventors There only willing to hire for peanuts or steal it then backdate it.

  66. Malcolm,

    How is that sam hill doing?

    Care to discuss the Printed Matter Doctrine on the merits yet?

    …thought not.

  67. MM where is that argument against mathematical algorithms saving lives?

    Skipped on to the next thought have you?

  68. Suppose one has a [fill in the blank] and it is made in part of electrons. One finds a new and unobvious way to manipulate the electrons in the [fill in the blank]. The thus manipulated [fill in the blank] is useful for scientific or industrial purposes. But for the manipulated [fill in the blank] various human ailments would not be cured.

    Is manipulated [fill in the blank] patentable?

  69. “The nub of the controversy seems to be whether a computer without a program is structurally different from one with a program”

    Is a chef holding a blank piece of paper “structurally different” from a chef holding a piece of paper with a recipe on it?

    Is a doctor who lacks knowledge of correlation X
    “structurally different” from a doctor who possesses the knowledge?

    The answer to all these questions is “yes,” if you are a pseudo-philosophically wanker or a software patent teabagger. But for everyone else, including judges and juries, it’s a resounding “no.”

    Just deal with it, Troll.

  70. “”How do you explain away a circuit that implements the same functionallity as CPU + software.”

    Explain it away? It is entirely irrelevant, it is outside the scope of the conversation….

    …This equivalence must have some relevancy to whether or not a table is patentable!

    Give me a break man, that’s outside the scope of the conversation. It is extremely irrelevant. Extremely. Not just a little bit. Not like, it’s on the borders of relevancy. It’s way outside relevancy, it took a vacation a million miles away from relevancy.”

    The scope of the conversation is…..
    “The nub of the controversy seems to be whether a computer without a program is structurally different from one with a program”

    Or put another way,

    Whether a machine configured with software is patentable apart from a machine NOT configured with software.

    Tell you what 6, let’s give you a machine without software and let you play in the corner m’K?

    Don’t try to change the base facts by adding additional programming or loading of software to your original machine. Such actions obviously change the machine and you only get the original.

    After crying that your “same machine” cannot do the same things that a machine loaded with software can do, then we’ll talk about your habits of eating paste.

  71. “Computers were built as complete circuits until someone invented the CPU.”

    And allowed people to simply use the SAME CPU for different things WITHOUT CHANGING THE CPU.

    That is, at first we had hammers that would only hit specific types of nails that they were designed to hit. Then someone came along and invented a hammer that, gasp, you could use to hit all nails, and any upstart patent attorneys, without changing the design of the hammer.

    OMG OMG OMG!!!! I know you’re thinking. This is GREAT, one hammer to hit all nails with? Now I can patent all the little changes that happen to a hammer when you strike different types of nails by patenting the act of hitting those nails with a generic hammer or patenting a hammer having those types of little changes! OMG OMG OMG!!!

    NO U.

    “How do you explain away a circuit that implements the same functionallity as CPU + software.”

    Explain it away? It is entirely irrelevant, it is outside the scope of the conversation. Equivalence of two things in some senses (their function) does not make them the same thing.

    That’s like me asking you “how do you explain away a table with wheels implementing the same functionality as a chair with wheels?” They both provide a movable seat after all, they must be equivalent! This equivalence must have some relevancy to whether or not a table is patentable!

    Give me a break man, that’s outside the scope of the conversation. It is extremely irrelevant. Extremely. Not just a little bit. Not like, it’s on the borders of relevancy. It’s way outside relevancy, it took a vacation a million miles away from relevancy.

    “Form over substance is what you are arguing.”

    Actually the substance is that specific structure of that electrical circuit. Or of the CPU. Either one. And that is specifically what I argue for. I argue for the substance in every argument we have. You then argue for the form of writing the claim to an algorithm in the form of it being on a computer. Sure, it isn’t the worst argument in the whole world, but it is none the less arguing form over substance. What you want to do is preclude people from executing the algorithm and so you put it in a form that is arguably one of substance. Never the less you are still just plopping down form to override the preclusion of the substance that you want, to preclude use of the algorithm. That is the definition of putting form before substance.

    “The fact is that advancements in technology has created the ability to create abstractions that we can work with. Some of us haven’t figured that out yet.”

    Actually we all know exactly that, and that is precisely why patenting of this kind is prohibited, or at least will be as soon as someone with half a jar of brain thinks about the subject.

    “Besides 6, what has changed is that information was transformed.”

    I believe we’re discussing structural claims right now, i.e. product/apparatus claims. You didn’t transform any “information” in a product claim (because I would get you for mixing stat classes by putting a method step in a product claim), and even if you did, “information” is not the structure.

    “If people had ready access to machines for manufacturnig drugs they would say the same thing. Why can’t I just set the machine to manufacture HIV medicenes? Why can’t I just build whatever electronic gadget that I want.”

    You are absolutely right, and that’s why in the perhaps not so distant future patent law may very well go the way of the dino. When patent law ceases to advance the useful arts it will have outlived its purpose. Then again, such a day may never come. But that seems unlikely what with all the nearly completely self-replicating manufacturing machines being made nowadays. That sht is off the hook yo. Of course, at the same time, we might all become one singular interconnected entity before that kind of thing happens. Who knows what will happen? In the mean time, patent law is just fine doing as it always did.

    “I think this is a religeous problem. That people like Stevens think that these machines are from the devil and are challenging our supremacy.”

    No it isn’t, it is a problem of the basics of patent law. Although if it were it would be interesting. I presume you’ve read or know a bit about the Dune universe.

    “But Alappat already answered this in the affirmative.”

    Actually Alappat stated that “in effect” it becomes a new machine. And what the more precisely stated was that they had previously held that in cases that preceded Alappat. That was technically a false statement, and if you read the previous cases that they recite you will see why. And in any event, I couldn’t give two shts less about “effects”, I care about the structure and whether or not it changed. And the USSC I do believe feels the same way.

    I don’t magically become NAL by putting on a dress, wig, and mask, but “in effect” I may very well be able to pass as her, save for her nonsensical musings.

    In any event, I’m through arguing with you about this today as well. I needed you yesterday to comment on the BPAI decision about MPF language and functional language. Perhaps you’ll slide over there and give your two cents.

  72. Don’t expect MM to stay and fight. He throws out nonsense and runs to the next thread when you pin him down. Really quite a sad mean troll.

  73. MM wrote “There. Can we end the dumbaxx fantasy scenarios now?”

    Your post was an argument for software patents. You miss the whole point of the argument Mooney.

    By eliminating a whole class of subject matter you throw the baby out with the bathwater.

  74. “Can we end the dumbaxx fantasy scenarios now?”

    Ok. Are reality scenarios acceptable to you?

    link to sciencedaily.com

    “Keeping Hearts Pumping With ‘LifeFlow': Smart IV Device To Save Lives At Disaster Sites … Tel Aviv University’s new LifeFlow device, currently in development, could become the paramedic’s new best friend — and save many lives in the process. The technology is based on a highly sophisticated mathematical algorithm which, when applied to a computer-controlled intravenous (IV) drip, can accurately assess what percentage of a person’s blood stores are left. The device then administers the proper amount and type of IV fluid, permitting the paramedic to move on to the next disaster victim with fewer worries — and more confidence that the first victim will remain stable before arriving at the emergency room.”

    In case you missed it: “save many lives [by using] a highly sophisticated computer algorithm …”

    Saving lives useful enough?

  75. Besides, 6 is nothing but an abstraction. We only see text that is typed by an entity that calls itself 6. 6 and MM are likely bots that have infected this blog. Both are abstractions.

  76. 6
    I’m aware of the controversy re Bell’s invention, so let’s abstract away and just say “the inventor”.

    The nub of the controversy seems to be whether a computer without a program is structurally different from one with a program. But Alappat already answered this in the affirmative. Are you suggesting the court in Alappat was wrong?

  77. His ridiculous explanation that you just go to one of those nerds to get the thing on a computer illustrates vast ignorance. Let us take a look at the qualifications of the people that are working on information processing and we see that the best and brightest that aren’t after robbing the US of all its money are in computation intelligence.

  78. Besides 6, what has changed is that information was transformed. A list for example cannot be sorted without space, time, and energy.

    A machine that transforms information and performs tasks that people get paid to perform. How in the world could that not be eligible for patentability?

    I think this is a religeous problem. That people like Stevens think that these machines are from the devil and are challenging our supremacy.

  79. And by the way, the reality is that these arguments are being formed in people’s heads because they have access to computers.

    If people had ready access to machines for manufacturnig drugs they would say the same thing. Why can’t I just set the machine to manufacture HIV medicenes? Why can’t I just build whatever electronic gadget that I want.

    It is merely because they can with softare because they access.

  80. 6, sorry, but you are wrong.

    Computers were built as complete circuits until someone invented the CPU. The CPU + software is a short hand for a giant machine.

    I could build a CPU for a electrical circuit too. Does that mean that all electrical circuits are then nothing more then the one CPU for electrical circuits? No.

    Form over substance is what you are arguing.

    How do you explain away a circuit that implements the same functionallity as CPU + software.

    The fact is that advancements in technology has created the ability to create abstractions that we can work with. Some of us haven’t figured that out yet.


  81. Bell “found” the phone? Where? Under his bed?

    There was no pre-existing phone to find.

    Actually it is rumored that Bell did indeed “steal” the design from someone else. It appears likely from the evidence that he “found” the phone in the improperly opened, supposedly secured, archives of the PTO.

  82. “the programming is separate from the initial invention.”

    That’s the falsehood which you keep telling yourself and which nobody who has a brain, the USSC included, is buying. “Programming”, i.e. pushing buttons on a keyboard or otherwise providing input, is simply using the machine, just like the man who uses a saw, a hammer, a table, a TV, a radio, a train, a plane, a lightbulb or anything else. The fact that there are minor structural changes to these devices during there use is of no consequence when discussing any of them (the hammer’s head expanding slightly to absorb the impact of a particular blow). In the same fashion there is nothing magical about your using a computer compared to your using any of these other things or anything magical about the incidental structural changes that take place within a computer when you use it. And as you are well aware, to be entitled to a new use claim to one of these old devices the old device must not have been capable of that use prior to your changing the device structurally, which you do not do in the programming case. That is, you actually had to have invented the enabling device for that use. And by that, I don’t mean the circular logic of: I put it to a new use (used a new algorithm) therefore it is a new machine, since it’s a new machine therefore my new use this machine is patentable! Try that ridiculous argument in any other art and see how far it gets you. Here’s a hint: it’ll get you about as far as a rejection.

    There is no simpler way to explain this to you.

    Other than perhaps:

    NO U

    Your nonsensical days are numbered.

    “The point being that just because you can steal the software and it isn’t reduced from the original does not make it any less stealing.”

    We already dealt with the stealing nonsense before that little scenario. Are you still hung up on the stealing nonsense? Come on. It’s not stealing, by your own laws it is “infringement” at WORST.

    “Your moral compass is busted.”

    I will not take issue with this statement.

    Have any last say you wish, I’m through discussing it with you today.

  83. Besides we magical know what to do and just because it happens to be exactly like commercial products doesn’t matter because we provide the source code for free so we are doing good so laws shouldn’t apply to us.

    We all know that angels give people ideas and just isn’t right to stop the flow of information from angels to people.

  84. Why we learned all there was to learn and then we had a good night sleep and then we sat down and invented exactly what was there, but we don’t remember what was there after our sleep.

    And, people come and sue us as if they had invented something when we all know that it was already there. It is an outrage that people would sue us for doing what we want to do. Why we weren’t motivated to write this by no patent law and so nobody is motivated by no patent law.

    Just an outrage the whole thing. We should be able to do whatever we want to do. Plus why there ain’t nothing to all this. All you do is learn what others do and then copy it. What’s the big deal?

  85. smashmouth football,

    sorry to lose you – software is a term that is widely used and can be defined multiple ways. The end product of software (as SteveW put it – software ona computer) when viewed as a static entity can be considered as a manufacture. The software in action as it were, the method underway, could be classified as a process. So depending on the circumstance, different classifications may apply.

    A more interesting discussion may center on “state”. Did the CAFC mean to imply that a process for melting ice, changing the state of water, passes the MOT test?

  86. Bell “found” the phone? Where? Under his bed?

    There was no pre-existing phone to find. Sure all the parts existed and a phone could have been put together at any time by anyone. Bell happened to be the first. So he discovered the possibility of putting the phone together. But “possibility” is not what gets claimed.

    Same is true for software, but the “parts” that get assembled are pre-existing known logical operations.

  87. Do not know what to say. However, it is often not easy to say the right software patents. If logos, designs, models, brands, could have, but the software, I guess not. To me, software is just a development, not something new discoveries, such as when Bell found the phone, or Marconi with radio. So, what should be patented in software?

  88. “”By the by, there is no statutory category called “carriers for methods”.
    – actually, the statutory category is called manufacture.”

    Posted by: Noise above Law | Nov 11, 2009 at 04:27 PM

    You lost me here. I thought software generally was a method or process. (In a previous post, Posted by: SteveW | Nov 11, 2009 at 01:24 PM, he said “software is just a carrier for methods.” That’s why I’m equating software with “a carrier for methods.”)

  89. “EXAMPLE 3: I just invented software that will diagnosis every form of cancer ten years before it strikes and also provides a guaranteed cure. It passes 102, 103 and 112 but alas is not statutory subject matter. There’s no point in trying to commercialize, because the established players can readily re-verse engineer and copy my algorithm. I could try to approach one of those players for a deal, but why should they pay up if their competitors will copy them as soon as they commercialize? Sure, first-to-market may have some value, but not significant given the ease of copying. I guess I shouldn’t have bothered in the first place… Millions of people will die unnecessarily now, all because the world’s most precious and important industry was denied its fundamental rights to patents.

    There. Can we end the dumbaxx fantasy scenarios now?”

    Posted by: Malcolm Mooney | Nov 11, 2009 at 12:35 PM

    With all due respect, don’t you think this is a strawman argument? (I hasten to add I am not in the group on this blog that engages in unfounded, gratuitous attacks against you. Sometimes, but certainly not always, I agree with your comments. But not here.)

  90. At 11:05 p.m. Nov. 11, 6 said in part:
    “”Taking without asking – even for a little while – is still stealing.”

    Not really:

    The actus reus of theft is usually defined as an unauthorised taking, keeping or using of another’s property which MUST be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.”

    Although intent permanently to deprive the owner of his rightful possession was an element of theft at common law, in virtually any state in the U.S. it is no longer necessary. For example, under Maryland’s consolidated theft statute it is sufficient that the defendant “intends to deprive the owner of the property.” See Md. Code, Section 7-104 of the Criminal Law Article.
    This has been interpreted to cover “temporary” deprivations of the possessory rights of the lawful owner. And that’s the rule in the vast majority of states.

  91. Stop pretending to be a wanna be lawyer – the definition of “is” is…

    “..is usually defined as” – I think we know who needs to be slapped here. Straight up – and directly in a moral sense, repeat your position with a straight face, and I will show you a pure psychopath.

    Yes we know cheating is a separate category of crime 6 – however for you, both are reflective of your apparent lack of moral standards. Or perhaps you don’t understand the subtlety of the parrallel use of the colloquialism of “borrowing” – To reach down to your level, maybe I should just drop the N word.

    “That’s what made his analogy bad and what I changed so that my analogy closer fit the situation of “stealing” a patented software idea” – and you missed the point. Clearly. The point being that just because you can steal the software and it isn’t reduced from the original does not make it any less stealing. Apply all the actus reus and men rea you want. You are still WRONG. You are still in the WRONG. Your moral compass is busted.

    Stemming from SteveW’s use “software in a computer.” – that’s pretty much a manufacture. It’s a new machine. I’m sure you got the memo. It was sent by the courts and even by Lord Kappos.

    “and program it however they want”

    But 6 – the programming is separate from the initial invention. Back to the old briar rabbit tricks of adding additional facts after a response – the original invention was the computer. It was NOT additional programming. Or are you saying that when programmed, the computer becomes a new invention apart from the invnetion of the original computer? Since programming can obviously lead to invention, you are not free to invent at will and without regard to what others invent. This is true in ALL arts – as an examiner, I would hope you know this.

    BTW, crayons and paste are about your level of intellectual arts. You really should stop eating them.

  92. ” True borrowing requires that the owner ALLOW you to borrow.”

    Oh you caught that did ya? :) Who says my “untrue borrowing” is wrong? I say it’s in a gray area at worst.

    “Taking without asking – even for a little while – is still stealing.”

    Not really:

    The actus reus of theft is usually defined as an unauthorised taking, keeping or using of another’s property which MUST be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.

    “- In a related story, 6 couldn’t understand why his teachers were so mad because he “borrowed” his neighbor’s test answers. Neither could 6 understand why his parents did not accept his logic.”

    Cheating is a different crime noise, I know you have trouble with these kinds of distinctions, but think about it for awhile.

    “Oh, and btw, you can NOT use at will since part of the idea behind appropriating the property FROM you is that you no longer have it”

    That’s what made his analogy bad and what I changed so that my analogy closer fit the situation of “stealing” a patented software idea. The original guy still gets to use the software idea. So I get to still use my beachfront property. It’s a better analogy than the one he proffered. And my analogy is the one I accepted, if you paid attention you would have noticed that.

    If you can assure my fame (to my satisfaction) and that people will pay me to buy property I will buy a beachfront property tomorrow that you can appropriate for public use.

    “So now 6 thinks programming is not a real job.”

    No, what I said is being a small “independent” developer who sits and patents software is not a real job.

    “- WRONG – 6, the people who invented the machine can use the machine THEY invented all they want. ”

    Yeah, right. Keep on believin’ that Noise.

    “- actually, the statutory category is called manufacture.”

    A manufacture is a carrier for a method?

    LOLOLOLOLOLOLOLOLOLOLOLOLOL

    Wait, wait, wait LOLOLOLOLOLOLOLOLOLOLOLOLOLOL

    Now Noise, I know your reading comp is rather low, and you skip every other word of my posts, but if you can’t do better then spare me the reply. I mean seriously?

    “Our friend Alappat (BTW still the Law), tells us that the new capabilities provided by OTHER people’s inventions change the machine. Without stealing, um sorry “borrowing” the software to load on the machine, the original inventor of the machine can use his original invention to his heart’s delight without ever worrying or being restricted. ”

    Your “friend” never even said such a thing. And even if they had, the guys at Intel are not free to sit at a computer that they “invented” and program it however they want since someone sitting 4000 miles away can stop them from programming it however they want by filing a patent on the software that the guys at Intel are programming and then suing them.

    If I met you irl and you spouted such nonsense I’d probably spit directly into your eye and smack you around a little to make sure it stayed there. And that’s after the CJ did the same. Then I’d send you to make a sandwich since the intellectual arts elude your grasp.

  93. The claim covers “germinating [brocoli] seeds … harvesting [the] sprouts … [and] form[ing] a food product” from the sprouts. I have a bag full of old brocoli seeds from a lineage grown by my pappy and my pappy’s pappy. We never bought no seeds from no one. Nothing I have has any durned license for letting me pick brocoli sprouts and putting them in my salad! I’m gonna harvest them fields of softare now.

  94. Why do you have to worry about patents when you grow or harvest? If you buy the seeds, they come with a license to use. If you harvest with a combine, it comes with a license to use whatever patented subject matter it contains. I don’t see what you’re worried about.

  95. “the industry didn’t blink…”

    Oh, that’s good and fine for a patent person like you Mooney. Me I’m just a poor farmer trying to scratch a living out of the earth. I can’t go consulting the thousands of patents every time I want to grow or harvest my crops. I’m no attorney. I can’t tell if a patent is valid or not. You can even grab that patent off the PTO website and there’s no indication that a court held it invalid. I’m not sure what “industry” didn’t blink, but I’m not in any industry, me just wants to grow me bloomin’ greens in peace and make them available to the starving people of the world.

    Alas, I must shelf my hoe and take up software development where I’m not aware of any lowly individual non-profit programmer being sued for patent infringement.

    I was also going to consider cutting my aspirin tablets into 81 milligram units since I heard daily low dose of aspirin is good for me ticker. But then I heard there was a patent on such low-dose aspirin regimen, even though aspirin has been around for ages. I’m doomed to an early death of heart disease if I don’t pay those onerous licensing fees.

  96. As Federico makes clear in his commentary on the 1953 Patent Act, anything may be the subject of patent protection so long as it is new, as further refined by 35 USC 103, and has utility. Therefore, it is this utility that must be examined when determining the patentability of software

    I’m all for heightened attention to the utility requirement of 101 but the idea that “anything may be the subject of patent protection so long as is new and non-obvious” has been debunked. It was debunked prior to the Bilksi oral arguments right here in these threads, and any pretensions to the contrary were crushed by the Justice’s comments.

    Let’s move on already.

  97. Ok, this patent was actually held invalid, but it just goes to show that there are rubbish patents outside software, yet no one calls for the end of patents in these fields]

    Blatantly false. And the industry didn’t blink when that claim was found invalid because it really and truly sucked as I and many others understood and acknowledged without reservation. One big difference between chem/bio and software. And as you are well aware, there are plenty of people who have called for the end of patents on engineered food.

    Also, how can people conclude instructions are not the type of thing that was intended to be patented when all the other fields that produce patentable subject matter all use instructions.

    Fixed the typo.

  98. **********”software that provides new innovative functionality”

    Can you give an example?

    Posted by: Malcolm Mooney | Nov 10, 2009 at 09:34 PM **********

    1. A downloadable browser plugin that lets users of the plugin ignore type pad blog post comments of selected commenters by placing a graphic over a screen display region dynamically determined as a function of a screen location of a textually recogized name of a selected commenter and a date located above that name.

    2. The plugin of claim 1 wherein the content of the graphic is an advertisement dynamically downloded from a server controlled by a provider of the plugin.

  99. Dear wk,

    Re:

    “I need to find a patent law blog that provides more objective views on patent issues.

    Do you care to refer one?”

    Please read Jaoi(TM) here — his views are objective for sure, Just like the “fair and balanced views” on Fox.

  100. This string of inanity by 6 has just too many items to ignore.

    “Stealing is wrong. Something like stealing is not necessarily wrong. For example, borrowing is like stealing in so far as one person gains an object and another person loses the object. Borrowing is not wrong though”
    – same line of reasoning put forth by those who pirate movies and music and such. “Where’s the harm?’ 6 seems to ask – we could begin with that such actions even called euphemistically called “borrowing” is still wrong. True borrowing requires that the owner ALLOW you to borrow. Taking without asking – even for a little while – is still stealing.

    – In a related story, 6 couldn’t understand why his teachers were so mad because he “borrowed” his neighbor’s test answers. Neither could 6 understand why his parents did not accept his logic.

    “I’ll go buy a piece of beach front property and you appropriate it for public USE. My recompense (in addition to having a nice piece of beachfront property that I can use at will) will be that I become famous and others will hire me to buy beachfront property. Deal accepted. At least it would be accepted if it weren’t for the fact that I’m already famous.”
    – No 6, you are famooos – not famous. There is a world of difference. Also since you accept, I expect you to start buying, and I don’t want to hear any excuse like you don’t have money. Chop chop. Oh, and btw, you can NOT use at will since part of the idea behind appropriating the property FROM you is that you no longer have it – hence the subtle shift from software with its low cost copying hurdle to an example where the property cannot be copied. TOO LATE – you accepted. Now get to buying that property!

    “”If I’m a small-time developer with a family to feed,” – You might look into getting a real job, one that doesn’t involve simply using other people’s inventions.”
    – wow, usually such a line of ignorance and chutzpah is more in line with a Malcolm post. So now 6 thinks programming is not a real job. 6, please remember to post that next time you want to get chummy over at groklaw. Oh yeah, tell them you are a patent examiner next time too. Tell me how that goes over (I know that your famoosity will increase).

    “…restrict the people who actually invent the machine from using their machine”.
    – WRONG – 6, the people who invented the machine can use the machine THEY invented all they want. Our friend Alappat (BTW still the Law), tells us that the new capabilities provided by OTHER people’s inventions change the machine. Without stealing, um sorry “borrowing” the software to load on the machine, the original inventor of the machine can use his original invention to his heart’s delight without ever worrying or being restricted. Kinda proves the point that secondary inventions are rather important.

    “By the by, there is no statutory category called “carriers for methods”.
    – actually, the statutory category is called manufacture.

  101. See patent 5,725,895.

    Claim 1: “A method of preparing a food product rich in glucosinolates, comprising germinating cruciferous seeds [e.g., BROCOLI], with the exception of cabbage, cress, mustard and radish seeds, and harvesting sprouts prior to the 2-leaf stage, to form a food product comprising a plurality of sprouts.”

    i.e., Food made of brocoli sprouts.

    Wow. This infringes my right to harvest brocoli sprouts from my back yard and put them in a salad. Those greedy capatilists are denying us food! My rights are trampled. All patents should be banned, and in particular patents that relate to producing food. Soon, we won’t be able to pick wild blueberries. What’s next, patents on breathing?

    [Ok, this patent was actually held invalid, but it just goes to show that there are rubbish patents outside software, yet no one calls for the end of patents in these fields]

  102. Ken,

    It’s a sound point. Also, how can people conclude software is not the type of thing that was intended to be patented when all the other fields that produce patentable subject matter all use software to push the boundaries of their field. Medicine, physics, chemistry, and all the other hard sciences often rely on specialized software (tools specific to their fields, not just word processors and operating systems) for advancement and discovery. We might as well say a new-unobvious-useful pencils and paper are not patentable.

    The concrete tangible tools used by scientists and engineers to directly perform their arts have been and will continue to be eligible for patenting.

  103. Consider a general processing system as a resource, like iron ore. Sitting there with no software it is basically a paper-weight, excepting for the fact that the millions of man hours that go into producing the equipment generates tax revenue for the government and occupies a rather intelleigent citizenry that might otherwise challenge the government is left without the production of the various components to occupy their time. Now software comes along and causes the general processing system to provide utility above and beyond its basic ability to maintain the spatial relationship between paper and an underlying substrate. In short, one could argue that any given part of the general processing system should not be afforded patent protection, because it basically has little more utility than a rock. Only when software is implemented in the general processing systemt does the same provide actual utility.
    So I ask you, why it is that the components that comprise a general processing system are deemed to satisfy the utility requirement of 35 USC 101: because they have potential utility. Well then so does software. It has potential utility, as well. As Federico makes clear in his commentary on the 1953 Patent Act, anything may be the subject of patent protection so long as it is new, as further refined by 35 USC 103, and has utility. Therefore, it is this utility that must be examined when determining the patentability of software. Without software, a general processing system would have no utility. Therefore, it is illogical to preclude from patentable subject that which provide something that is otherwise suitable for patent protection utility.

  104. 6, all I can say is that your posts are a perfect example of the type of thinking that is leading the anti-software patents movement. It’s clear to me we’ll have to agree to disagree on this one.

  105. “The bottom line on software, for me, is that software is just a carrier for methods. Many methods that could not have been performed in the past are now performable because we have the potential for automation and fast response provided by software in a computer. It stands to reason that this new capability is going to generate a number of methods that were previously impossible and not even considered. It will also generate a number of old methods performed in an automated way, which is where 102/103 should be utilized and perhaps is not being utilized effectively. If the method has already been done, then it’s not new even with a computer. If it has not been done, then it’s silly to say the method can’t be patentable merely because it’s done by a computer.”

    You appear to be limiting yourself to, more or less, industrial processes or very complex everyday/business processes. That would be considerably less objectionable, however, you are overlooking patents like patent hawk’s “toolbar” patent. Sure, how to adjust a toolbar was never done outside a computer, but then again, that situation doesn’t really fit into your categories. There is still much to be objected to even under your proposed regime.

    And that’s setting aside mentioning that it doesn’t mesh with the laws, 101 etc. By the by, there is no statutory category called “carriers for methods”. But I don’t want to get into a whole big discussion about this today. Have your say if you want and that’ll be the end for now.

  106. After thinking about it for a bit I realized that what is probably the worst thing about software patents is that they restrict the people who actually invent the machine from using their machine however they see fit after they went through the trouble of inventing it.

    And that is precisely what the limitations on the use of functional language in patent claims are meant to prevent.

  107. “If I’m a small-time developer with a family to feed,”

    You might look into getting a real job, one that doesn’t involve simply using other people’s inventions.

  108. “I pay a PhD to work on a particular problem for a year. He creates a good new unobvious solution that is in demand. If you give away his solution that is like stealing from me; why don’t you just rob my bank account and give the money to the PhD and ask him to provide the solution to you directly? Stealing is wrong. ”

    Stealing is wrong. Something like stealing is not necessarily wrong. For example, borrowing is like stealing in so far as one person gains an object and another person loses the object. Borrowing is not wrong though. I believe you will agree with that. And let me be 100% honest. Nearly every program I’ve ever used that I did not buy I simply borrowed for a short period. After a few versions of windows the program won’t even work anymore. Or I get a new cell phone with all new programs and never use the old one again.

    In sum, borrowing software is not wrong, since nearly all software that is alledged by you to be “stolen” is actually only really being borrowed for all intents and purposes it is not wrong.

    How’s that line of logic work out for you?

    “Please. I’ll tell you what. You go buy a nice piece of beachfront property. I’ll appropriate it for the public. Your recompense? You get to be famous, and others will hire you to buy more beachfront property. ”

    How about this better analogy. I’ll go buy a piece of beach front property and you appropriate it for public USE. My recompense (in addition to having a nice piece of beachfront property that I can use at will) will be that I become famous and others will hire me to buy beachfront property.

    Deal accepted. At least it would be accepted if it weren’t for the fact that I’m already famous. For your avg joe though that’s a great deal. And I might still accept it because I’d become even more famous than I already am.

  109. “Can you provide some examples of the hundreds of patents you need to license to build an e-commerce website, whatever that is? Which ones are invalid?”

    Please note the word “need”, which you originally used. In other words, without using the patented technique, it is impossible to build an e-commerce website.

  110. “familiar with the real world of software deveopment…” I started programming TI calculators and TRS80s in juniorhigh around 1980, and have been developing software in countless languages and platforms ever since (except during law school). I know software, and my patent work has exposed me to realms of software that I never even knew existed. But what one knows about software (or patents) is irrelevant to the truth of what they say.

    Can you provide some examples of the hundreds of patents you need to license to build an e-commerce website, whatever that is? Which ones are invalid?

    “You might support questionable benefit to a select few software developers, and benefit to some patent lawyers, but the result is a very negative impact on the vast majority of software developers.”

    Convenient you avoid the other examples, which are just the tip of the iceberg, because you can’t point me to such things, because they don’t exist.

    I pay a PhD to work on a particular problem for a year. He creates a good new unobvious solution that is in demand. If you give away his solution that is like stealing from me; why don’t you just rob my bank account and give the money to the PhD and ask him to provide the solution to you directly? Stealing is wrong.

    All patents in all fields have a negative impact on some. Any right of one person can conflict with the desires of another (own any land? have an election sign in your yard?). The distribution of legal rights is a balancing act ultimately made by the public within the limits of the Constitution. Go convince Congress that the public will benefit from prohibition of software patents (and please provide a workable definition).

    “Example 1. The developer should publish the code as open source. They will become famous & extremely employable – probably getting a very well paid job somewhere like google, microsoft etc, or else more easily obtain venture capital for a startup.”

    Please. I’ll tell you what. You go buy a nice piece of beachfront property. I’ll appropriate it for the public. Your recompense? You get to be famous, and others will hire you to buy more beachfront property.

    Opensource folks, you’re not being intellectually honest.

  111. @Philip,
    In another 10 years, virtually all of the basic ways of doing business online will be publicly available regardless of whether there are patents on them and whether the patents are pure garbage. eBay, Amazon, etc. will all be more than 20 years old in 10 years.

  112. @SteveW – I agree that taking a well know process and merely putting on a computer makes it patentable. It is often obvious to incorporate many known processes onto a computer. However, developing a novel and innovative feature or function that has not been seen before the computer or since is different. Twitter’s core functionality, as mentioned above, is an example of functionality that should be patentable assuming novel and nonobviousness.

    Not clear why software technologies should be discriminated against in the patent world just because in the past some developers didn’t care or want to patent their innovations or focus on developing open source technologies. I understand the desire for a developer to work on open source platforms. Those community-like efforts have worked well. But not sure if works will for specific applications or websites. An individual should be allowed to come up with a novel idea for a new application and be able to patent that.

    The problems many have with “software patents” are:

    1. frivilous patents – yes, the patent office was ill equipped to examine at first and likely still is (should we privitize the examining process?). However, the standard of obviousness has been tightened and the PTO is better equipped. Since examining “software” patents may be more difficult, maybe require all to go through the peer process mentioned in the video. Subject each software patent application to the public scrutinity and, if granted, make reexamination easier.

    2. Transaction costs/licensing – the system is broken. A patent owner cannot notify a potential licensee of a patent without risking a DJ action. Why not encourage a framework where reasonable licensing transactions can be formed more easily and patents challenged without risk? The Copyright Clearance Center was created for copyright works, why not have a Software Patent Clearance Center with patentees can list patents at offered set rates and anyone can sign up to license.

    I think the patent system as a whole needs fixing. Not sure the problems justify discriminating against certain technologies. You might not want to patent your innovations, but others should be allowed to.

  113. Philip,

    I worked in the field of software development for many years prior to joining the patent profession.

    Your solution to Example 1 is correct, assuming we’re talking about a ground-breaking invention (as, I agree, my example was). However, we all know that most inventions would not cause the uproar you describe. If I’m a small-time developer with a family to feed, I don’t know that I’d hang my hat on the possibility of becoming famous.

    With respect to reverse engineering, I am now doubting your qualifications as both possibilities are equally plausible.

    As to Example 2, you raise Cisco – I don’t see how that’s different from my example. Has Cisco published their technologies so that others can improve and build on them? Also, I agree that trade-secrets can be very valuable – that is consistent with my example.

    As for the problems you describe, none of them are specific to software. The same problems affect other technologies. Therefore, you have not given any reason to support a conclusion that software should be arbitrarily singled out.

  114. The author of examples 1, and 2 is obviously not familiar with the real world of software development.

    Example 1. The developer should publish the code as open source. They will become famous & extremely employable – probably getting a very well paid job somewhere like google, microsoft etc, or else more easily obtain venture capital for a startup.

    Now why would it be trivial for the code in example 1 to be reverse engineered, but not the code in example 2? You can’t have it both ways you know. Either dissassemblers exist or they don’t.

    Example 2. Cisco didn’t do too badly did they? There weren’t any software patents to protect their algorithms and look what happened to their growth…

    The real problem however is that in trying to protect these two innovators we create a whole raft of counter problems.

    Example 1. In order to create a perfectly ordinary e-commerce site one must license hundreds of software & business patents. In another 10 years it will be thousands.

    Example 2. Someone obtains a software patent (and never writes software that performs the patented claims). Then independently, a wide selection of engineers write software that unknowingly infringes on the patent. Of course it is questionable how innovative the original patent was if so many people have independently developed it. None-the-less the owner of the software patent sues companies and individuals left right and center, wasting their time & money for something they had created themselves. The patent suits are unpredictable and vexatious.

    You might support questionable benefit to a select few software developers, and benefit to some patent lawyers, but the result is a very negative impact on the vast majority of software developers.

  115. @6:
    I can’t find too much to disagree with the way you’ve stated your last post. The USSC will not blanket out software patents, but they’ve been clear that just performing something in software that is not new otherwise doesn’t somehow make it new.

    Hypotheticals of what might be new are almost useless (e.g. the YouTube line of examples in this thread). That’s why we have standards, prosecution, and litigation. Just apply the standards to the specific case in question. I don’t know how someone can say in the abstract that a class of things is new or not new.

    The bottom line on software, for me, is that software is just a carrier for methods. Many methods that could not have been performed in the past are now performable because we have the potential for automation and fast response provided by software in a computer. It stands to reason that this new capability is going to generate a number of methods that were previously impossible and not even considered. It will also generate a number of old methods performed in an automated way, which is where 102/103 should be utilized and perhaps is not being utilized effectively. If the method has already been done, then it’s not new even with a computer. If it has not been done, then it’s silly to say the method can’t be patentable merely because it’s done by a computer.

  116. [NWPA: even w/ encryption (see Dotfuscator), UI innovations will always be easily copied]

    The anti-patent people have a myopic view of the software world. They’re interested in a certain type of software … software for the masses, if you will. But much software being developed is fairly specialized and corresponding patents are irrelevant to free development of software for general public use.

    Show me the opensource code for the equivalent of PhotoSynth.

    Where is the opensource code for testing wireless networks?

    Is there an opensource operating system that I can use to run Cisco routers with the same functionality?

    Can anyone provide a link for opensource code equivalent of Mathematica or Visual Studio?

    Show me the software code for controlling the systems in an aircraft or a nuclear power plant.

    Where is the free code for building a 3d gesture language?

    Got some opensource for fast generation of displacement maps on a 3d surface?

    Where’s the opensource equivalent to Google?

    Got a free program that can efficiently and accurately _deblend_ a background color out of all of the pixels an image?

    Have some source code, patent free, to model dissociation of hydrogen on a metal surface with chemical precision?

    Where’s the free program to predict new uses and unexpected side effects of existing drugs (see recent issue of Nature)?

    I think of the roughly several thousand software applications I’ve dealt with and very few would seem to interfere with anyone outside a special niche. Most are of no concern to the basement coder.

    Ease of participation in the software market is a two-way argument. It may be easy to develop new some new software, but it is also easy to imitate and distribute “counterfeits” and knock-offs that use and devalue ideas created by others.

  117. “My protest was simply against the guy that was spouting them off as instances of Youtube or app programmers changing a device into a new device via a programming “invention”. Ridiculous. The device did not change and moreover, as an aside, there was nothing even remotely new about what they did.”

    6, “the guy” was simply providing examples of how software can add new functionality to a processing device (101). “The guy” never claimed that the examples he gave were something new and non-obvious (102/103).

  118. “Here is your argument restated:

    What’s up Steve?

    Actually I didn’t make an argument, I simply asked if it would take a USSC judge drillin’ on their heads to settle the issue. And according to you it will take the patent law equivalent of such to make it happen since I assume you mean they need to write down my belief in an opinion (as opposed to simply telling counsel during oral arguments that they can’t argue that adding a program to a machine makes the machine a new machine PERIOD). So I guess that’s my answer. Which is fine, regardless of whether or not that decision happens to be Bilski or not, people with money to oppose software patents will grow new balls and get a good “vehicle” up to them.

    “I am unable to make sense of your protests about YouTube, Twitter, etc. You say that we shouldn’t allow that type of thing to be patented, because it has all been done before. You can rest easy, no matter what the USSC decides. Rather than banning a statutory category of subject matter, Congress, in their wisdom, has already set up a mechanism to prevent things that have been done before from receiving a patent. I think they even wrote a couple of laws about it.”

    My protest was simply against the guy that was spouting them off as instances of Youtube or app programmers changing a device into a new device via a programming “invention”. Ridiculous. The device did not change and moreover, as an aside, there was nothing even remotely new about what they did.

  119. Malcolm Mooney – your post highlights your wrong-headedness. YOU ARE STUCK ON 102/103. You can replace my examples with ANY INVENTION THAT MEETS 102/103.

  120. Upon reading example 3, I was surprised to see it was from MM. It reads like something in favor of software patents.

    The significance of examples 1 and 2 hardly goes away by creating a more extreme example 3. If anything, example 3 cements the idea that the inability to patent software could be quite harmful.

  121. If they get rid of software patents, a good place to make money would be building encrption programs that prevent decompiling your code. Wow, come to think of it the DMCA may come into play. These type of programs and protections used to be a big deal until patents.

    Plus, you see, those publications that you read about software and algorithms, well guess what? They will dry up. Without disclosure workers in companies will be prevented from sharing their research.

    Just look at how things were in 1984. I remember and I was a programmer.

  122. EXAMPLE 3: I just invented software that will diagnosis every form of cancer ten years before it strikes and also provides a guaranteed cure. It passes 102, 103 and 112 but alas is not statutory subject matter. There’s no point in trying to commercialize, because the established players can readily re-verse engineer and copy my algorithm. I could try to approach one of those players for a deal, but why should they pay up if their competitors will copy them as soon as they commercialize? Sure, first-to-market may have some value, but not significant given the ease of copying. I guess I shouldn’t have bothered in the first place… Millions of people will die unnecessarily now, all because the world’s most precious and important industry was denied its fundamental rights to patents.

    There. Can we end the dumbaxx fantasy scenarios now?

  123. >>”software that provides new innovative >>functionality”

    MM-trollbot: >>Can you give an example?

    Movie recommendation software.

  124. it seems to me that if patents are hindering innovation in software, than the standard of obviousness should simply be set higher.

    Instead of lower? Yes, that’s probably a good idea.

  125. I agree with edsterling’s comments.

    The malleability of software simply dictates an adequately discerning bar of obviousness.

    I liken it to patenting a useful article built out of lumber or any other building block type frameworks.

    You would need something really ground breaking in order to quality for patent protection:

    “A very ingenious system of timbering was introduced in 1854, or hereabouts, consisting of long stulls supported by wall and inside props 7 feet apart.”

    link to archive.org

  126. maybe someone can show us some studies and data in support of the counter-argument. wait … there isn’t any data in support of the rebuttal.

    the otherside is primarily lawyers protecting their livelihood and academics who live in theory.

  127. EXAMPLE 2: I’m an established tech company and have just come up with an algorithm that could be used to route Internet traffic 5x more efficiently than today’s standard. My algorithm passes the 35 USC 102/103 tests, but alas software is not statutory subject matter. It doesn’t matter though, because it is practically impossible to reverse engineer my algorithm. Heck, I’ll just keep it a trade-secret indefinitely, I’m positive it will be at least 20-years before anyone ever comes up with something this good. Sadly though, others will not be able to contribute to improving or building on my algorithm…

  128. Something else to note: If the economic incentives exist to “open” a patented technology, it will be open or at least the barriers will be reduced to increase industry participation.

    Greater participation usually means greater profits. And profits are what has always driven business and commerce.

    Sorry Mooney, its the reality of life.

  129. EXAMPLE 1: I’m just a small-time developer who’s come up with a software algorithm that compresses image files to sizes 1/10th that of conventional file sizes. My algorithm passes the 35 USC 102/103 tests, but alas software is not statutory subject matter. There’s no point in trying to commercialize, because the established players can readily re-verse engineer and copy my algorithm. I could try to approach one of those players for a deal, but why should they pay up if their competitors will copy them as soon as they commercialize? Sure, first-to-market may have some value, but not significant given the ease of copying. I guess I shouldn’t have bothered in the first place…

  130. I think that we need to put economists in a place where they belong. Most economic theories are completely devoid of political ideology. As a result, an economist might often see the benefit of a totalitarian form of government to advance economic growth. Therefore, if we are to look solely to economic theory for the propriety of any situation it should be borne in mind that one may actually be advancing the destruction of the current Republican form of government that we have in the United States.

    I take the example of the monetary system. That is probably the greatest monopoly in the World. Congress has completely abdicated its responsibility to control the monetary policies of the United States. As a result, anti-American forces are at work 24 hours a day and 7 days a week at extracting wealth from the United States and allocating the same in other regions of the globe to advance economic activity. However, we hear nothing from the economists on this monopoly. Why? The answer is very clear . . . they approve of taking your property and giving it to other peoples of other countries all for the sake of gain. Therefore, it is no surprise that they see as repugnant property rights in intellectual property, because it may impede gain. However, what should realize is that one man’s gain is another man’s loss. So what you really have the good ‘ol fashioned socialist ideology being advanced under the guise of economic theory for the elite trully believe “What’s mine is and and what’s yours is mine.” Taken to the logical end, running a country based solely upon the principle of economic gain, as the bankers and the economists advance, will lead to justification of what Stalin did in the Ukraine in the 1930s. Why don’t you search that. For that will be an eye-opener.

  131. it seems to me that if patents are hindering innovation in software, than the standard of obviousness should simply be set higher. There are some really important advances in software that have echoed in the industry for decades and those inventors should have the same opportunity to protect their ideas as any other genius. But apparently there is so much innovation occurring in such a short time span that the level of skill of an ordinary software programmer must be much higher than the examiners in the art think.
    In addition, it could be that the mechanical restraints on software innovation is so negligible inherently occurs faster. Programmers don’t have to wait for titrations or polymerization or some other physical process to occur to make their invention come to life. It comes out as fast as they can think of it and as fast as their CPUs can compute on the inputs. And that process gets faster every year.

  132. Read the book. Some good points. Major assumptions with dubious basis at times. A lot of self-citing which is always suspicious. Worth a read but certainly not something to place a lot of stock in. Struck me as written by someone without real experience in the business world.

    Comments by a 15 year corporate patent counsel.

  133. GS Rich: “So just as the right to bear arms exists outside the context of a well regulated militia,”

    Got some news for you if you live in VA. If you are between 16-55 years of age, YOU ARE IN THE MILITIA under state law (Virginia Code § 44-1). The state statute refers to our class as “the unorganized militia” (but we got spunk). Make sure to put this on your c.v.

  134. Also, don’t forget to ask about Red Hat’s formidable portfolio – no wonder they want everyone to abandon so-called “software patents”

  135. Don’t waste your time with Mooney, he is not impressed by anything (except himself).

    He is the modern day Duell

    curmudgeon

  136. Nathanael:
    You still haven’t distinguished software from other stuff. Sure, maybe nothing should be patentable – that’s not a refutation of my argument. Every argument presented in this thread against software applies equally well to everything else under the sun.

    I take issue specifically to saying that no one considers patenting while making software but they do while making other stuff. Where is there any evidence that either 1) they don’t consider patents when making software or 2) people in other industries do consider patents when making stuff.

    That argument is just made up, i.e. hand waving. Considering that some of the highest patent-count companies in the USA are software companies, the readily available evidence is that the argument is also wrong.

  137. “I’ll give you one for free. A good reason would be “To promote the Progress of Science and the Useful Arts”. If a patent doesn’t do that, arguably it’s unconstitutional…”

    I used to have faith in that clause because I always read it as limiting the scope of Congressional power to grant patents. But last year’s 2nd amendment case demonstrated that these Supremes are willing to read an opening clause as merely exemplary, rather than as limiting. So just as the right to bear arms exists outside the context of a well regulated militia, Congress may indeed have the power to grant patents which don’t promote technological process.

    Granted, it’s certainly reasonable to interpret the Bill of Rights more broadly than other parts of the Constitution and to thereby ensure that an opening clause is not a precondition to the right itself, but it seems the same reasoning could be applied to the ‘promotion’ clause. If that’s the case, Congress would be permitted to enact patent laws with bars so low as to allow innovation-impeding patents.

  138. Nathanal,

    “For example, you have presented no argument for why *anything* should be patentable”

    Um, maybe because it is written into our constitution? Wow – get a clue before you post ok?

  139. Joe: I mean, its not like anyone here makes any bones about the fact that getting patents, however worthless, for your client is a good thing and any defense against infringement is a bad thing. So what if you didn’t do a 30 second Google search to find out that 800 people thought of the idea first (but didn’t patent it)?

    ————

    Isn’t this a PTO search problem (see, 35 USC 102, 103 regarding the 800 people)?

    Worthless? Wouldn’t that make it easy to design around or knock out via reexam?

    What really are your concerns?

  140. “Instructions for a computer are still instructions and therefore unpatentable as instructions.

    Try claiming software structurally. Sure, you’ll be limited to a narrow structure, just like chemists are limited to narrowly defined structures because they can’t claim compounds by their functions. Don’t like it? Try copyright.

    Posted by: Malcolm Mooney | Nov 11, 2009 at 01:47 AM”

    Malcolm, Malcolm, Malcolm,

    Running up that (sam) hill of the Printed Matter Doctrine yet again are we?

  141. Joe: But hey, the important thing is that you can use the patent to sue someone who is successful in actually using the idea, …

    ———

    Whose idea was that again?

  142. First it looks like all the patent professionals get up really early.

    Second, isn’t there something ironic about a book using economic analysis that purports to say that patents are a drag on the economy when the flip side of the argument is that the pejorative troll (I prefer NPE) are the purist determinant of market value since they don’t have any interest in protecting their product line, their revenue stream and supposedly create market value simply on the intrinsic value of the asset?

    The problem is a lack of information transparency so that examiners and the public at large can make a judgement on which inventions have value and which don’t.

  143. Although sw patents may not motivate invention, they motivate venture capitalists to invest in a company to distribute one’s invention.

    If a VC asks “why should I invest in your company when everyone can freely copy your product?” you need to give them a good answer.

  144. “Don’t like it? Try copyright.”

    Be careful what you wish for. If you think patents are a pain to design around see Computer Associates v. Altai. At least a patent has claims so you have some chance to figure out what exactly is being protected.

  145. “Just like a lawn mower changes into a fan when you turn it upside down. Neat!”

    You didn’t have to add anything to the lawn mower to turn it into a fan, so it’s not structurally different. However, a method claim drawn to blowing out a candle with a lawnmower may be patentable.

  146. > I’ll bet none of the “actors” invented a thing in their entire lives.

    If by “invented” you mean tried to patent the idea of using some random thing invented by someone else as a floor mat, then probably not.

    (And if you don’t get that, reread the story about drafting preambles.)

    Seriously, anyone could come up with the crap that passes for “innovation” these days. Most people just aren’t crazy about the idea of patenting all those absurd things and suing people.

    Anyhow, I’ve solved plenty of technical problems in new ways. I haven’t done prior art searches, or tried to patent anything, though. But apparently you can call something novel if you hook up N knowledge bases to it (where N is a number no one else has used yet), so I bet I could patent *something* if I tried.

    Sometimes, after listening to you guys, I think they’ll let anyone patent something so long as you attach something novel but probably useless to it that no one else has/limit your claims in some crazy way, pay enough in fees, and wear the examiners down with arguments.

    I mean, its not like anyone here makes any bones about the fact that getting patents, however worthless, for your client is a good thing and any defense against infringement is a bad thing. So what if you didn’t do a 30 second Google search to find out that 800 people thought of the idea first (but didn’t patent it)? They should have explained their ideas in legalese…

    I mean, seriously. I make software for a living, but I can’t for the life of me understand most software patents. The “best mode” as far as the people skilled in the art are concerned is called source code and the patents instead mostly give us worthless block diagrams that explain nothing. Data doesn’t flow along magic arrows. You send it in arguments to function calls, shared memory, files, etc. and proper implementation requires details that are obscured or omitted in the patents.

    But hey, the important thing is that you can use the patent to sue someone who is successful in actually using the idea, even if they’ve never heard of you and have never seen your patent. Most people aren’t crazy enough to read the patents (which makes them almost completely worthless in terms of disclosing the so-called inventions).

  147. Unlike many of you, I do not believe innovation would be thrown out the window if patents were abolished, but oerall, I support the patent system.

    I am just posting because Meurer was my patents professor and I even did research for him at law school. At the time, I did not appreciate his feelings toward patents. I thought he was a pretty good professor, although I know at least one other person who disagreed with me. My only problem was he was stingy with the top grades.

  148. SteveW,

    Your argument is a series of hand-waving conclusions.

    For example, you have presented no argument for why *anything* should be patentable. Given that, it is not our job to make distinctions between various classes of things. Once you give a coherent reason why something should be patentable, we can explain why a certain class of things does *not* satisfy that reason.

    I’ll give you one for free. A good reason would be “To promote the Progress of Science and the Useful Arts”. If a patent doesn’t do that, arguably it’s unconstitutional. No software patent has ever done that (and we have the data to prove it), because nobody has ever been motivated to create or publish a piece of software (rather than keeping it secret or not bothering) solely by the lure of patent protection. Zero documented cases in the history of software.

    As an extreme example, most software patents fail to fully disclose (no source code == no blueprints / no working model), so in those cases they certainly didn’t motivate people to not keep the software secret….they kept it secret despite obtaining a patent!

  149. Could this video be more accurate?

    I’m not surprised that patent lawyers want as many patents as possible (more $$$ for them), but it’s Patently Obvious to anyone who knows any economics that granting private monopolies is usually bad for the economy and bad for the public good and bad for science and innovation.

    Patents have a *burden of proof*, economically, to show that they *aren’t* a giant drag on society, or at least that the giant drag is worth it.

    Serious studies show that patents are a drag on American business *and* GDP. When the patent law was much much stricter, before process patents were allowed, American business flourished more… but businesses in countries which ignored the patents did even better; see the film patents and the airplane patents, both of which killed the American industries for a couple of decades.

    Software patents are an especially egregious case of patenting stuff which was never before considered patentable, and in a field where the normal entry barriers are very low (so creating private monopolies hurts much worse than in fields where it’s very expensive to get in anyway).

    But in fact many, many patents turn out to have been bad for the country, historically. Quick expirations, aggressive throwing-out of claims, and the occasional intervention of the Federal Government to eliminate particularly nasty patents are the only thing which kept the system tolerable.

    History’s funny that way.

  150. “why can microsoft patent old old old inventions that they didnt even invent??”

    it sounds like those patents should have been rejected on Section 102/103 grounds.

  151. “patents (particularly software patents) are a net drag on innovation”

    I wonder whether they are a “net drag” on American business and on our GDP?

  152. To Steve W

    If your statements were true then why can microsoft patent old old old inventions that they didnt even invent?? Your logic is faulty. Software Patents need to be thrown in the dustbin of history….

    V

  153. @6:
    You speak as though the USSC is on your side, “W T F? The monitor is a monitor is a monitor. A computer is a computer is a computer. Does a USSC justice have to take a gd drill to your head, make a hole, then drop a note with this information inside before you’ll get it through your skull?”

    Here is your argument restated:
    1. [USSC has stated that X is not the law]
    (You skipped this statement, I supplied it for you)
    2. All you silly pro-software guys refuse to believe X
    3. How can I get you to believe X? Will the USSC have to pound X into your heads?

    No, they don’t have to do the drill-business. They just have to state your view of the law, which they have not.

    I am unable to make sense of your protests about YouTube, Twitter, etc. You say that we shouldn’t allow that type of thing to be patented, because it has all been done before. You can rest easy, no matter what the USSC decides. Rather than banning a statutory category of subject matter, Congress, in their wisdom, has already set up a mechanism to prevent things that have been done before from receiving a patent. I think they even wrote a couple of laws about it.

  154. In summary, if I develop and launch a novel iphone application, why shouldn’t I be able to protect it? Chemists can protect their innovations? Mechanics theirs? Why not a software developer?

    Instructions for a computer are still instructions and therefore unpatentable as instructions.

    Try claiming software structurally. Sure, you’ll be limited to a narrow structure, just like chemists are limited to narrowly defined structures because they can’t claim compounds by their functions. Don’t like it? Try copyright.

  155. Willton,
    Your argument is a series of hand-waving conclusions. For example, why do you state the incentive for software to improve is driven by the market, but the incentive for hardware is not? You have articulated no difference between the two – better hammers and better software both have an improved market position.

    “Patents are largely irrelevant to the day-to-day process of product development in the software industy.” What is your evidence for this, and further what is your evidence that patents are relevant to the day-to-day process of product development in the hardware industry?

    You have presented nothing that distinguishes software from hardware, except your mere assertion. Here’s one for you – if you hand me an improved hammer I can see the improvement immediately, but if you hand me a device with improved software, I may never know about the improvement except indirectly (“it runs faster”). This is a situation where the “burden on society” weighs against hardware patents. Society can take the knowledge of the improved hammer sans patent, but without a patent it will be very difficult to see what’s under the hood of the software device.

  156. In summary, if I develop and launch a novel iphone application, why shouldn’t I be able to protect it? Chemists can protect their innovations? Mechanics theirs? Why not a software developer?

    Because, largely, the patent is not necessary to encourage you to create such a novel iPhone application, and it creates an economic roadblock that is nearly impossible for an innovator to avoid. The incentive for software engineers and developers to improve their products are created by the market, not intellectual property law. Patents are largely irrelevant to the day-to-day process of product development in the software industry. So what we are left with is a burden on society created by the software patent largely overwhelms whatever benefit the disclosure provides.

  157. “Why not a software developer? ”

    Maybe because innovation doesn’t strictly equal invention depending on who is defining the terms. And in patent law, we define what is patentable as inventions. Maybe you should review the recent Biski oral arguments eh?

  158. “Same with Youtube. It turned my computer into a “tv” or mini movie theater. ”

    You genuinely believe that Youtube was the first to do this?

    Or twitter to allow you to “follow” people?

    You apparently don’t stray far from the beaten path on your interwebz. The rest of us had “subscribe to this user’s messages” features a long time before twitter and we could upload and view movies a long time before Youtube made it FREE and got popular.

    That’s not to say that I don’t appreciate Youtube, it’s a great thing to have that for free on a popular platform where everyone knows about it so that if you mention it in casual conversation then they don’t look at you with a blank stare.

    You’re nothing but a standard intertard yuppy to these here interwebz of mine.

  159. “Hey guys, patentlyO completely changed my computer into a new machine! Now it’s a flashlight! All this bright arse white screen really lights up the room!

    Oh and hey guys! Google maps completely changed my computer into a new machine! It’s a map of the world/spy on people from outerspace device!”

    W T F? The monitor is a monitor is a monitor. A computer is a computer is a computer. Does a USSC justice have to take a gd drill to your head, make a hole, then drop a note with this information inside before you’ll get it through your skull?

    (seriously this monitor is kind of strange with its color settings and PO is kind of hard on the eyes due to the white, but if I change the color settings then if I do something on a dark screen you can’t hardly see it).

  160. I don’t understand.

    Why does that guy with the eye glasses hoard the glasses all to himself? Why does he not share them with the open sight community?

    Surely there must be some people out there who need to share his eye glasses on a no-cost-to-them basis. Eye glasses want to be free. Why does he not take them off and share?

    Fair is fair. Share everyone’s software, share everyone’s eye glasses.

  161. Without a patent to protect my innovation, anyone can steal it

    False. See, e.g., Digital Millenium Copyright Act.

  162. If you do not believe software creates a new “machine”, you obviously haven’t seen many of the iPhone applications. They change the device, utterly, from flashlight, to compass, to level, etc.

    Just like a lawn mower changes into a fan when you turn it upside down. Neat!

  163. @Malcolm Mooney –

    As I tried to explain, Twitter is more than simply “sending a message to someone” (email does that, as does snail mail). The twitter platform provides much more than that (follow, be followed, DM, reply, streams, etc.). If they were first, why shouldn’t they be able to protect that innovation?

    Your characterizing it as merely “sending a message” places you squarely in the category of folks who don’t understand that the claims define the scope of protection, not the title. Twitter is much more specific than that. Every word in a claim’s body limits the scope. Creating a patent claim that includes the basis twitter functionality would NOT cover a simple message.

    Same with Youtube. It turned my computer into a “tv” or mini movie theater. More importantly, it allowed anyone to easily upload video content. It turn my laptop into a production set and a tv set. Very cool and innovative.

    Regarding you posted note on a Raspberry,if new and novel, No question that’s patentable. Just ask 3M. It’s a thing, rather than a process. We are talking about software processes (intangibles in some sense) not widgets. Bad example.

    As also posted in Quinn’s blog is a quote from John White who explains nicely:

    “If you do not believe software creates a new “machine”, you obviously haven’t seen many of the iPhone applications. They change the device, utterly, from flashlight, to compass, to level, etc. None of these machines bear relation to one another, yet they are the same from a “hardware” standpoint. To say none of it is patentable because, in the end, a new machine is not created demonstrates a profound lack of appreciation for what software can accomplish. In my own experience, I have observed software on gear cutting machines extend the utility of the device 20 years. No other changes being made.

    John White”

    In summary, if I develop and launch a novel iphone application, why shouldn’t I be able to protect it? Chemists can protect their innovations? Mechanics theirs? Why not a software developer?

    Let me know, your Google or connected to VCs who will though money at you or are rich so can big, market and commercialize on your own. Without a patent to protect my innovation, anyone can steal it and bury me. How is that fair?

  164. Sure, Twitter.

    What’s new about sending a message?

    YouTube

    What’s new about showing a movie to someone?

    Imagine I’m the first person on my block to buy a Rasberry, which is basically a handheld computer brain. I notice that the back of it is the perfect size for a post-it note. So I glue a pad of post-it notes to the back. Now I can write notes on the back of my Rasberry! It’s a new functionality! Let’s all get excited. Or better yet, let me pump $10 million into advertising this new function and then let’s all get excited.

    Twitter is a silly fad created by “clever” marketing. The reason people like YouTube is because of the content which exists only because there are legions of people who understand that just because you created something or own something doesn’t mean that other people shouldn’t be able to enjoy it for free.

    By the way, I read earlier today that Gene Quinn says “it’s impossible to define what a business method is.” That’s amusing.

  165. @Malcolm Mooney.

    Sure, Twitter. Specifically, their message functionality, with follow/be followed, etc. Twitter provides my old computer with new innovative functionality, as did YouTube, Hulu, Pandora, Skype and others.

    The first online dating service turned your computer into a matchmaker.

    There are other examples.

    Why buy an Apple over a PC (or vice versa)? Is it the machine, the support, the software or a combination?

    Recently, a court suggested that photographer’s works are subject to copyright and caused some outrage. Why are software innovators outraged when their innovations are descriminated against?

    Keep in mind the standard of obviousness has recently been modified enormously. That should cut back on “frivilous” improvement patents. Why not allow the true innovations to pass through and be patented as well?

    I don’t understand the reasoning.

  166. I recommend renting “The Corporation” if you really want to see a one-sided attack on patents. The Corporation is a documentary with the thesis that if a corporation was a person and had the behaviors attributed to him by the law, that person would be a psychopath. About halfway through, it dramatically changes focus (seemingly out of left field) from a general anti-business screed into an attack on biotech patents, in particular the Chakrabarty decision.

  167. Rob Tiller – “successful innovators get stopped”/”patents attack innovation”. You are confusing innovation with commercialization. The latter is no doubt critical, but the original idea should acknowledged as well.

    Re Trolls – Fix the MedImmunue case. ANY INDIVIDUAL OR SMALL COMPANY (not just failed ones) has a strong motivation to sell to an NPE (aka troll) with a grantback since too risky to try to license. Focus on creating a framework where parties can freely discuss licensing without the risk of a DJ action or willful infringement finding. Currently, its sue first. That’s the problem.

    Re 20 years/product cycles, what type of software patents are we talking about? Amazon’s technology (the one click patent (if still valid) and other technology) could be used for a long time. I might have a novel iphone application that I think will be used for years.

    Are software patents relating to software tools the greatest concern (e.g., database design, specific code, software techniques, etc.)?

    Or, would you also complain about a patent covering a novel iphone application that is specific to the novel functionality that the application provides? How would that patent interfere with your innovation unless your creating a copycat app? You might have better developers or more resources, but does that make you a better innovator?

    Maybe the test should be does the software invention enable to the computer device to perform a new and useful functionality – if yes, patentable

    vs a software invention that merely allows the device to run faster, with less energy, cooler, with less storage, with simpler code, etc.- not patentable.

    In the end, the critical tools/building blocks needed to build innovative software maybe shouldn’t be protectable, while software that provides new innovative functionality should be.

  168. The horror! People buying patents from failed companies and then asserting some of the bundle of rights that comes with such ownership.

    In order to hinder innovation? Yeah, I’d say that’s a problem.

  169. I’d be willing to bet they invented something the day of making then commercial JAOI. Specifically, a method of opposing software patents comprising: putting that commercial on an internet medium.

    Definitely not the same medium with that commercial on it.

    Dennis, I am getting the feeling that you oppose software patents.

    And there’s your tangible transformation.

  170. I’d be willing to bet they invented something the day of making then commercial JAOI. Specifically, a method of opposing software patents comprising: putting that commercial on an internet medium.

    Btw JAOI, thanks for your bio over on the other page. That explains a few things about you. I do have to wonder why you’d slum it on this blog instead of taking a couple of gold digger girls to Aspen. I sure know which option I’d choose on a given evening.

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