26 thoughts on “Pre-Bilski Survey: Software Patents

  1. O’Riordan,

    Your example of MeSoft and MicroSoft relies on the assumption that the MeSoft format is not superior to the MicroSoft format. If the MeSoft format is superior than the MicroSoft format, then MeSoft may be able to use that superior technology to break into the market. Unless of course they don’t have patent protection. Without patent protection, MicroSoft will simply copy the superior technology and maintain their market dominance.

    Furthermore, if no one, including Microsoft, had patents, Microsoft would still maintain market dominance. Their market dominance is based on many factors and is not maintained solely by having “software” patents.

  2. O’Riordan,

    You need a good friend with the guts to tell you to just STFU. You’re not making any sense.

  3. Ciaran,

    It is apparent you don’t understand a lot about physical technology to make the distinctions you are making.

    You are also confusing market dominance with technology. MS Word’s market dominance has nothing to do with the fact that it is software.

  4. @Hutz: nope. In other industries, interoperability isn’t as essential, and standards are usually made by entities who’s aim is to facilitate cooperation among the main players.

    There’s no wheel format, break format, window format, or seat format that’s owned by one company and without which you can’t make a functional car that meets modern needs.

    For software, with the MS word file format, if you can’t read and write it, your software is not a functional word processor. In software, single companies set standards.

  5. @Dan: Trolls are a substantial problem, but they’re not the majority of the problem.

    Companies with dominant market positions cause a lot of the problems. One big problem is when a file format or data format is patented. If the dominant player can have a patent on reading/writing that format, then they can pick and choose who can write a functional product, and they can set the terms to maximally profit.

    For example, if Microsoft and Mesoft both patent their word processor formats, then Mesoft’s patent is worthless because nobody cares about reading/writing their format, and Microsoft’s patent is an air-tight monopoly because reading/writing their format is simply essential for a functional, modern word processor.

  6. Ciaran,

    101 was never intended to be a subject matter barrier. Novel storylines are out because stories are creations, but not inventions. However, software programs accomplish tasks. Therefore, software programs are inventions.

  7. @Hutz: My suggestion is no different from the current system. The current mix of legislation and case law decides what fields are in and out. Car manufacturing is in, and innovative, technical storylines in a novel are out.

    I suggest moving software clearly to the “out” category.

  8. Ciaran,

    You realize what you are validating Dan’s interpretation of your statement. You believe protecting small companies includes removing “patent barriers” if I may characterize your argument so.

    Ultimately, who is going to decide which technology areas are the province of “large” companies and which are the province of “small” companies.

  9. Ciaran, you’re all over the map with your arguments… It seems that now, your complaint is about patent trolls – why not simply require the patent owner to also make and use the invention in order to have standing?

    This is all moot in about 5 minutes, anyway. 😉

  10. @Dan: Hi. I think you’re a bit out of focus there.

    I think little players certainly do deserve legal protection. For example, software patents should be abolished. Software patents are an attack on little players. The handful of patents they can hope to own will do nothing to protect them from a troll and will usually do nothing to protect them from someone with a big portfolio.

    I’d rather protect them from that legal risk, and rather than forcing them to waste tens of thousands on their own little portfolio, I’d let them keep that money for staff or R&D.

  11. Ciaran, isn’t the implication of your last post that patent protection should be limited to fields with “large companies”? And that industries with little players don’t deserve legal protection, but should instead be some sort of wild west frontierland?

  12. @Hutz: I don’t suggest abolishing all patents.

    Patents on the manufacturing of cars are completely different because the relevant practitioners are large companies who can be assumed to have a legal team and a cash reserve. Further, because cars are expensive to build, we can assume they will be developed and distributed for direct financial gain. Adding a patent royalty just modifies the numbers.

    For software, adding a patent royalty makes certain popular development and distribution models impossible, and the lack of inherent development costs causes many entities without lawyers and a war chest to be practitioners in this field.

    The way that patents affect a field such as car manufacturing is not at all similar to how they affect a field like software or how they would affect fields such as literature or music. The most basic of analysis shows that these fields shouldn’t be lumped together.

    The only similarity is that they make lawyers rich, but that similarity shouldn’t be what drives policy.

  13. Ciaran,

    You’re arguments would a hold a lot more water if they did not apply to all patents. Unless you are advocating for the total abolishment of the patent system, which is legitimate.

  14. I’m a campaigner against software patents.

    I guess that means 100% of my work is for the protection of software.

    Any other interpretation of the word “protection” would be absurd. Patents don’t “protect” software, they impede others from developing software. Every software patent is bureaucracy, cost, and legal risk for software developers. They’re a pest which should be eradicated, preferably in three hours time.

  15. Yikes, I find myself agreeing with RWA, since “software” is almost a universal applicator and those patents covering a process can cover that process when invoked on a computer (and thus using software) – the distinction “tried for” by DC is ethereal.

  16. Now I get why the Plaintiff in the Case Mr. Clark speaks of, only got the first page from the Complaint. And then when Amended, the first page again. So the Law the board is claiming to be ruling on was a figment of stargazers coercion. Thanks for the help NAL. Even if it was a flip flop belly flop. And very very ugly indeed.

  17. RWA I’ll try this again.
    If someone coerced the plaintiff into claiming there was a Patent or Trademark related to the on going Case when there wasn’t? Well the only Law that should apply, is not closing the Case because it was a wrong assumption. But the Law that is just a new Chapter in the ongoing….But closing the Case because there was a … how do I put this hmmmmm? Oh I know. If the Plaintiff was led to believe there was something. And the blogger knew there really was a something, thereby relating the ” something you could touch and feel that truly existed,but was obviously a non something” to a coercive knee jerk reaction by the plaintiff.. ( She called it Stare Decisis. But I wouldn’t call it that, would you RWA?) Then that should be just the beginning of how to apply “that” LAW. And I believe… uh oh skip the song… And I believe that the Blogger and I are about to meet and do battle. Because that is just another chapter in the whole debacle.

  18. It’s next to impossible to give an answer because there is no bright line as to where hardware ends and software begins.

    When it comes to digital electronics, pretty much all circuits have a “memory” means in the form of at least a register or two. And it is not uncommon for behavior of the circuit to change in response to “control” bits stored in those registers.

    So the question arises as to whether those register bits constitute “software instructions” that instruct the machine on how to behave? Does that make a patent on such a device a “software” patent?

    I don’t really want an answer. The above is a rhetorical question that seeks to point out the ridiculousness of the debate.

    Let’s talk about more important things like which end of breakfast’s poached egg should be cracked open, the big end or the little end?

  19. Considering that most inventive methods can be practiced on a machine through operation of software, the answer is darned near 100%.

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