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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: jesse on Saturday, November 24 2012 @ 07:09 AM EST

[ Reply to This | # ]

News Pick discussions
Authored by: jesse on Saturday, November 24 2012 @ 07:10 AM EST
Thank you.

[ Reply to This | # ]

Off topic discussions
Authored by: jesse on Saturday, November 24 2012 @ 07:10 AM EST
Thank you

[ Reply to This | # ]

COMES thread
Authored by: jesse on Saturday, November 24 2012 @ 07:12 AM EST
Thank you.

[ Reply to This | # ]

What a fine piece of work!
Authored by: Gringo_ on Saturday, November 24 2012 @ 08:14 AM EST

A wonderful contribution, with a powerful conclusion. So well edited and paced, it reads like a suspense novel you can't put down until you reach the end. It represents a valuable contribution to the search for a solution in itself.

The conclusion seems to directly address the "second group", who do perceive there are problems but came up with a "kludge" for the solution, to turn their own word against them. It explains the view of the "first group", who's views in the extreme are represented Stallman, to second group in such a visceral and compelling way that they cannot help but be moved.

[ Reply to This | # ]

Intellectual property
Authored by: TerryC on Saturday, November 24 2012 @ 08:48 AM EST
It has never struck me before, but while reading the discussion about
'Intellectual property', I kept imagining that the meaning was 'Ineffectual

I think that as far as patents are concerned, the only effect is a chilling one.

Just think; if Microsoft added 'You hereby grant us a license to print money' to
their EULA, it wouldn't change its meaning a bit.


[ Reply to This | # ]

tl;dr (Actually, I did read a fair chunk ...)
Authored by: Wol on Saturday, November 24 2012 @ 09:59 AM EST
But what about the requirement to have *actually* *invented* something? Surely
requiring a plaintiff to provide the original invention (or proof that it's been
accidentally destroyed) would get rid of an awful lot of troll patents?


[ Reply to This | # ]

There is only one rational solution
Authored by: Anonymous on Saturday, November 24 2012 @ 10:50 AM EST
No patents. There is NO field of technical endeavour that is improved by
patents. The telephone was a worthless toy until Bell's patents ran out.
Penicillin was never patented. The Internet is filled with security holes
because encryption was patented when it was first being deployed. We complain
about how medical costs are destroying our economy, yet we use patents in a
deliberate attempt to increase medical costs.

It is insanity.

Fire was never patented, yet it was invented. The wheel and axle were never
patented, yet they were invented. Inventors will invent, the only thing that
can stop them is patent-holding thugs. The only thing patents accomplish is to
enrich lawyers and empower lazy, rent-seeking thugs. Patents slow innovation
and prevent invention for the benefit of those thugs.

Patents must end. All of them. Software, business methods, mechanical devices,
drugs, chemicals. No patents. Ever. The world ran just fine before patents
were created. It will run fine after they are abolished.

The greedy corporate thugs that claim they will shut their companies and wreck
the economy unless we continue to support their criminal enterprises with
patents are liars. It is an empty threat. Put them in jail and free the rest
of us.

No patents.

[ Reply to This | # ]

Possible solutions to patents
Authored by: feldegast on Saturday, November 24 2012 @ 11:39 AM EST
Ban the sale of patents - only inventors can license them -
no sub licensing
Require blueprints or detailed plans / instructions of the
invention in paper (which is then digitised) or digital form
Clearly show where each of the patented claims (dependant
and independent) relate to the blueprints / plans /
Educate patent examiners in mathematics so that they are
aware that software is math and therefore not patentable

Alternatively, move all software development and use outside
the USA as it is too expensive to remain there except for
software 20 years or older.

My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Take the lawyers out of the equation
Authored by: Anonymous on Saturday, November 24 2012 @ 11:55 AM EST
The conclusion seems to be pretty much what many people know already. Take the
lawyers out of the equation. They never invented anything anyway, so no big loss

[ Reply to This | # ]

There is much more to software than just algorithms
Authored by: jbb on Saturday, November 24 2012 @ 12:48 PM EST
Software patents cover algorithms, nothing more. But there is a lot more to software than just algorithms. Likewise, there is a lot more to physics than just math.

Our job is to remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay

[ Reply to This | # ]

Can both sides be satisfied?
Authored by: Anonymous on Saturday, November 24 2012 @ 01:08 PM EST
It is evident that there are two strongly opposing camps. Could the two camps be
allowed to separate and operate independently?

I envisage a situation where a company can register, perhaps with a patent
office, that it will never seek to register or assert any software patent.
Having registered, no claims of infringement of software patents can be brought
against it.

This would then divide the world into two mutually exclusive groups:
i) Those who want to hold software patents and want to be able to enforce them,
but they also run the risk of action being brought against them;
ii) Those who do not register, or seek to enforce, software patents and as a
consequence are exempt from any action being brought against them for
infringement of software patents.

[ Reply to This | # ]

Authored by: Anonymous on Saturday, November 24 2012 @ 02:37 PM EST
Excellent report, thanks Tkilgore. About halfway thru I was going to just
skim the rest and come back later. Instead I did a search for the string
"copyright". It appears only once in the body of your report,
when Stallman points out that patents are different from copyright.
I'm a little dismayed that neither he, nor any of the other speakers
observed that software is already protected by copyright. The legislation
appears as strong as patent law. Is there a problem with its prosecution?
Is the monetary penalty for copyright transgression insufficient?

[ Reply to This | # ]

A third way.
Authored by: soronlin on Saturday, November 24 2012 @ 04:04 PM EST
If I had my way, software patents would be out of the door and burned. All of

However there may be a way to preserve software patents within the existing
congressional structure, if not the existing precedent structure.

I said in a while ago that it is interesting to consider the bounce-back patent
as if it was a patent for a mechanical device. Say I have a real physical
desktop, and a real physical strip of photographs that I can slide along that
desktop, and I want to make that strip "bounce-back" when I reach the

There are any number of mechanisms I could use for that, such as springs, rubber
bands, weights and pulleys, magnets, and within each general technique there
would be any number of different arrangements of mechanical components.

So seen as a mechanical device, the bounce-back patent is not patentable; it is
clearly addressing an idea, not a mechanism.

So software patents should be approached as if they were mechanical patents. If
they would survive as a patent on a mechanism, then they may survive as a
software patent.

Consider slide-to-unlock, which is simple since it has a real-world mechanical
analogue: the lock on a toilet cubicle door. Would the patent survive if it
described such a lock? Clearly not; it does not describe any of the lock
mechanism, only the interface to it and the external effect operating that
interface has.

Some patents would escape such a test. GIF, FAT and encryption spring to mind.
Those patents do have a damaging effect on the industry, so this filter is not
all we want. However by allowing patents such as those, we may find the path to
acceptance considerably smoothed, as those are the very patents that are argued
for by a large sector of the industry.

And by demanding that details of the mechanism be included in all patents, we
give ourselves room to work around them, and we open them to claims that they
only describe algorithms.

[ Reply to This | # ]

I wonder if RMS knows that the audio of his keynote was actually streamed?
Authored by: Anonymous on Saturday, November 24 2012 @ 04:22 PM EST
I suspect he'd be a little upset to know that I was able to listen to the stream
of his keynote while the video was blacked out. Then again, that may have been
his agreement with the organizers. I have no idea, and I hope someone told him
as he should probably be made aware if he is not.

[ Reply to This | # ]

Chinese Patents
Authored by: Anonymous on Saturday, November 24 2012 @ 05:34 PM EST

There is also the motivation of serving the country by obliging other countries to license "intellectual property" from the US as our exports of material goods seems to decrease over time and manufacturing of goods has moved to a great extent overseas.

They do not see the shortsightedness of this policy. Foreign companies, too, can obtain US patents, as one of the panelists mentioned. Moreover, foreign companies can also buy US companies along with their patent portfolios. In fact, both of these things are happening.

The Chinese have learned how the patent game is played, and they are filing mountains of patents. According to WIPO's (World Intellectual Propery Organization) most recent data (2010), China is filing 80% as many patents as the US, and they are increasing them at more than 3 times the rate of the US. In the same report, for patents filed under the Patent Cooperation Treaty (PTC) system, 2 of the top 3 companies filing patents are Chinese (ZTE and Huawei). Only 1 company in the top 10 is American.

There is a type of patent called a "Utility Model", which is a short term patent granted with little examination. It's not used in the US, but it is in many countries that American companies would want to sell things to. China accounts for 82.6% of all UM patents.

For "Industrial Designs" (e.g. Apple's infamous "rectangle with rounded-corner patent"), China accounts for 63% of the world total, and their total is growing at nearly twice the rate of the US. The US accounts for just 4.3% of the world total.

In other words, in terms of volume China is winning the patent war. The US has a large number of existing patents granted in the past, but in terms of new patents, the Chinese already either predominate or will soon take the lead.

A patent proponent will no doubt argue that American patents are "better" than Chinese patents, and therefore more valuable. However, as we've seen in the smart phone wars, it's quantity that matters, not quality. The patent system is simply Soviet economics writ large, where filing the correct paperwork counts for everything and satisfying customers means nothing.

The US has been the leading country in pushing for stronger patent laws, under the impression that the US would own all the patents and the rest of the world would pay "rent" to the US. It's easy to see that nothing could be further from the truth. In reality, the Chinese are the ones who will own all the patents, and before long Americans will be able to do nothing without paying someone in China for the privilege.

[ Reply to This | # ]

Patents vs Congressional Action
Authored by: Anonymous on Saturday, November 24 2012 @ 05:41 PM EST
Many people expect that the patent problem will ultimately be "solved" by Congress, but my opinion is that in the current economic situation that solution will never happen. Congress unfortunately has a very direct disincentive to solve the problem, so things will have to get pretty darned bad before they ever think to act.

Why? Because Congress actually GETS money from the USPTO for every stupid patent that is granted! Think about it. Isn't that the very definition of "kickbacks"? Congress gets money to fund their pork programs (or other) from the USPTO budget overages, so why in the world would Congress ever want to cut off a funding source?

We need to address this underlying issue before any "real" solution can even be proposed in earnest. Trying to get any positive legislation through Congress before these reverse incentives are removed is just plain fantasy. That's like asking Microsoft to play nice. Sorry, it's just never going to happen.

[ Reply to This | # ]

Free Software
Authored by: Anonymous on Saturday, November 24 2012 @ 06:05 PM EST
> The first group is also well aware of the irreconcilability
> between typical patent licensing terms on the one hand,
> and Free Software on the other.

I would add that the second group seem unaware that Free Software
is not untrammeled. The second group I define as that sector of corporate
America for whom the prime directive is to monetise -all- fruits of labour,
even tho' Tkilgore's second group includes academics and lawmakers.

The debate is not helped by Stallman's descriptions of Free Software
that create visions of free as the wind, unable to be captured in
commercial packages. The second group need to be made aware
that Free Software earns its freedom by means of a Copyright Licence,
which places duties and obligations on the licensee; that although
the software is free, a commercial package can be constructed
around it. As for asking the difference between hardware and software,

> In the famous words from Cool Hand Luke,
> "What we have here, is a failure to communicate."

Maybe that's the starting point for a fix.

[ Reply to This | # ]

News Flash: US Outsources software industry...
Authored by: Anonymous on Saturday, November 24 2012 @ 06:24 PM EST
Israel, Russia, and Canada becoming global software incubators. US software
companies racing to offshore to avoid insanity of US patents.

Side note: Silicon Valley real estate prices continue downward trends.

Next up: Microsofties say US software industry expects bright future. US patent
system is healthy.

[ Reply to This | # ]

My Takeaway From This Report
Authored by: rsteinmetz70112 on Saturday, November 24 2012 @ 08:49 PM EST

RMS as usual by his idiosyncratic demands alienated a large portion of the
audience and an even larger audience was denied exposure to his powerful


The lawyers lined up against the programers.


Since the whole world recognizes that the current system is broken relative to
software the solutions that involve Congress are problematic.


Since Congress in unlikely to act decisively.

From my perspective the only likely Congressional action is to return appellate
jurisdiction over patents to the various districts.

That would result in splits between the districts ans allow the Supreme Court to
resolve the discrepancies according to recognized principals of law.

Just my humble suggestion.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

What about copyright?
Authored by: Anonymous on Sunday, November 25 2012 @ 03:48 AM EST
Which is one aspect that i've found completely missing from
this discussion.

Do feel free to correct me, but software is as far as i know
unique in that it is 'protected' by *both* copyright *and*
patents. You an not copyright a drug, you can not patent a
novel. Yet you can assert both copyright and patents on

The protection of copyright with its effectively infinite
duration (as long as Disney stakes out for Mickey Mouse) was
applied to software before ever patents where extended into
applying to he software world.

I think that even mr. Stallman will agree that copyright -as
protection- is *enough* for software, no need to put up the
'extra' patents-based 'protection' of the concepts used in

[ Reply to This | # ]

Thank you for this detailed report!
Authored by: Anonymous on Sunday, November 25 2012 @ 09:49 AM EST
The conference sounds extremely interesting...

This is the clearest demonstration yet of the wide gulf between the legal
profession and the software industry on the topic of patents. The legal
guys /still/ don't understand that they have created a very serious problem
which is completely anti-innovation and is a huge expensive drag on the
entire economy.

Also, this conference shows yet again how lucky the world is to have
someone like Richard Stallman. He saw clearly the kind of problems
software patents were going to cause, and has been warning about it for

Stallman fights for the freedoms of all computer users. Many people try to
dismiss him as a crackpot with extreme ideas or views, and yet time and
time again he is shown to be right. But for his foresight, and efforts to do
something positive about it (e.g. the GPL, founding the FSF) the world we
live in today might have significantly less freedom for computer users.

I don't always agree with Stallman, but about software patents I think he is
100% right. They are a slow-motion catastrophe, and exempting all
software running on a general-purpose computer from being able to
infringe a patent just by running, would go a long way towards solving the
problems that software patents are causing.

[ Reply to This | # ]

  • They understand - Authored by: Anonymous on Monday, November 26 2012 @ 06:27 PM EST
Need draft legislation!!!
Authored by: dwheeler on Sunday, November 25 2012 @ 06:47 PM EST
We need draft US legislation text to abolish software patents, one that briefly
defines what "software patents" are, why they should be abolished, and
makes it clear. Sure, it is unlikely to be passed in the short term, but if
some specific text could be agreed on, a bunch of people could press it.

I think that partial solutions (e.g., fighting "bad" patents) are more
likely to have a chance, so draft those too. We need to have specific text
proposals, supported by arguments and rationale, so that people can start
thinking about them.

[ Reply to This | # ]

Books and Movies need patent protection too ...
Authored by: cassini2006 on Sunday, November 25 2012 @ 08:24 PM EST

The more I think about it, I come to realize that these legal experts are correct. Patenting should be expanded to more areas and more abstract areas of endeavor.

Imagine the promising impact of patents in literature. If author A invented a novel with a new crime drama in it, then there is not reason why they should not be able to claim a monopoly. Pixar should have a monopoly on 3-D rendered toy movies. This is new work, and it deserves to be protected from copycat writers and producers that make movies with similar concepts.

Free speech rights are unimportant. Patents for all authors! not just software authors!

[ Reply to This | # ]

Machines, methods and transformations
Authored by: Ian Al on Monday, November 26 2012 @ 04:35 AM EST
§ 101. - Inventions patentable

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The Supreme Court opined that process included methods and that both were defined by patent law such as not to preclude business patents.

One of the only two things I disagreed with from the various panels was the comment from Michael Risch. I include Tkilgore's comment because he expresses concisely my reason for disagreeing:
Obviousness. He mentions the Groklaw discussion and the view that the invention was the general-purpose programmable computer and not the programs which people write to run upon it, which therefore will all be in some fundamental sense obvious. He explicitly rejects this characterization, and says that the problem with obviousness is: What was the problem? That might be the biggest part of the problem. Because of this, he is unwilling to reject categorically the patenting of software.

My [Tkilgore's] comment:

It is not clear to me what Risch's boundaries are for patentability. If patentability hinges upon non-obviousness due to having asked the right question to solve, are we not back again to patentability of ideas and concepts? The logic genuinely escapes me.
I think that Michael Risch's comment comes from the view among patent lawyers (and that has been repeated in Groklaw comments, from time to time) that a novel functional solution to a problem is patentable subject matter.

They use the Fonar v. GE decision to support the incorrect legal theory that patents, including patents that are applied to solutions expressed in software on a computer, can be on the abstract solutions to a problem expressed as claims to abstract functions in the patent claims.

I reprinted Sec. 101 to show that this is not part of the law. It is not legal to attempt to obtain patent protection on the solution to a problem because solutions to problems are, by law, not patentable subject matter. The only subject matter accepted by the law is given in § 101.

There are no software patents because they would be inventions made of software. Software patents cannot be inventing new materials because there are no elements or compounds in software. Patented software inventions can either be machines or processes made up of software components. (As I have mentioned before, the concept of duality whereby an invention can be, at once, a machine and a process or method is not a lawful concept. 101 does not say process and machine and material.)

The only software components are algorithms. A machine made of algorithms is not patentable subject matter. You know why. A software process can only be made of software algorithms. The patents claimed to be infringed by software do not contain processes made of software algorithms.

The patent in Mayo was yet another patent on the solution to a problem expressed as abstract functional claims. Again, § 101 tells us that was not a specific, patentable process, but a set of functional claims proposing a solution to an abstract problem narrowed to a specific physiological issue and a specific drug.

In my view, the conference not only identified the serious problems coming from software patents, it identified the problems coming from all patents, mainly in the US, but also in the rest of the world.

I got one new thought from the conference and one new thought from Tkilgore's comments. From the conference:
What about experts to decide novelty or patentability?

Grewal: Hmm. Maybe.
That would need to be an expert on patent law and not patent lawyering, I would say.

The second point was made by Richard Stallman, but I almost missed it until Tkilgore's summary drove the point home:
Those who hold such views as described above, based upon their own experience and background, find a great resonance in the proposal of Richard Stallman, simply to get rid of something which was never asked for, never wanted, and does great damage.
§ 101. 'Whoever invents or discovers any new and useful process...' and here we have the inventors of software machines and processes saying that they don't want the patent protection made available to them under the law. Again, the reason for this is that protection for software inventions is not available under the law. The patented inventions used against them are invalid abstract function patents according to the patent law in §101.

All of the real problems noted in the conference are rooted in the awarding and misuse of these invalid patents. Keynote speaker, Pam Samuelson:
low quality
inadequate disclosure
functional claiming
incompatibility of software and patents
gamesmanship about RAND and FRAND

The Supreme Court does not like computational patents.
This is a terrible misrepresentation of the Supreme Court. The Supreme Court in Benson, Chakrabarti, Flook, Diehr, Bilski and Mayo, say that patent law must be followed and that these opinions detail how the law applies to patenting inventions. All of these cases (including Bilski, whereby the patent could not be a realisable and useful invention without putting it on a computer) are about inventions on a computer.

However, the issues she raises are those of illegal 'functional claims' patents, the challenges arising from the process of patenting the unpatentable and the appalling misuse of these illegal patents for trolling, anticompetitive actions, attempts to use pools of illegal patents to monopolise legal technology patents and the patent abuse of the legitimate technology patent owners trying to achieve an open market for technology by FRAND declarations and letters of assurance to SSOs.

I like the idea of an 'escalating or steeply progressive scale of renewal fees for patents'. If a patent is valid and genuinely useful, then the owners will, easily, be able to fund renewals out of royalty payments. It would be a major challenge to trolls. It would do nothing to stop patent misuse by major companies for anticompetitive purposes.

Since there are no software patents and cannot be any, by law, it would not affect our favourite technology at all. However, the true solution to the patent system in general and the damage to the practise of the software and computing arts is to abide by the law: the Supreme Court has been telling you this for years.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

A Report on the Santa Clara Conference on Software Patents by Tkilgore ~pj
Authored by: kattemann on Monday, November 26 2012 @ 04:54 AM EST
Thank you, thank you, both for the report and the clear, thoughtful summary of
the two groups thinking. It was to me a bit of an eye opener.

I have a feeling - no more - that you may be in a position that has some
influence on the second group. I wish you could point the law department of your
university to this report, especially to your summary and comments. I think it
needs to be made widely known to the patent lawyers - maybe starting with the
law professors and their students.

[ Reply to This | # ]

A Report on the Santa Clara Conference on Software Patents by Tkilgore ~pj
Authored by: Anonymous on Monday, November 26 2012 @ 04:54 AM EST
"Some of the members of the second group almost instinctively think of
software and especially of technically advanced software as being developed by
large companies and then sold to a comparatively passive public. They may know
of the existence of Free Software, but even so they tend unconsciously to
discount its social effects."

They also disregard software originating from different research fields (be that
computer science related or not), where it can happen that when a totally novel
idea - which gets either patented or publically published at conferences and
journals - is transformed into a software implementation this implementation can
be found to infringe on all sorts of software patents. Just think about this for
a moment, since I think it's simply crazy.

In my view - as someone with a CS degree, ~20 years in computers and software,
and a researcher who publishes and codes - every software is nothing more than
one specific IMPLEMENTATION OF AN IDEA, an idea which can be translated into a
series of algorithmic steps and expressed as program code. Just like writing it
down for publication and/or presentation. This should not be patentable in the
sense that patenting has today.

[ Reply to This | # ]

    Director Kappos's Speech on Software Patents, the PTO, and Innovation
    Authored by: Anonymous on Monday, November 26 2012 @ 08:19 AM EST

    Extracts from second paragraph:

    Quote: By getting that right, we grant patents only for great algorithmic ideas worthy of protection...

    Director Kappos's Speech on Software Patents, the PTO, and Innovation

    Groklaw vs Kappos.

    [ Reply to This | # ]

    Canadian Supreme Court provides some clarity on patent system
    Authored by: Anonymous on Monday, November 26 2012 @ 03:32 PM EST
    This article appears to have some relevance to the topic. report on SCOC decision

    [ Reply to This | # ]

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